Consolidation or Joinder Clauses
(Construction Contract)

Summary

This consolidation or joinder clause can be used in a construction contract to address the requirements for consolidating multiple arbitration proceedings or joining parties or claims to an existing arbitration where there is a commonality of parties or claims. This clause contains practical guidance, drafting notes, and an alternate clause. Construction disputes often involve disagreements over the cause of adverse impacts leading to construction defects, increased costs, delays, and other consequences to one or more of the participants. Legal theories based on negligence, professional negligence, implied warranties, third-party beneficiary, misrepresentation, and contribution may not depend on the existence of a direct contractual relationship between a claimant and a targeted person. Thus, a participant suffering loss or damage in a construction setting may have a claim against another participant with whom it has not contracted. This means that some construction disputes, especially complex ones, give rise to the need to evaluate who should or can be joined or consolidated in related proceedings. In addition, the participants in a project are dependent on one another to achieve an intended outcome. If even one participant falls short, there may be adverse repercussions on all or many of the rest. Often the issues involved cannot be sorted out without extensive fact-finding and expert analysis. For these reasons, participants in a construction dispute may need to evaluate who should be joined or whether a related proceeding should be consolidated. Capitalized terms used in this clause should conform to those used in the relevant contract. For a full listing of key content covering dispute resolution in construction, see Construction Dispute Resolution Resource Kit. For a full listing of key content covering construction, see Construction Resource Kit.. See also Construction Contract. For a full listing of key content covering subcontract agreements, see Construction Subcontract Agreement Resource Kit. For a list of key resources covering construction-related tasks for associates, in-house attorneys, and interns, see First Year Associate Resource Kit: Construction, Junior Associate Resource Kit: Construction, Summer Associate Resource Kit: Construction, In-House Construction Resource Kit, and Federal Government Summer Intern Resource Kit: Construction.