Dudley Newman Feuerzeig LLP, a Virgin Islands limited liability partnership, is a general civil practice law firm whose members have diverse backgrounds and are drawn from various regions of the United States. Established by a merger in 2019 of two law firms,Dudley, Topper and Feuerzeig, LLP, then the largest law firm in the U.S. Virgin Islands based on St. Thomas, and Nichols Newman Logan Grey & Lockwood, PC, the leading lawfirm based on St. Croix. Both firms were established in the 1970’s. Today DNF is the largest law firm in the Territory, currently with 20 attorneys, nine paralegals and related administrative and support staff with offices located on St. Thomas and St. Croix.
2024
Arbitration Agreements: Will the Federal Arbitration Act Independently Apply to Limit the Time to Appeal a U.S. Virgin Islands Arbitration Award?
The V.I. Supreme Court has found that certain “procedural” terms of the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., related to appealing arbitration awards do not preempt the law of the U.S. Virgin Islands, even if the arbitration agreement has an interstate nexus. See Gov’t of the V.I. v. United Indus., 64 V.I. 312, 321-322 (V.I. 2016) (discussing the inapplicability of 9 U.S.C. § 12, holding that “[t]o the extent the FAA even applies to this matter, this Court previously distinguished between the substantive and procedural aspects of the FAA, and concluded that the provisions of the FAA that merely establish procedures in the federal system—such as those pertaining to jurisdiction, or that establish filing deadlines—do not preempt local law.”); see also Gov’t of the V.I. v. St. Thomas/St. John Educ. Admin. Assoc. Local 101, 67 V.I. 623, 632 (V.I. 2017) (“Since section 10 does not preempt local law . . . it does not matter whether the CBA [containing the arbitration agreement] has a sufficient interstate nexus to trigger application of the FAA because we must apply local law to determine the circumstances under which the Superior Court may vacate or modify an arbitration award”).
Accordingly, 9 U.S.C. § 12 of the FAA, which provides a limited three-month time-period in which to appeal an arbitration award is independently inapplicable to an arbitration agreement, even if it has an interstate nexus, leaving the U.S. Virgin Islands statute of limitations to set the deadline to appeal an arbitration award. A review of the statute of limitations, 5 V.I.C. § 31, reveals two potential time periods to bring an action to modify or vacate an arbitration award. The first is a six-year statute of limitations for an “action upon a contract or liability, express or implied.” 5 V.I.C. § 31(3)(A). The second, and most likely applicable, is the ten-year statute of limitations for an “action for any cause not otherwise provided for in this section.” 5 V.I.C. § 31(2)(A).
Clearly, there is a significant difference between a three-month and a ten-year window to appeal an arbitration award.
Please feel free to contact us to discuss how to draft your arbitration agreements to gain the benefit of the FAA’s more limited time to appeal an arbitration award.
Lisa Michelle Kömives is a Partner in Dudley Newman Feuerzeig LLP’s litigation department. She grew up in St. Thomas, Virgin Islands, and has been practicing law in the Virgin Islands for fourteen years. Her main areas of practice include complex commercial litigation, wrongful termination, creditors’ rights, and personal injury defense and her full biography can be found here.
2024
Construction Contracts with the Government of the Virgin Islands pose serious risks of non-payment for Contractors
You secured a contract with the Government of the Virgin Islands to undertake substantial municipal scale construction and the Government doesn’t pay, now what? Under the Revised Organic Act, Title 48, United States Code, Section 1541, the Government of the Virgin Islands can be sued in cases arising out of contract. While the Government of the Virgin Islands has waived its sovereign immunity for breach of contract claims, government property, however, is exempt from execution.
Under Title 5, Virgin Islands Code, Section 479(a), V.I. Government property is exempt from execution, including “[a]ll property of any public corporation or the government of the Virgin Islands“.[1](emphasis added). The statute does not create separate provisions based on how the Government came to own the property and therefore, any and all property of the Government is expressly exempt from execution. In addition, the Code does not contain any provisions allowing the Government to waive this protection. Hence, the Government cannot contract away its statutory exemption from execution and “[w]hen a contract does not meet statutory requirements, the Court can declare it null and void ab initio or sever the portions that are in violation.[2]
The statute does not, however, affect the Court’s authority to enter a judgment against the Government of the Virgin Islands for breach of contract and does not prevent your company from bringing such lawsuit. The strategy is to draft and structure the contract so that your company doesn’t end up funding the work for the government and DNF can help your company address these issues before it’s too late.
[1] See also Brown v. Farrelly, 28 V.I 345, n.l0 (3d Cir. V.I. l993) (citing 5 V.I.C, 549(a)(4)) (“all property of the Virgin Islands government is exempt from execution”); Lindway v. Government of V.I., 19 V.I. 193, 194 (D.V.I.1982) (money judgment against Virgin Islands government cannot be enforced by writ of execution or writ of mandamus).
[2] Heyl & Patterson Int’l, Inc. v. F. D. Rich Hous. of Virgin Islands, Inc., 663 F.2d 419, 432 (3d Cir. l981) (citing Sargeant v. Gov’t of the V. I., CIV 275 -1970, 10 V.I. 245, 252-253 (D.V.I. 1973)); SIU de Puerto Rico, Caribe Y Latinoamerica v. Virgin Islands Port Auth.,42 F.3d 801, 803 (3d Cir. 1994) (“It follows that VIPA acted beyond the scope of its authority in agreeing to pay accumulated sick leave to retirees, and the sick leave provision of the Agreement is void ab initio and cannot be enforced”).
Please feel free to contact us to discuss construction contracts with the government of the Virgin Islands, or any other business needs.
Alex Moskowitz is a Partner in Dudley Newman Feuerzeig LLP’s litigation department. He has been practicing law in the Virgin Islands for the fourteen years. His main areas of practice include complex commercial litigation, creditors’ rights, and personal injury defense and his full biography can be found here.