i-law

International Construction Law Review

THE EFFECT OF CONTRACT CLAUSES ON CLAIMS FOR DELAY AND DISRUPTION*

JOHN DORTER

BA, LLB, CPA, FCI Arb, FIAMA Partner, Allens Arthur Robinson, Sydney

“The combination of causes of phenomena is beyond the grasp of the human intellect. But the impulse to seek causes is innate in the soul of man. And the human intellect, with no inkling of the immense variety and complexity of circumstances conditioning a phenomenon, any one of which may be separately conceived of as the cause of it, snatches at the first and most easily understood approximation, and says here is the cause.”1

1. SYNOPSIS

Two powerful currents run through the Sargasso Sea of time-based money claims, viz:
  • (a) code v. conduct; and
  • (b) limitation v. exclusion.
A tension emerges. Clarity and certainty call for a contractual code. Unfortunately the flexibility and frailties of human nature are such that conduct is in vogue—at least in some countries.
Adversarial jurisprudence and cultures like the plea in bar. However, equity’s softening of black letter law is such that many courts do not like Draconian and total exclusions. Per contra , freedom of contract should enable the parties (and especially commercial captains of the construction industry) to mould their risk allocation according to informed consent limitations of liability.

2. RATIONALE

It may be refreshing to remind ourselves that the quintessence is probably compensation for breach of contract.
Rarely are captains of commerce in the construction industry rash enough to make time of the essence in their construction contracts. Nonetheless, it


Pt 3]
The Effect of Contract Clauses on Claims for Delay and Disruption

313

The rest of this document is only available to i-law.com online subscribers.

If you are already a subscriber, click Log In button.

Copyright © 2024 Maritime Insights & Intelligence Limited. Maritime Insights & Intelligence Limited is registered in England and Wales with company number 13831625 and address 5th Floor, 10 St Bride Street, London, EC4A 4AD, United Kingdom. Lloyd's List Intelligence is a trading name of Maritime Insights & Intelligence Limited.

Lloyd's is the registered trademark of the Society Incorporated by the Lloyd's Act 1871 by the name of Lloyd's.