Construction Law/SCL



I am the CA of an Oil & Gas project. Contract is a bespoke one which states in one of its Contract Conditions Clauses that governing law is the laws of England & Wales. Upon reviewing the issue of Contractor's delay, EOT and concurrent delays I have accordingly referred to the "SCL delay and disruption protocol" .. is it OK ?
The Contractor is raising objection and asking if this protocol is Governmental law of England (or State law) or this SCL is just a private sector society?

May you  help me with supporting references please.

Thank you

ANSWER: Dear khaled,

The SCL Protocol is not the law of England.  It is an attempt to formalise the procedures needed to reach agreement on an EoT, so that all parties have a basis for agreement.  There are two similar, but more complicated, documents produced by American professional bodies.  Awards for an EoT have to be based on critical paths and delays to items on the critical path, otherwise there is no entitlement to an EoT.  I would ask the Contractor what procedures he proposes to use, if not the SCL Protocol. If you cannot reach agreement, then the Contractor can always go for arbitration and wait ten years and spend a fortune before getting an award.  The case of Multiplex v. Cleveland Bridge is relevant, where the award did not cover the legal fees.  

An interesting thought.  If the laws of England apply, does that mean that you will have compulsory adjudication under the Local Democracy, Economic Development and Construction Act 2009? There are lots of web sites on the subject including this one.

If the dispute is unresolved, the Contractor will have to produce a critical path analysis for any future proceeding, so he might as well do it now, in the knowledge that some judges have been very critical about some critical path analyses.  

---------- FOLLOW-UP ----------

QUESTION: Dear Mr. Peter;
Thanks but I am still confused. Our project is in Iraq where, as I told you, clearly stated in the Contract conditions that governing law is the laws of England & Wales. if SCL protocol is not the law of England so what's the law of England which handles the construction delays ? and where can I get it?
I don't understand what is this " Steven C  Evans" , is it private or governmental?
May you please explain further .. I am really very sorry but it seems that there is something that I don't know in this regard.

Thank you  a lot.

Dear Khaled,

As far as I know, there is no law dealing with delays.  There are laws dealing with disputes and laws dealing with breach of contract, but there are no laws dealing specifically with delays.  There is case law on the interpretation of approaches to delays.  If you look at the web site you will find several articles on the subject of delays under English law.  This site is not a government site, but a site produced by an expert in construction law to collate and explain various aspects of English law.  

The Local Democracy, Economic Development and Construction Act 2009 is the act that deals with adjudication of disputes under construction law.  Steven C Evans is one of the many sites which explains the procedures under the Act.  

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Peter M. Elliott


First response to queries regarding extensions of time, variations orders, site instructions and payment using FIDIC and other forms of Conditions of Contract, based on English Law, and derivatives only. Anyone who needs advice about EoT should download and study the SCL Delay & Disruption Protocol before submitting a question.


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