Building Magazine Publishes Article by Hamish Lal on New Protocol from Society of Construction Law

Building magazine has published “But is it any good?” written by Hamish Lal, international arbitration partner at Akin Gump—an article that examines the Society of Construction Law’s recently released second edition of the Delay and Disruption Protocol.

Lal describes the protocol as “a very comprehensive document that provides 22 core principles telling readers how various issues that typically arise in the context of delay and disruption ought to treated, managed and quantified.” These issues, he writes, include “programs, record keeping, delay analysis, float, concurrency, compensation for prolongation, and the use of tender allowances in the assessment of prolongation.” But, Lal points out, there are three fundamental changes in this second edition that are particularly noteworthy.

The first, Lal writes, is “a clear shift in direction relating to so-called time impact analysis (TIA), which is often criticized for producing synthetic or artificial prospective entitlements so that employers refuse to award an extension of time (and contractors then have no option but to raise a dispute).” Second, Lal notes, is that “the new protocol is happy to have prospective extensions of time but insists that the loss/expense associated with them ought to be based on actual loss.” Finally, Lal says the new protocol includes an important warning that “a common sense perspective ought to be applied to any analysis.”

Lal concludes that, while the new protocol is a good document, it does not go far enough to “tell adjudicators, arbitrators and judges how to evaluate delay when the programs are out of date or when the prospective delay analysis machinery has broken down.” He offers a common sense approach to this scenario, in which one would take a look at actual delay and loss and apply a retrospective “effect and cause” approach.