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Newsletter

11 October 2021
In this newsletter you find:
  • Newsletter Chairman’s Note
  • New ESCL-Member: SCL Turkey
  • Webinar: ESCL 2020 and 2021 Prize Winners presentations
  • Initiative for drafting Delay and Disruption Protocol based on civil code (“DDP”)
  • ESCL Newsletter
  • LinkedIn
  • Events
Newsletter Chairman’s Note
Dear members and friends of ESCL,

Today we turn to you with two important news:

Firstly, we are pleased to welcome the Turkish Society for Construction Law as a new member of ESCL. Last Saturday, 2.10.2021, the General Assembly of ESCL unanimously decided to admit our Turkish friends into the circle of ESCL. We are very pleased that we could win new and interested colleagues for the common cause and we are looking forward to a professional and personal exchange. Welcome again at this point!

Secondly, we want to remind you of a webinar that will take place on October 21, 2021. We had already informed you about this in the last newsletter: The ESCL Paper Award winners will be introduced in this format and will each have the opportunity to briefly report on their scientific work. So this will be an exciting scientific exchange to which we cordially invite you all. As always, participation is free of charge. Please find more information below.

I wish you all healthy and beautiful autumn weeks. Stay in touch with us!

Best regards, 
Yours

Bastian Fuchs 
ESCL chair
New ESCL-Member: SCL Turkey
We are pleased to announce that the ESCL has recently grown. At the last General Assembly, the Society of Construction Law (SCL) Turkey was unanimously accepted into the ESCL. Here is a short introduction of our new member:

The establishment of SCL Turkey dates back to 2015 and started with an e-mail from Paul Battrick. The recipients of this e-mail were Yasemin Çetinel, İdil Bozoğlu, Ekrem Kaya and George Sanos.

The common ground of the recipients was to observe the SCL practice for the Turkish implementation, to work towards a specific and specialized “Construction Law” system and to work in this field. As this team of four, the team gathered in Istanbul and started to work on the constitution of SCL Turkey and its corporate identity. The core team had an utopic harmony and managed to complete the draft constitution, working principles, commissions and our vision in the mid 2016. The team contacted the pioneers of the sector and academicians and gained their support. We have reached the milestone of legal establishment with a very wide representation however the circumstances in Turkey during the mid-2015 changed all parameters, therefore SCL Turkey had to delay our legal establishment for a while.

Afterwards, SCL Turkey continued their efforts. We had new founder members added to our team; Başar Şahin, Orçun Çetinkaya, Sercan Kulaksızoğulları and Tuba Karakuş, and contacted the sector representatives in Turkey and abroad. SCL Turkey then re-designed the constitution and applied for the establishment at the end of 2019. SCL Turkey completed its establishment process in 2020, however could only have their first General Assembly by the end of March 2021 due to covid restrictions.

The launching event of Turkey SCL has been a widely-participated event with 301 attendees.  Committees are formed within the SCL Turkey and have already jump started their meetings. SCL Turkey is active with “SCL Talks” that are short videos with professionals in the field and is organizing online events, “SCL Meets” that will be on-site interviews with construction professionals and other actors and newsletters to set the tone for Turkish Construction Law.

Turkey is powerful in international construction as to have almost one fifth of the top contractors in the ENR List, an enormous technical know-how and a major workforce. SCL Turkey is aiming at elevating this force with specific regulations, experience with standard form contracts and to understand the requirements and procedures of the construction sector that is one of the leading sectors of Turkish economy.

Join the SCL Turkey on LinkedIn or visit their Website:
https://www.linkedin.com/company/society-of-construction-law-turkey/mycompany/ 
https://www.sclturkey.org
 
Webinar: ESCL 2020 and 2021 Prize Winners presentations
The ESCL Conference organized by the Bulgarian Society of Construction Law in Sofia is postponed for 17 June 2022. BSCL will host this pre-event webinar on 21 October 2021 at 5.00 PM CET for the 2020 and 2021 ESCL construction law thesis awards.

The administration is taken care of by the European Society of Construction Law (ESCL). 
The webinar is free of charge. 

To register please go to this Webpage and fill in the form ultimately before midday. After registering you will receive an e-mail with the Zoom link.
Initiative for drafting Delay and Disruption Protocol based on civil code (“DDP”)
Different methods of delay analyses and issues surrounding them probably present the most unsettled area in the construction industry and the law itself.  This also applies to issues related to concurrency having a great impact on the outcome of delay analyses, disregarding the chosen method. Overall, the differences might be so severe, that certainty of the law might be questioned.

Currently, only common law jurisdiction recognises the term “concurrent delay” and deals with different types of delay analyses to a certain extent. However, even in common law jurisdiction, the issue of concurrency remained a contentious issue and it is not “free from doubt” (North Midland Building Limited v. Cyden Homes Limited [2018] EWCA Civ 1744 p 6). Currently, there are only two widely recognised protocols that deal with the subject, both based on common law jurisdiction:
 
(i) SCL Delay and Disruption Protocol 2017 edition (UK)
(ii) AACE International Recommended Practice (USA)

However, most civil codes do not expressly address the concept of concurrent delays and there is limited jurisprudence on this specific topic which makes things even more complicated if the contracts are governed by civil code. Therefore, recommendations given in the above-mentioned protocols might not be appropriate and can be questioned under the contracts which are governed by civil code.

Therefore, the aim of this initiative is to form a committee that will gather a panel of professionals who will draft the Delay and Disruption Protocol (“DDP”) based on the main principles of the civil code. This Protocol would provide more precise guidelines and recommendations on how concurrency shall be dealt with. In the shortest term possible, DDP shall “fill the gaps” which obviously exist in civil law jurisprudence in respect of delay analysis and the concept of concurrent delays.

It is proposed that DDP tackles the following problematic areas and provide answers and solutions:  
(i) Discuss Prospective vs Retrospective approach in delay analysis
(ii) Provide for the clear-cut position on concurrency
(iii) Discuss the most preferable Delay Analysis
(iv) Discuss disruption, float and pacing
(v) Provide more clarity on how records shall be kept as to the delay and disruption
(vi) Provide a lot of practical examples or fictional case studies

Therefore, I welcome all construction professionals (construction lawyers, delay experts, dispute practitioners and alike) from civil law jurisdictions to join me in this adventure and to attempt to resolve this puzzle to the maximum possible extent in the context of the civil code. This invitation especially applies to national construction law societies which may also contribute by endorsing the protocol within their organisations. This would give the protocol additional weight and recognition within the dispute resolution arena.

Looking forward to hearing from you soon to discuss how this initiative can me materialized, share different views and experiences on the matter. 

My contact details are:
Email: dusanarbanovski@gmail.com
Mob: +381691223433 

Best Regards,
Dušan Arbanovski 
M.Sc.Eng | FCIArb | ACES Adjudicator | MRICS 
LL.M Construction Law and Arbitration
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Events

Events organised by the National Societies of Construction Law can be published on the ESCL Website or mentioned in the ESCL Newsletter. Send your events, with short description in English and a link to the event on your website to info@ibr.nl.

If you have any questions please contact:
Dr. E.M. (Evelien) Bruggeman (Secretary of the ESCL)
E. (Ellen) Boomer-van der Ploeg
Dr. M. (Michael) Müller, Bakk. (Member ESCL Council)
Tel.: +31 - (0)70 3245544
E-mail: info@ibr.nl

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