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International Construction Law Review

CORRESPONDENT’S REPORT: UNITED STATES

MS PERLMAN

Arent, Fox, Kintner, Plotkin & Kahn, Washington DC

AUTHORITY OF ARBITRATORS TO AWARD TREBLE DAMAGES AND ATTORNEY FEES

Arbitration awards are generally enforceable in the United States under federal1 and state2 law. There are, however, very limited bases for challenging an arbitration award. The Federal Arbitration Act’s bases for vacating an arbitration award are fraud, arbitrator bias, and arbitrator misconduct, as well as decisions in which the arbitrators so imperfectly executed their powers that a mutual, final award on the subject-matter was not made, or in which the arbitrators exceeded their powers: 9 USC §10. State law and the Convention on the Recognition of Foreign Arbitral Awards of 10 June 1958 provide similar bases for vacation of arbitration awards.
In a construction case decided in January 2002, the Supreme Judicial Court of Massachusetts3 dealt with the question of whether arbitrators exceeded their powers when they awarded treble damages and attorney fees to a subcontractor who had not been paid by the prime contractor. Drywall Systems, Inc v. ZVI Construction Co Inc. 4 The arbitration clause in Drywall Systems provided that the parties must submit to arbitration “any controversy or claim arising out of or related to the contract”. This language is contained in American Institute of Architects standard form contracts and is typical of arbitration clauses used in the US both for construction and commercial arbitration. The arbitrators found that the prime contractor had, wilfully and knowingly, not paid the subcontractor. Applying a Massachusetts unfair competition statute, Chapter 93A of the Annotated Laws of Massachusetts, the arbitrators awarded treble damages and attorney fees.


[2002
The International Construction Law Review

406

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