International Construction Law Review
EXTENSIONS OF TIME—AN ARBITRATOR’S PERSPECTIVE1
KEITH PICKAVANCE2
LLB(Hons), Dip Arch, Dip IC Arb, RIBA, FAE
A while ago I was sitting as an arbitrator in a preliminary meeting and, having discussed the respective parties’ cases and decided how the matter was to be dealt with, we passed to “any other business”. I asked whether either of the parties had any other matters to discuss. The claimant said that he had heard that I had some rather firm ideas about how an extension of time should be proved and wondered if, before they reduced their respective claims to writing, I would share my views with the parties. I responded by asking whether I had missed something because, as I had understood it, liquidated damages had not been deducted in this case. If there had been no liquidated damages deducted by the respondent, for what, I asked, did the claimant require an extension of time? The question was met by a silence. The parties looked at each other and then asked if I would grant them some privacy for a few minutes. They left the room and about five minutes later returned to tell me that they had settled the case. In the absence of any claim for an extension of time, compensation for the changes in the works had been agreed. I will return to this later.
In my experience, that exchange typifies one of the most common difficulties an arbitrator has to face in this field. It is an unfortunate fact of life that, in the construction industry, many disputes emanate from the fact that words tend not to be used with great precision. Take, for example, the simple word “delay”. The word tends to be used, rather loosely, to mean just about anything the parties want it to mean to produce some sort of claim or defence to a claim. The difficulty is not reduced by the phraseology used in the standard forms of contract. In the UK, for example, there is a well-known engineering form3
in which the single word “delay” can be interpreted to mean two completely different things in sub-clauses of the same clause. This form requires that the contractor must notify the engineer within 28 days of the date on which the delay has arisen.4
Now “the delay [that] has arisen”
1 A luncheon talk given to the Singapore Institute of Arbitrators, on 19 February 2003, at the Goodwood Park Hotel, Singapore.
2 Keith Pickavance, LLB (Hons), Dip Arch, Dip IC Arb, RIBA, FAE, is chairman of Pickavance Consulting Ltd (London and Hong Kong) http://www.pickavance.net. He is the author of Delay and Disruption in Construction Contracts
(LLP, 2000) and specialises in the resolution of disputes involving delay in construction and civil engineering contracts as expert, adjudicator and arbitrator.
3 ICE Conditions of Contract, Measurement version, 7th Edition.
4 Cl. 44(1).
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