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French version of protocol 'will help with international construction disputes'

The Society for Construction Law (SCL) has launched its French translation of the SCL Delay and Disruption Protocol in the first step in the process of producing a version harmonised with French law.24 Sep 2018

The SCL protocol was originally launched in 2002 as a guide to courts to determine delay and disruption claims. Although it was developed with a focus on the UK construction market and English common law, it has proven helpful in disputes around the world even where civil law applies.

Paris-based construction law expert Frédéric Gillion of Pinsent Masons, the law firm behind Out-Law.com, said it was not uncommon for the SCL protocol to be used in international arbitrations, even when the applicable law was from a civil law country.

Often the SCL protocol is treated by delay experts and tribunal as a useful reference document in the absence of an established legal position in most civil law jurisdictions on issues such as concurrency, mitigation of delay, acceleration, global claims, and the valuation of delay and disruption claims,” Gillion said.

“The launch of the French translation will encourage further use of the SCL protocol, not only in France, but across the French-speaking world, and will help judges fully embrace those delay and disruption issues that are at the heart of most construction disputes,” Gillion said.

The French translation of the protocol is not the first time the document has been exported to other jurisdictions. It has obtained judicial recognition in countries such as Australia and Hong Kong, and the local SCL chapter in Malaysia launched a Malaysian supplement to the protocol to harmonise it with local laws and encourage further use.

While the UK court system has a specialised court for construction disputes, the Technology and Construction Court, in France such cases rarely have specialised judges. Delay and disruption issues are typically outsourced to court-appointed experts.

Gillion said the translation of the SCL protocol was a way to export London construction disputes expertise to France and beyond.

“The translation is, however, only the first step. There are already plans in the making to produce a harmonised version SCL protocol with French law,” Gillion said. “There is hope amongst practitioners that the translated SCL protocol will encourage better contract management practices to facilitate delay related claims.”

The protocol provides guidance on issues of delay and disruption. It does not have any direct legal effect unless the parties choose to be bound by it contractually. 

It is used as a guide to common approaches and methods relating to delay and disruption and in this sense, reference to the SCL protocol can lend legitimacy to claims and expert analysis. 

The SCL protocol is also commonly used in international arbitrations as a reference document where the applicable law may not have an established legal position on delay and disruption issues.

The English version of the SCL protocol was updated last year, taking into account developments in the law, technology and construction industry practice since the first edition was published in 2002. The revisions also reflected industry feedback, the increase in both number and scale of large projects over the years and "anecdotal evidence" that it was being used for international, as well as UK, projects.