This article was featured in our 2023 Construction Arbitration Report, which is part of a series of industry-focused arbitration reports edited by Jus Connect and Jus Mundi.
This issue explores the construction industry and presents a goldmine of information based on data available on Jus Mundi and Jus Connect as of May 2023. Discover updated insights into construction arbitration and exclusive statistics & rankings, as well as in-depth global and regional perspectives on construction projects, disputes, & arbitration from leading lawyers, arbitrators, experts, arbitral institutions, and in-house counsel.
THE AUTHORS:
Sandrine Coste, Founding Partner, Lynkea
Betina Damvergi, Consultant, Lynkea
Construction contracts generally provide for a completion date. It has been rightly pointed out that the concept of “time”, and more precisely “time for completion”, is one of the most important legal and managerial aspects in a construction project and, as a result, ranks among the top priorities of all construction project participants (See, Lukas Klee, International Construction Contract Law, 2015 John Wiley & Sons, Ltd, p. 128). That being said, one of the most common characteristics of construction projects is that the works often take longer to complete than initially anticipated. Simply stated, construction projects are frequently “delayed”. According to the second edition of the Society of Construction Law (“SCL”) Delay and Disruption Protocol, “in referring to ‘delay’, the Protocol is concerned with time – work activities taking longer than planned. In large part, the focus is on delay to the completion of the works – in other words, critical delay. Hence, ‘delay’ is concerned with an analysis of time”.
One of the core elements of the construction industry is that every project is, in effect, a prototype which is simultaneously exposed to various factors both within and outside the parties’ control. As a result, delays and disruptions can occur for various reasons including changes in the scope of the works, geotechnical discoveries, labor shortages, missing or incorrect data, force majeure, etc. In other words, while we can all agree on the definition of the term “delay” (according to one of the definitions of the Cambridge dictionary, the meaning of the verb “delay” is: “to make something happen at a later time than originally planned or expected”), for the purposes of a construction project, each party’s perspective can be significantly different when it comes to identifying the specific issues that led to such delay(s).
In order to clarify these issues, the party-appointed or tribunal-appointed expert will, by conducting a delay analysis, “reconstruct” the project’s history in an attempt to clearly identify and understand the origin(s) and cause(s) of the delay(s). By doing so, the expert, armed with the project’s factual background, will support the tribunal’s decision-making process (i.e., allocation of responsibilities and the related financial consequences) by shedding light on what it is that led the works not to be completed by the anticipated time for completion.
Provided that the contract does not provide for a specific method, experts can apply different delay analysis methods (as-planned vs as-built, time slice, time impact analysis etc.), depending largely on the project’s available documentation, as well as the cost of application of a respective method.
The Approach “à la française”
It’s safe to say that, as opposed to the United States (the Association for the Advancement of Cost Engineering (“AACE”) International Recommended Practice 29R-03 Forensic Schedule Analysis or the American Society of Civil Engineers (“ASCE”) 67-17 Schedule Delay Analysis) or the United Kingdom (the 2017 SCL Delay and Disruption Protocol), where technical guidelines have long been in place, and are highly influential all around the world, in France, delay analysis is a relatively new science.
Moreover, as opposed to the United Kingdom, where there exists a specialist court (the Technology and Construction Court) “with specialist judges who deal with all types of construction, engineering and technology disputes”, there are no French courts that are specialized in construction (See, Frederic Gillion, Eran Chvika, Toshima Issur and Dominique Nkoyok, “Construction and projects in France: Overview”, Thomson Reuters, Practical Law).
Additionally, while in terms of French civil proceedings, the use of court-appointed expert witnesses (“experts judiciaires”) is widely established in construction disputes, these experts, who are used to assessing technical issues, often lack the necessary training and experience in delay analysis. Largely based on their understanding of the project, the French experts judiciaires will provide their opinion on the project’s delays, not by applying a specific methodology, but by using their “common sense”. That being said, in the past years, there has been a clear shift in that practice, with some welcomed training courses being organized, and the role of delay experts, while not clearly defined, slowly gaining ground.
Today, the role of delay experts in France is twofold: on the one hand they shall enforce the application of internationally known methods, while ensuring that these methods become standard practice. When conducting a delay analysis, the expert is thus required to consider the familiarity of the parties with the various methods.
Even though the selection of the appropriate method naturally lies at the heart of every reliable analysis, the delay expert must take particular care in the presentation of his analysis so that it can be understood (and accepted) by the parties. In other words, the delay analysis, will not necessarily be limited to the strict application of any given methodology but will be backed up by the relevant factual background, in an attempt to identify the cause(s) of the delay(s) and closely review the timeline of the construction project. In this context, the use of the expert’s common sense could prove particularly useful.
To the extent that it is possible and practical to do so, delay experts should thus be provided with sufficient documentation in order to have a clear understanding of the construction project (i.e., the base works), the programmes, the delay events and their duration.
In the authors’ experience, delay analyses are well received by the French construction world, as they provide the parties with a clear and impartial overview of any given project. Considering the complexity of today’s construction projects, we are confident that in France, these methods are here to stay!
ABOUT THE AUTHORS
Sandrine Coste, one of the founding partners of Lynkea, is a delay and quantum expert, with over 19 years of experience in the construction project industry. Sandrine assists both contractors and employers, and intervenes in various sectors including industry, construction, infrastructure, public and railway works.
After graduating from the ESTP, Sandrine began her professional career in the project planning department of Artelia. She then decided to join Vinci Construction Grands Projets where she worked as engineer and planner. Through these experiences, Sandrine has developed a comprehensive knowledge of issues relating to costs, project planning and management of large-scale construction projects.
Sandrine works in French and English, and is actively involved with LEAN Legal and Contract Services, the International Chapter Committee of the AFDCI, as well as with the Equal Representation of Expert Witnesses association in France.
Betina Damvergi is a consultant at Lynkea. Her practice covers the prevention and resolution of disputes that arise from construction contracts, while she assists with the drafting of delay and quantum expert reports for any dispute resolution procedure, in particular international arbitration and judicial expertise.
Prior to joining LYNKEA in 2021, Betina acquired a solid experience in international arbitration and commercial litigation in several leading law firms in Paris and London as well as at the International Court of Arbitration of the International Chamber of Commerce. She holds an LLM in International and Comparative Dispute Resolution from Queen Mary University of London, where she focused on International Construction Contracts and Dispute Resolution.
Betina works in French, English and Greek, and participates in training courses on the use of FIDIC contracts.
Find more data-backed insights in our 2023 Construction Arbitration Report
