Chapter 7 - § 7.7 • CONDITIONS PRECEDENT TO THE OBLIGATION TO ARBITRATE

• Jurisdiction: Colorado

§ 7.7 • CONDITIONS PRECEDENT TO THE OBLIGATION TO ARBITRATE

As in any contract, there may be conditions precedent that must occur or be performed before there is an obligation on one or both of the parties to perform. Common conditions precedent to the obligation to arbitrate include engaging in negotiation or mediation in an attempt to resolve the dispute. These actions may also include document exchange, dispute evaluation, non-binding fact-finding, and similar steps. These provisions generally will be enforced as conditions precedent to arbitration.¹⁸⁹

§ 7.7.1—Mediation As A Condition Precedent To Arbitration

Fulfillment of a contractual mediation requirement has been enforced as a condition precedent to arbitration.¹⁹⁰ Moreover, if the party seeking arbitration does not fulfill the condition precedent in good faith, the arbitration agreement may not be enforced.¹⁹¹

Whether conditions precedent to arbitration have been fulfilled is for the arbitrator to determine, under both the CUAA and the CRUAA.¹⁹²

The CRUAA, C.R.S. § 13-22-206 (2016), allows the arbitrator to make the determination of whether a condition precedent has been fulfilled. Under state and federal common law, absent agreement of the parties, whether conditions precedent to arbitration have been fulfilled is a question for the arbitrator.¹⁹³

See § 24.6.

§ 7.7.2—Design Professional Certification And Certificate Of Good Cause

Some construction contracts require issuance of an architect's certification or decision prior to specific action being taken by the owner or contractor. For example, a contract may require the architect to certify that the contractor is in default as a condition precedent to the owner's termination of the contractor for default. An architect's decision on a claim for additional compensation or a time extension may also be a prerequisite to initiation of arbitration.¹⁹⁴

In a 1925 decision, where an architect's certificate was issued prior to an owner's default termination of the contractor, but the contract did not make the architect's decision final and binding, the contractor was entitled to proceed with arbitration.¹⁹⁵ However, where a claims provision required an architect's certificate and a statement that the decision was final and binding as a condition to arbitration, and the architect's decision failed to contain the statement, arbitration was not available.¹⁹⁶

Construction contracts sometimes provide that an initial decision by the architect shall be...