Construction Law Expertise

🚨 STOP: Construction’s biggest lie: Technical skills protect your projects! Engineers construct, but in the end only judges and lawyers resolve claims While project managers work tirelessly to avoid functional deadlocks and streamline documentation Technical execution often uncovers harsh realities that disrupt even the best-laid plans. When these complexities surface—bringing challenges no one anticipated—expenses skyrocket beyond original agreements, and suddenly you’re facing claims worth millions. But here’s where it gets dangerous: Most people assume ordinary contract principles will protect them. They’re dead wrong. Why Traditional Contract Law Fails in Construction Take this real scenario: A project’s complexity increases dramatically during implementation. Does this alter the scope? Ordinary contract says yes parties did not foresee while entering contract. Construction law says wait - Lets look at the commercial reality De Beers case reveals a different reality—the court held that increased complexity doesn’t automatically change scope, even when the employer failed to disclose sufficient information. Even more shocking? In the Re Bridge UK case, courts awarded claims based on 50% probability of wasted employee time because traditional “proof” simply didn’t exist. This would be unthinkable in general contract law, yet it’s becoming standard in construction. The Million-Dollar Knowledge Gap Construction law has evolved into a specialized discipline with unique heads of losses and principles shaped by industry realities—not textbook theories. While general law and project management knowledge seem sufficient, they create dangerous blind spots that cost clients millions in poorly handled claims. The Elite Advantage Smart industry leaders are discovering that construction law requires constant adjustment, innovation, and precedent mapping that harmonizes industry practices with commercial realities. The secret? Learn construction law from lawyers, but think like engineers who understand the environment and realities that actually shape legal outcomes. ------------------------------------------------------------ 💡 The Bottom Line: Construction’s hardest problems aren’t solved by blueprints or schedules—they’re settled in courtrooms. Master the law shaped by real-world complexity, or watch complexity shape the outcome for you. Which side of this divide will you choose? #Construction #Arbitration #InternationalArbitration #Projects

An issue which often arises in practice for construction and infrastructure practitioners is whether a plaintiff has failed to mitigate if it hasn't let the builder rectify defective work or complete incomplete work. This issue often arises after termination, where the employer is suing for loss of bargain damages. The outgoing builder says that it made a good, post-termination to complete the project, and that the replacement builder was more expensive and slower than it would have been. A recent Victorian Court of Appeal decision, Bata v Pathik [2026] VSCA 138, confirms the basic principles which govern this area: see particularly at [61]-[70]. Key points for practitioners: 1. A plaintiff must take all reasonable steps to mitigate loss, and can't recover for reasonably avoidable loss: [61]. There's no duty to mitigate loss; the consequence is a reduction in damages: [61]. 2. The onus of establishing failure to mitigate is on the defendant: [62]. This raises a question of fact: [62]. Reasonableness is to be assessed in light of the circumstances of the case at the time: [62]. The standard is not a high one, because the defendant is the wrongdoer: [62]. Conduct isn't unreasonable merely because the defendant can point to other more beneficial conduct: [62]. 3. In a building case, there's no invariable requirement that the employer must provide the builder with an opportunity to rectify defects: [65]. The question is always whether it's reasonable in the circumstances: [65]. 4. A relevant consideration is whether the builder's offer to rectify is genuine (in Bata it was held that it wasn't): see at [65]. Bata is consistent with Ceerose [2025] NSWCA 235 at [28]-[40]. In that case, it was held that there was no duty to give the builder an opportunity to rectify defects, and the evidentiary onus on mitigation didn't shift to the employer just because the builder wasn't given that opportunity. In many (perhaps most) cases, an offer to rectify by an outgoing builder can properly be refused because the whole reason the issue has arisen is because the outgoing builder has fallen short - whether because of defects, delay or otherwise. It's not unreasonable not to re-employ a poor builder. However, if you're advising the outgoing builder, provided the client is happy to be re-employed (on a cost plus basis), there's rarely a downside in making an offer to return to complete the project. It gives you another argument in the dispute which will inevitably arise. The aim should be to make the offer as compelling as possible, to maximise the prospects that it can be deployed as a persuasive argument in support of a mitigation defence.

Untangling the Knot: A Guide to Concurrent Delay in Construction Claims Navigating the complex and often contentious issue of concurrent delay is critical for anyone involved in construction claims and project management. Richard J. Long, P.E., P.Eng., provides a masterful framework in his article, "Analysis of Concurrent Delay on Construction Claims." The document meticulously breaks down this "vexed and complex technical and legal issue," where owner-caused and contractor-caused delays overlap, challenging the equitable determination of time extensions and cost liabilities. Key insights from Long's analysis include: 🔹 Defining Concurrency: True concurrent delay involves separate, overlapping causes of delay on parallel critical paths, where each event independently would delay the project completion. 🔹 Global Legal Landscape: Treatment varies significantly by jurisdiction. The article contrasts approaches, from the U.S. courts which often deny cost recovery unless delays can be clearly apportioned, to English law's "Malmaison" approach which typically grants time extensions for owner-risk events despite contractor-caused concurrent delay, while denying delay costs. 🔹 The Prevailing Principle: The international construction industry has largely adopted the principle that during periods of concurrent delay, the contractor is not entitled to recover its delay costs, and the owner is not entitled to liquidated damages. The losses lie where they fall. 🔹 The Role of CPM Analysis: Critical Path Method scheduling is emphasized as the essential analytical tool to fairly identify, quantify, and apportion delay responsibility when concurrency exists. 🔹 Practical Guidelines: The article concludes with actionable steps, stressing that parties must first look to their contract, then utilize windows-based CPM schedule analysis to determine entitlements to time and money, carefully applying principles of causation. This article is an indispensable resource for understanding how to equitably allocate responsibility and damages, moving beyond conflict toward resolution. #ConstructionLaw #ConstructionManagement #ContractLaw #Legals #CardinalChange #ConstructionContracts #ChangesClause #ProjectDelivery #LegalDoctrine #Engineering #ProjectManagement #DelayClaims #ContractManagement #DisputeResolution #ProjectControls #ContractAdministration #ClaimsManagement #ConstructionIndustry #BusinessOfConstruction #Construction #RiskManagement #ProjectManagement #ConcurrentDelay

Contract Signed or Not Signed? What happens when a contractor starts work on site—only for the developer to later deny that any contract was signed? Sounds unbelievable? That’s exactly what unfolded in Ubhi Construction Ltd v Aspire Enterprises (UK) Ltd [2024] EWHC 1089 (TCC). Ubhi Construction believed it had a signed JCT contract worth £1.39M to build 14 houses. They mobilised, fenced the site, installed cabins—and waited. But Aspire Enterprises later insisted: “No contract was signed. We only agreed to pay £30,000 for site clearance.” So, was there a contract? The High Court said yes. The judge found: The JCT contract was signed by a key figure at Aspire, despite claims to the contrary. Emails and conduct after the signing showed both parties behaved like there was a binding agreement. The £30,000 payment (made without an invoice) and subsequent request to account for it contradicted Aspire’s claim. The court awarded Ubhi: £27,440 for site setup and equipment hire £279,675 in lost profits (20% of the contract value) Key Takeaways for Contractors: 1) Always keep a clear paper trail—emails can win (or lose) your case. 2) Avoid informal or conditional agreements, especially where funding is involved. 3) If you’re starting work before formal approval, ensure the contract reflects that risk. This case is a powerful reminder: what feels “obvious” today might need hard evidence tomorrow. Keep your records tight, and your contracts tighter. The full judgment is a concise 33 pages—and refreshingly free of legalese. Worth a read for all construction professionals. #ConstructionLaw #DisputeResolution #ContractManagement #ConstructionProfessionals #LessonsFromPractice #JCTContracts #UKConstruction

I am currently in Abu Dhabi, and the US/Iran situation in the Middle East is creating some legal and commercial risks for construction projects. Here are some issues to consider: 1. Hostilities - Classic triggers for force‑majeure clauses in construction and EPC contracts. 2. Force majeure - Many GCC/FIDIC‑based contracts provide relief for unforeseen events, enabling contractors to claim extensions of time or suspend performance. 3. Notices - Parties must follow strict notification requirements to preserve claims. 4. Insurance - War‑risk insurance is being withdrawn, repriced, or severely limited, creating immediate exposure for ongoing projects. 5. Supply Chain Issues - Construction projects rely heavily on global logistics, now directly impacted by the conflict. Potentially leading to claims for delay, variation orders, or contract renegotiation. 6. Cost Escalation & Price Adjustment Claims – As shipping routes are disrupted and insurance costs rising, contractors face significant cost increases. Construction contracts are restricted in this respect, but contractors might seek relief under hardship or change‑in‑law provisions. 7. Compliance, Sanctions & Geopolitical Restrictions - U.S. and other sanctions on Iran create compliance risks for companies operating in the region and their international supply chains. 8. Site Safety, Security & Duty of Care - Attacks on civilian infrastructure and military bases increase party obligations. Consider implementing enhanced security protocols, evacuation plans, and risk assessments. 9. Governments Restrictions - They could and are imposing airspace closures, work stoppages, and movement restrictions, triggering delays and/or compensation events, depending on the contract conditions. What are your experiences so far? #constructionlaw #constructioncontract #GCC #epc #FIDIC #forcemajeure #unforseenevents #notices #insurance #supplychain #costescalation #sanctions #compliance #geopolitical #sitesafety #dutyofcare #airspace #workstoppage #riskassessments #evacuationplan #war #delay #disruption #lexology #recognisedexpert #constructionexpert #whosewho

In almost every construction arbitration, one party will invoke the SCL Delay and Disruption Protocol, and the other side will dismiss it as irrelevant because it does not form part of the contract. The best arguments I have heard for relying on the Protocol are that: (1) Experts will usually accept that it provides a credible guideline in assessing delay and disruption and that their evidence should be prepared broadly in alignment with it (2) It provides a statement of planning best practices and the application/constraints of different methodologies to support a common sense/rational assessment of the situation (3) Courts and arbitrators have accepted it as helpful guidance in carrying out a rational/common sense assessment of delay and disruption (4) It has been endorsed in the leading construction law texts like Hudson and Keating as helpful guidance in a variety of contexts Ultimately, the best the Protocol can be is guidance; it will rarely be conclusive and cannot be dismissed outright. It must demonstrate its value by being logical, rational, and appropriate guidance in each case. ____ If you want more of these insights sign up for my newsletter: https://lnkd.in/g_mQDNGB ____

In my experience as a neutral, I often deal with the concept of ‘Time at Large’. It gets thrown around a lot in construction disputesit, but it applies in unique circumstances. The principle is simple: if the employer delays the works and the contract has no valid mechanism to extend time, the original completion date falls away. The contractor must then finish in a reasonable time. But here’s the truth, modern contracts (FIDIC, NEC, JCT, etc.) do contain robust Extension of Time clauses. When those clauses are operable, time at large may not arise. The contract governs the Notice requirements, time bars and consequences of concurrent delay. So the real risk isn’t “time at large”. The real risk is not operating your EOT machinery correctly. For project teams, the takeaway is clear: 1. Draft clear EOT provisions. 2. Give timely notices. 3. Manage employer caused delay properly. AC L Chartered Institute of Arbitrators Kenya Branch Construction News Construction Law Institute CIArb Zambia Young Members Group

Urgent Judicial Expert Measures vs. Arbitration Agreements: Where Is the Line? A very interesting procedural issue recently arose before the Qatar Investment and Trade Court in Appeal Case No. 00791/2026, concerning the relationship between arbitration agreements and urgent judicial expert measures in construction disputes. The Appellant sought the appointment of engineering experts to inspect a hotel construction project and document the project's physical and technical status, including incomplete works, conformity with contractual specifications, defects, remaining works, and estimated completion costs. The Court of First Instance declined the application, finding insufficient urgency to justify an interim judicial measure. On appeal, the Court addressed the argument that the application was inadmissible due to the arbitration clause contained in the subcontract. Relying on Article 9 of Qatar Arbitration Law No. 2 of 2017, the Court reaffirmed that parties may seek interim and conservatory measures before the urgent judiciary without waiving their arbitration agreement, and therefore rejected the jurisdictional challenge. What makes the case particularly interesting is the apparent expansion of the expert's mandate beyond pure evidence preservation. The expert was directed, from a technical rather than legal perspective, to examine: • whether delays occurred and who was responsible; • whether payments were made in accordance with the contract; • whether either party breached its obligations; and • whether damages were suffered and their value. This raises an important question. On one hand, construction projects are dynamic environments where evidence may disappear, works may be altered, and replacement contractors may fundamentally change the factual matrix. Judicial assistance can therefore play a critical role in preserving evidence and protecting rights pending arbitration. On the other hand, issues such as delay responsibility, contractual breach, and damages traditionally sit at the heart of an arbitral tribunal's jurisdiction. This leads to several discussion points: 🔹 When does an expert appointment cease to be a conservatory evidentiary measure and begin encroaching upon arbitral merits? 🔹 Is preservation of technical evidence alone sufficient urgency to justify court intervention despite a valid arbitration clause? 🔹 Can courts permit expert findings touching on delay, breach, and damages while preserving the integrity of the arbitral process? 🔹 Does this approach align with the UNCITRAL Model Law and international arbitration practice? Construction disputes often sit at the boundary between legitimate judicial assistance and impermissible interference with matters reserved for arbitration. I would be interested to hear the views of arbitrators, counsel, engineers, delay analysts, and quantum experts in Qatar and other jurisdictions. #Arbitration #ConstructionArbitration #ConstructionLaw #ADR #QatarLaw #Litigation

Why Contract Law Matters for Engineering Project Managers If you want to be a successful project manager in the construction industry, you need to know contract law. Well-thought-out contracts ensure the smooth and successful execution of projects. Whether you’re an aspiring project manager or a seasoned professional, a strong understanding of the law governing construction contracts is essential and will empower you to make informed decisions, minimise risks and disputes, and foster strong relationships with project stakeholders. Contracts are the foundation of engineering projects, defining the rights, obligations, and responsibilities of all parties. Well-structured contracts provide clarity, accountability, and help prevent costly disputes. For project managers, a strong understanding of contract law is essential to: • Choose the right contract type: Understanding procurement models (e.g., design and build, build-only) ensures the best fit for the project. • Interpret and negotiate terms: Legal knowledge enables effective negotiation, protecting organisational interests. • Manage scope and change: Clear contract provisions help control scope changes, minimising unexpected costs and delays. • Resolve disputes efficiently: Legal awareness allows managers to negotiate or take action with confidence. At the end of the day, contract law isn’t just for lawyers. A solid understanding of it helps project managers reduce risk, keep projects on track, and avoid unnecessary headaches. Case Summary: Fletcher Construction v Spotless Facility Services (2020) This case highlights the importance of legal compliance in construction contracts. Spotless, the mechanical services subcontractor for the Commercial Bay project in Auckland, issued a payment claim of $2.07 million. Fletcher responded with a payment schedule deducting $6 million, claiming Spotless owed them $4.06 million. Spotless challenged the validity of Fletcher’s payment schedule, arguing it lacked clear reasoning and calculations for the deductions. As a result, Spotless suspended work due to non-payment. The High Court ruled in Spotless’s favor, upholding the suspension and ordering Fletcher to pay, as their payment schedule failed to comply with section 21 of the Construction Contracts Act 2002. Key Lesson: Payment schedules must clearly outline and justify deductions to be legally valid. Failure to comply with the Act can lead to contract suspension and significant financial consequences.

𝐖𝐡𝐲 𝐋𝐨𝐜𝐚𝐥 𝐋𝐚𝐰 𝐚𝐧𝐝 𝐄𝐧𝐯𝐢𝐫𝐨𝐧𝐦𝐞𝐧𝐭 𝐌𝐮𝐬𝐭 𝐒𝐡𝐚𝐩𝐞 𝐘𝐨𝐮𝐫 𝐏𝐫𝐨𝐣𝐞𝐜𝐭 𝐂𝐨𝐧𝐭𝐫𝐚𝐜𝐭𝐬 In today’s globalized project landscape, one truth stands out: even the most robust contract can unravel if it ignores the local legal and business environment. As organizations expand across borders, the need to carefully tailor contracts to local realities has never been more critical. 𝐓𝐡𝐞 𝐇𝐢𝐝𝐝𝐞𝐧 𝐑𝐢𝐬𝐤𝐬 𝐨𝐟 ❞𝐂𝐨𝐩𝐲-𝐏𝐚𝐬𝐭𝐞❞ 𝐂𝐨𝐧𝐭𝐫𝐚𝐜𝐭𝐬 It’s tempting to rely on familiar, standard contracts-especially when time is short or teams are working across multiple jurisdictions. But here’s the catch: a contract that works perfectly under one legal system can produce unexpected-and sometimes costly-results under another. For example, a clause that’s enforceable in a common law country may be interpreted very differently in a civil law jurisdiction. The local law governing the project location can also automatically imply certain terms, regardless of what’s written in the contract. 𝐖𝐡𝐲 𝐋𝐨𝐜𝐚𝐥 𝐀𝐝𝐯𝐢𝐜𝐞 𝐈𝐬 𝐍𝐨𝐧-𝐍𝐞𝐠𝐨𝐭𝐢𝐚𝐛𝐥𝐞 Before signing, it’s essential to seek local legal counsel. Understanding the regulatory environment-such as permitting processes, labour laws, or visa requirements for personnel-can prevent costly surprises down the line. Commercial realities matter too: local supply chain dynamics, labour availability, and productivity norms can all impact project timelines and costs. 𝐀𝐯𝐨𝐢𝐝𝐢𝐧𝐠 𝐃𝐢𝐬𝐩𝐮𝐭𝐞𝐬 𝐒𝐭𝐚𝐫𝐭𝐬 𝐁𝐞𝐟𝐨𝐫𝐞 𝐭𝐡𝐞 𝐏𝐫𝐨𝐣𝐞𝐜𝐭 𝐃𝐨𝐞𝐬 Many disputes around delay and disruption stem from poor assumptions about the local context. If a contractor underestimates the time needed for permits or overestimates local labour availability, the resulting delays can turn into claims and disputes. These are not just legal headaches-they can erode trust and damage long-term business relationships. 𝐏𝐫𝐚𝐜𝐭𝐢𝐜𝐚𝐥 𝐒𝐭𝐞𝐩𝐬 𝐟𝐨𝐫 𝐏𝐫𝐨𝐣𝐞𝐜𝐭 𝐒𝐮𝐜𝐜𝐞𝐬𝐬 ✅ Always review and adapt standard contracts to the local legal environment. ✅ Seek both legal and commercial advice early in the negotiation process. ✅ Allocate risks and costs transparently, based on a realistic understanding of local challenges. ✅ Don’t assume that what works in one country will work in another-test every assumption. 𝐅𝐢𝐧𝐚𝐥 𝐓𝐡𝐨𝐮𝐠𝐡𝐭 Success in international projects isn’t just about technical expertise or financial muscle. It’s about respecting the unique legal and business environment of each location. By investing in local knowledge upfront, organizations can avoid costly disputes and lay the foundation for smoother project delivery. #ContractManagement #InternationalProjects #LegalCompliance #RiskManagement #DisputeResolution