Mississippi Arbitration of Construction Contracts

Table of Contents

ARBITRATION OF CONTROVERSIES ARISING FROM CONSTRUCTION CONTRACTS AND RELATED AGREEMENTS.
11-15-101. Agreements to which arbitration provisions apply.
11-15-103. Agreements to submit controversies to arbitration; refusal of binding arbitration provisions in public contracts.
11-15-105. Application for order to proceed with arbitration; stay; determination of issues.
11-15-107. Initiation of arbitration.
11-15-109. Appointment of arbitrators.
11-15-111. Powers of arbitrators to be exercised by majority.
11-15-113. Time, place and notice of hearing; procedure for conduct of hearing.
11-15-115. Representation by attorney at proceedings.
11-15-117. Subpoenas for production of evidence and attendance of witnesses; other discovery.
11-15-119. Nature of remedy; form and time of award.
11-15-121. Fees and expenses.
11-15-123. Modification or correction of award by arbitrators.
11-15-125. Confirmation of award by court.
11-15-127. Form and service of application and notice.
11-15-129. Jurisdiction of circuit courts over arbitration.
11-15-131. Venue of arbitration applications.
11-15-133. Vacating arbitration award.
11-15-135. Application for modification or correction of award; grounds; joinder with application for vacating award.
11-15-137. Order and judgment on award; enforcement; costs.
11-15-139. Preparation of judgment roll; docketing judgment or decree.
11-15-141. Court actions from which appeal may be taken.
11-15-143. Inapplicability of other arbitration provisions.

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ARBITRATION OF CONTROVERSIES ARISING FROM CONSTRUCTION CONTRACTS AND RELATED AGREEMENTS.    

Title 11 Civil Practice and Procedure, Chapter 15 Arbitration and Award §101 - 143

§ 11-15-101. Agreements to which arbitration provisions apply.

(1)  Sections 11-15-101 through 11-15-143 apply only to agreements and provisions for arbitration made subsequent to July 1, 1981.

(2)  Sections 11-15-101 through 11-15-143 shall apply to any agreement for the planning, design, engineering, construction, erection, repair or alteration of any building, structure, fixture, road, highway, utility or any part thereof, and to any purchase by, or supply to, any contractor or subcontractor qualified to do business in this state of any materials to be used in the planning, design, engineering, construction, erection, repair or alteration of any building, structure, fixture, road, highway, utility or any part thereof; provided, however, that nothing contained in Sections 11-15-101 through 11-15-143 shall be construed as amending or otherwise affecting the provisions of Sections 65-2-1 through 65-2-17, section 65-1-89, Section 65-1-91, and Section 77-9-387, Mississippi Code of 1972.

(3)  Sections 11-15-101 through 11-15-143 shall also apply to any agreement for architectural, engineering, surveying, planning and related professional services performed in connection with any of the agreements enumerated in subsection (2) of this section.

(4)  Sections 11-15-101 through 11-15-143 shall have no effect on the establishment or enforcement of any lien provided for in Title 85, Chapter 7, Mississippi Code of 1972.  

§ 11-15-103. Agreements to submit controversies to arbitration; refusal of binding arbitration provisions in public contracts.
    
Two (2) or more parties referred to in Section 11-15-101 may agree in writing to submit to arbitration any controversy existing between them at the time of the agreement, or they may include in a written contract a provision for the settlement by arbitration of any controversy thereafter arising between them relating to such contract or the failure or refusal to perform the whole or any part thereof. Such agreement or provision shall be valid, enforceable and irrevocable without regard to the justiciable character of the controversy. Provided, however, that in the event either party to such an agreement initiates litigation against the other with respect to such agreement, such arbitration provision shall be deemed waived unless asserted as a defense on or before the responding party is required to answer to such litigation. Whenever a provision for binding arbitration is included in the contract documents of a public contract, any bidder may refuse to accept such clause and shall so state on the bid document before entering into such public contract, and such refusal shall not be cause to reject any bid on, or refuse the award of such public contract.  

§ 11-15-105. Application for order to proceed with arbitration; stay; determination of issues.

(1)  Any party to an agreement or provision for arbitration subject to Sections 11-15-101 through 11-15-143 claiming the neglect or refusal of another party thereto to comply therewith may make application to the court as described in Sections 11-15-133 and 11-15-135 for an order directing the parties to proceed with arbitration in accordance with the terms of such agreement or provision. If the court finds that no substantial issue exists as to the making of the agreement or provision, it shall grant the application. If the court shall find that a substantial issue is raised as to the making of the agreement or provision, it shall summarily hear and determine such issue and shall, consistent with such determination, grant or deny the application.
    
(2)  Any action or proceeding involving an issue subject to arbitration under Sections 11-15-101 through 11-15-143 shall be stayed if an order for arbitration or an application therefor has been made under this section. If such issue is severable, the stay may be with respect to such issue only. An order for arbitration shall include the stay.
    
(3)  On application, the court may stay an arbitration proceeding commenced or threatened if it shall find no agreement or provision for arbitration subject to Sections 11-15-101 through 11-15-143 exists between the party making the application and the party causing the arbitration to be had. The court shall summarily hear and determine the issue of the making of the agreement or provision and shall, consistent with such determination, grant or deny the application.
    
(4)  An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown.
 
§ 11-15-107. Initiation of arbitration.

If an agreement or provision for arbitration provides a method for the initiation of arbitration, such method shall be followed. In the absence thereof, the party desiring to initiate the arbitration shall, within the time specified by the contract, if any, file with the other party a notice of an intention to arbitrate which notice shall contain a statement setting forth the nature of the dispute, the amount involved, and the remedy sought. A party upon whom the demand for arbitration is made may file an answering statement to the other party within twenty (20) days after receipt of the initial demand. If no answer is filed within the stated time, it will be treated as a denial of the claim. Failure to file an answer shall not operate to delay the arbitration.  

§ 11-15-109. Appointment of arbitrators.

If an agreement or provision for arbitration provides a method for the appointment of arbitrators this method shall be followed. In the absence thereof, or if the agreed method fails or for any reason cannot be followed, or if an arbitrator who has been appointed fails or is unable to act and his successor has not been duly appointed, the court, on application of a party to such agreement or provision, shall appoint one or more arbitrators. An arbitrator so appointed shall have the same powers as if he had been named or provided for in the agreement or provision.
    
§ 11-15-111. Powers of arbitrators to be exercised by majority.

The powers of the arbitrators may be exercised by a majority of their number unless otherwise provided in the agreement or provision for arbitration.  

§ 11-15-113. Time, place and notice of hearing; procedure for conduct of hearing.

Unless otherwise provided by the agreement or provision for arbitration:

(a) The arbitrators so appointed shall set a time and place for the hearing and cause notification to the parties to be served personally in any manner provided for by law or by registered or certified mail not less than twenty (20) days before the hearing. Appearance at the hearing waives a party's right to such notice. The arbitrators may adjourn their hearing from time to time upon their own motion and shall do so upon the request of any party to the arbitration for good cause shown; provided that no adjournment or postponement of the hearing shall extend beyond the date fixed in the agreement or provision for making the award unless the parties consent to a later date.

(b) A hearing shall be opened by the recording of the place, time and date of the hearing, the presence of the arbitrator and parties, and counsel, if any, and by the receipt by the arbitrator of the statement of the claim and answer, if any.
    
The arbitrator may, at the beginning of the hearing, ask for a statement clarifying the issues involved.

The complaining party shall then present its claim, proofs and witnesses, who shall submit to questions or other examination. The defending party shall then present its defenses, proofs and witnesses, who shall submit to questions or other examination. The arbitrator may vary this procedure but shall afford full and equal opportunity to the parties for the presentation of any material or relevant proofs.

Any party shall be entitled to cross-examine the witnesses of any other party appearing at the hearing. Exhibits, when offered by either party, may be received in evidence by the arbitrator.

The names and addresses of all witnesses and exhibits in order received shall be made a part of the record.

(c) The parties may offer such evidence as they desire and shall produce such additional evidence as the arbitrator may deem necessary to an understanding and determination of the dispute. The arbitrators shall be the judge of the admissibility of the evidence offered and conformity to legal rules of evidence shall not be necessary. All evidence shall be taken in the presence of all of the arbitrators and all of the parties, except where any of the parties is absent in default or has waived his or her right to be present.

(d) The hearing shall be conducted by all of the arbitrators but a majority may determine any question and render a final award. If, during the course of the hearing, an arbitrator for any reason ceases to act, the remaining arbitrator or arbitrators appointed to act as neutrals may continue with the hearing and determination of the controversy.  

§ 11-15-115. Representation by attorney at proceedings.

A party has the right to be represented by an attorney at any proceeding or hearing under Sections 11-15-101 through 11-15-143. A waiver thereof prior to the proceeding or hearing shall be ineffective.  

§ 11-15-117. Subpoenas for production of evidence and attendance of witnesses; other discovery.

(1)  The arbitrators may issue subpoenas for the attendance of witnesses and for the production of books, records, documents and other evidence and shall have the power to administer oaths. Subpoenas so issued shall be served and, upon application to the court by a party to the arbitration or the arbitrators, enforced in the manner provided by law for the service and enforcement of subpoenas in a civil action.

(2)  On application of a party to the arbitration, the arbitrators, in the manner and upon terms designated by the arbitrators, may permit a deposition to be taken of any person.

(3)  Any prehearing discovery other than that referred to above shall only be permissible if agreed to by the parties involved in the arbitration.

(4)  All provisions of law compelling a person under subpoena to testify are applicable.

(5)  Fees for attendance as a witness shall be the same as for a witness in circuit court.  

§ 11-15-119. Nature of remedy; form and time of award.

(1)  The arbitrators may grant any remedy or relief which is just, equitable and consistent with the agreement of the parties which is the subject of the arbitration.

(2)  The award shall be in writing and shall be signed by the arbitrator joining in the award. The arbitrators shall deliver a copy to each party to the arbitration either personally or by registered or certified mail, or as provided in the agreement or provision.
    
(3)  An award shall be made within the time fixed therefor by the agreement or provision for arbitration or, if not so fixed, within such time as the court may order on application of a party to the arbitration. The parties may, by written agreement, extend the time before or after the expiration thereof. A party waives the objection that an award was not made within the time required unless he notifies the arbitrators of his objection prior to the delivery of the award to him.

(4)  An arbitrator may award attorney's fees and costs to a prevailing party.  

§ 11-15-121. Fees and expenses.

Unless otherwise provided in the agreement or provision for arbitration, the arbitrators' reasonable expenses and fees, together with other reasonable expenses, not including counsel fees, incurred in the conduct of the arbitration shall be paid as provided in the award. Such compensation shall be taxed and collected as costs in the suit.  

§ 11-15-123. Modification or correction of award by arbitrators.

Upon request by a party to the arbitration, mailed by registered or certified mail to the arbitrators and opposing party(s) within twenty (20) days of the receipt of the award, to modify or correct the award on any or all of the grounds enumerated in Section 11-15-135, the arbitrators shall, within ten (10) days, modify, correct or affirm the award as they find proper.  

§ 11-15-125. Confirmation of award by court.

Upon application by a party to the arbitration filed within ninety (90) days of the receipt of the later of a copy of the award issued pursuant to Section 11-15-119, or a modified or corrected award as provided by Section 11-15-123 the court shall confirm an award, unless within the time limits hereinafter imposed grounds are urged for vacating, modifying or correcting the award, in which case the court shall proceed as provided in Sections 11-15-133 and 11-15-135.  

§ 11-15-127. Form and service of application and notice.

Except as otherwise provided, an application to the court under Sections 11-15-101 through 11-15-143 shall be by motion and shall be heard in the manner and upon the notice provided by law or rule of court for the making and hearing of motions. Unless the parties have agreed otherwise, notice of an initial application for an order shall be served in the manner provided by law for the service of a summons in an action.  

§ 11-15-129. Jurisdiction of circuit courts over arbitration.
    
The term "court" as used in Sections 11-15-101 through 11-15-143 means the circuit court of the county as provided in Section 11-15-131. The making of an agreement or provision for arbitration subject to Sections 11-15-101 through 11-15-143 and providing for arbitration in this state shall, whether made within or outside this state, confer jurisdiction on the court to enforce the agreement or provision under Sections 11-15-101 through 11-15-143 and to enter judgment on an award duly rendered in an arbitration thereunder and to vacate, modify or correct an award rendered thereunder for such cause and in the manner provided in Sections 11-15-101 through 11-15-143.  

§ 11-15-131. Venue of arbitration applications.

An initial application shall be made to the court of the county in which the agreement provides the arbitration hearing shall be held or, if the hearing has been held, in the county in which it was held. Otherwise, the application shall be made in the county where the adverse party resides or has a place of business or, if he has no residence or place of business in this state, to the court of any county. All subsequent applications shall be made to the court hearing the initial application unless the court otherwise directs.  

§ 11-15-133. Vacating arbitration award.

(1)  Upon application of a party, the court shall vacate an award where:

(a) The award was procured by corruption, fraud or other undue means;
    
(b) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party.

The fact that the relief was such that it could not or would not be granted by a court of law or equity is no ground for vacating or refusing to confirm the award.

(2)  An application under this section shall be made within ninety (90) days after receipt of a copy of the award to the applicant, except that, if predicated upon corruption, fraud or other undue means, it shall be made within ninety (90) days after such grounds are known or should have been known.

(3)  In vacating the award on such grounds, the court may order a rehearing before new arbitrators chosen as provided in the agreement or provision for arbitration or, in the absence thereof, by the court in accordance with Section 11-15-107. The time within which the agreement or provision for arbitration requires the award to be made is applicable to the rehearing and commences from the date of the order.

(4)  If the application to vacate is denied and no motion to modify or correct the award is pending, the court shall confirm the award.  
 
§ 11-15-135. Application for modification or correction of award; grounds; joinder with application for vacating award.
    
(1)  Upon application made by a party to the arbitration within ninety (90) days after receipt of a copy of the award, the court shall modify or correct the award where:
    
(a) There is an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;

(b) The arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or

(c) The award is imperfect in a matter of form, not affecting the merits of the controversy.
    
(2)  If such application is granted, the court shall modify and correct the award so as to effect its intent and shall confirm the award as so modified and corrected; otherwise, the court shall confirm the award as made.

(3)  An application to modify or correct an award may be joined in the alternative with an application to vacate the award.  

§ 11-15-137. Order and judgment on award; enforcement; costs.

Upon the granting of an order confirming, modifying or correcting an award, a judgment or decree shall be entered and be enforced as any other judgment or decree. Costs may be awarded by the court.  

§ 11-15-139. Preparation of judgment roll; docketing judgment or decree.
    
(1)  On entry of judgment or decree, the clerk shall prepare the judgment roll consisting, to the extent filed, of the following:
    
(a) The agreement or provision for arbitration and each written extension of the time within which to make the award;
    
(b) The award;
    
(c) A copy of the order confirming, modifying or correcting the award; and

(d) A copy of the judgment or decree.

(2)  The judgment or decree shall be docketed as if rendered in a civil action.

§ 11-15-141. Court actions from which appeal may be taken.
    
(1)  An appeal from the court may be taken from:
(a) An order denying the application to compel arbitration made under Section 11-15-105;
(b) An order granting an application to stay arbitration made under Section 11-15-105;
(c) An order confirming or denying confirmation of an award;
(d) An order modifying or correcting an award;
(e) An order vacating an award without directing a rehearing; or
(f) A judgment or decree entered pursuant to the provisions of Sections 11-15-101 through 11-15-143.

(2)  The appeal shall be taken in the manner and to the same extent as from orders or judgments in a civil action.  

§ 11-15-143. Inapplicability of other arbitration provisions.

Sections 11-15-1, 11-15-3, 11-15-5, 11-15-7, 11-15-9, 11-15-11, 11-15-13, 11-15-15, 11-15-17, 11-15-19, 11-15-21, 11-15-23, 11-15-25, 11-15-27, 11-15-29, 11-15-31, 11-15-33, 11-15-35 and 11-15-37, Mississippi Code of 1972, which provide for the submission for determination of disputed matter to arbitrators selected by law or agreement, shall not be applicable to those agreements enumerated in Section 11-15-101.