One of the objectives of the session was to see where legal systems differ. Without anticipating the contents of the July issue too much, it is worth recording that, as regards one prominent legal system, approaches may differ in theory but in practice they coincide. This is not surprising as the treatment of delay is essentially a factual and contractual matter. There are no “principles of law” governing the assessment of delay. Extensions of time have to be fair (see, for example, clauses 3.5, 8.4 and 20.1 of the FIDIC Red Book). The position has to be examined against the contract provisions relating to programming and the programmes which were used. (It is still amazing that in some arbitral and legal proceedings experts express opinions about delay without having first read such documents.)

Other objectives of the session were ambitious. They were to examine, in depth, and critically, the successful assessment in practice of the effect of events that delay completion of a contract (and which may require measures to make up lost time). The intention was not to repeat standard analyses of delay but to see what happened when such analyses were considered by arbitral tribunals and courts. That objective was not wholly achieved, largely because it was not possible to obtain decisions of arbitral tribunals on the assessment of delay which could be used for the purposes of discussion. In turn, this raises the question: How many claims for delay, based on such analyses, are treated properly by arbitral tribunals? Based on decisions by specialist courts, the answer may be: not many. The persuasive criticism by Mr Jeremy Winter of the decision (subject to a pending appeal) in the Scottish case of City Inn v. Shepherd Construction [2007] CSOH 190 in his paper for the Society of Construction Law (No 153) shows, in part, the need for such analyses. Much time and trouble is spent by parties on engaging experts to make meticulous analyses of delay. If, in the end, the tribunal does not make use of them, then further questions arise as to why, and whether it is really necessary to carry them out. Sadly, courts and arbitral tribunals are not always familiar with the techniques of delay analysis and struggle to apply them. It is also all too common for expert analyses to be at variance with the facts. These are not reasons to abandon them since they do promote settlements, particularly where the experts are

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