International Construction Law Conference 2024

Is there a law applicable to construction disputes that transcends the governing law of the contract? Are we moving towards a Lex Mercatoria ?

With the widespread use of standard forms of contracts in construction projects, related case law and established principles and guidance notes such as the SCL Delay and Disruption Protocol, are we seeing the advent of a new Lex Constructionis that transcends the governing law of the contract when resolving construction disputes?

International construction contracts, which are often derived from standard forms of contract such as FIDIC, tend to define the parties’ rights and obligations under the contract in some detail as well as the allocation of risks between them. Over the years, we have seen the emergence of a body of case law and legal doctrine based on the interpretation of those standard forms of contract (particularly FIDIC) which has contributed to the emergence of concepts and accepted principles of construction law (e.g critical delays and entitlement to EOT and prolongation costs, concurrency, LDs v. contractual penalty, time bar, acceleration, mitigation, basis of calculation of compensation for prolongation, the role of the Engineer/Contract Administrator when certifying payments under the contract) – outside the strict application of the governing law of the contract – particularly in the context of disputes arising from delay and disruption claims.

Tribunals’ heavy reliance on expert evidence in those construction cases combined with the delay and quantum experts’ reliance on established principles and practices (as set out for example in the SCL Delay and Disruption Protocol) has also contributed to what can be described as a new Lex Constructionis – a subset of Lex Mercatoria –and could give the impression that the governing law of the contract may place a lesser role in the resolution of construction disputes.

The conference will explore

1. Whether there are indeed universally accepted principles of construction law, constituting a Lex Constructionis, which bring greater uniformity of approach when resolving construction disputes by bridging in particular the gap between common law and civil law
2. The variety of sources of this Lex Constructionis; and
3. The whether in practice tribunals are persuaded that this Lex Constructionis should prevail over sometimes unclear provisions of the governing law.

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