Chapter Title 9: International Delay Analysis Protocols: Dichotomies, Synergies and Legal Considerations: The Society of Construction Law (SCL) “Delay & Disruption Protocol,” and AACEI Recommended Practice 29R-03 “Forensic Schedule Analysis”
This chapter was co-authored by: Dr. Jeff Ottesen, PE, PSP, CFCC -Director BRG Consulting, and Emma Schaafsma, Partner at CMS
Abstract: For seasoned practitioners, it is rare to find disputes arising on complex construction contracts that do not include delay and disruption claims. Over recent decades, projects have grown in scale and cost, embracing new technologies, and are located in increasingly remote and challenging environments. Delays on construction projects have always been commonplace, but as the projects become more complex and financial consequences more onerous, disputing parties turn to programming experts (i.e. “delay experts”) as a matter of course to establish two of the fundamental tenements of a successful delay claim: cause and effect.
The ICC Report on Construction Industry Arbitrations notes protocols such as the Society of Construction Law Delay and Disruption Protocol 2nd Edition (SCL D&D2) and the Association for the Advancement of Cost Engineering International (AACE) Forensic Schedule Analysis Recommended Practice (RP) 29R-03 (29R-03) as providing helpful guidance to arbitrators dealing with delay claims; particularly in understanding when certain delay analysis methodologies will be appropriate and how they should be implemented.
Where complex delay and disruption claims are involved, the use of party-appointed delay experts is essential for parties to prove their claims and mount robust defenses. The SCL D&D2 Protocol and 29R-03 have already been individually identified by arbitration practitioners as tools to facilitate this process. The authors of this Chapter have explained how the two are not mutually exclusive; indeed, they are complimentary and, if properly utilized, will enable independent party-appointed experts to effectively discharge their obligations to an international construction arbitration tribunal.
Above all, experience has shown that flexibility and common sense prevail in prosecuting delay-related claims. Tribunals will expect experts to: act objectively, tailor their delay analysis to the circumstances, work professionally with the expert appointed for the counterparty to narrow down the elements in dispute, and support the tribunal in its findings. Proper application of both the SCL D&D2 and 29R-03 international publications will facilitate the experts to arrive at objective and sound findings that the tribunal can confidently rely on when making their award.
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