When analyzing construction claims in the Middle East, the choice of methodology is heavily influenced by the contract’s wording. Two globally recognized benchmarks are the Society of Construction Law (SCL) Delay and Disruption Protocol and the AACE International Recommended Practice Notes (namely RP 29R-03: Forensic Schedule Analysis). While both are respected, their applicability in the Middle East depends on the contractual framework, legal principles, and industry practices.
The Overriding Factor: Contractual Wording
The contract is the starting point for any claims analysis. In the Middle East, many construction contracts are based on FIDIC forms (e.g., Red Book or Silver Book), which are rooted in common law principles. These contracts typically require clear evidence of causation, entitlement, and quantification of delays, disruption or costs. If the contract explicitly references guidance documents the SCL Protocol or AACE 29R-03, that guidance document takes precedence. In the absence of such references, the choice of methodology depends on the legal context and regional practices.
Middle East Legal Systems: Civil Law, Not Common Law
Most Middle Eastern countries follow civil law or sharia law, not common law. Despite initially being developed for use with a common law contract, the SCL Protocol is often preferred in the region due to:
- Large-scale projects in the region often use FIDIC contracts, which are rooted in common law and include arbitration provisions. Arbitrators frequently refer to the SCL Protocol, especially in FIDIC-based disputes.
- The SCL Protocol is practical and adaptable, focusing on fairness and transparency. Its flexibility allows for methodologies like time impact analysis or as-planned vs. as-built, making it suitable for civil law systems that prioritize equity.
- The SCL Protocol provides detailed guidance on disruption, which is particularly useful in the Middle East, where loss of productivity claims are common but difficult to quantify.
AACE Recommended Practice No. 29R-03: A Technical Alternative
The AACE 29R-03 standard is highly technical, focusing on methodologies like observational, static, dynamic, and additive techniques. While respected, its use in the Middle East is limited because:
- It requires advanced knowledge of scheduling software and critical path method (CPM) analysis.
- It is less aligned with common law principles, which underpin many regional contracts.
- It is less frequently referenced in arbitration and legal proceedings.
However, AACE 29R-03 may be suitable for highly complex schedules or projects with strong US influence, depending on the contract and parties’ preferences.
Practical Considerations for the Middle East
When choosing a claims analysis methodology in the Middle East, consider:
- Contractual Requirements: Follow the guidance notes explicitly referenced in the contract. FIDIC-based contracts often align with the SCL Protocol.
- Legal and Procedural Context: The SCL Protocol is widely recognized in arbitration and litigation, even in civil law jurisdictions.
- Industry Practices: The SCL Protocol is broadly adopted, while AACE benchmarks are more niche and technical.
- Nature of the Claim: The SCL Protocol is practical for disruption claims, while AACE may suit highly technical delay analysis.
- Discuss with the Engineer / Employer: If the Contract is silent on methodology then an open and frank discussion with the client is recommended to avoid rework of claims.
Conclusion
Although most Middle Eastern countries are not common law jurisdictions, the SCL Delay and Disruption Protocol is the preferred benchmark for construction claims analysis in the region. Its alignment with FIDIC contracts, recognition in international arbitration, and practical approach make it widely applicable. The AACE 29R-03 benchmark, while technically robust, is less commonly used, except in specific industries like oil and gas.
Ultimately, the choice of methodology should always be guided by the contract’s wording. By adhering to contractual requirements and selecting the most appropriate benchmark, parties can ensure a robust and defensible approach to claims analysis in the Middle East, regardless of the legal system.
davidbrodiestedman@dispute-iq.com