A Comparative Perspective on Risk Allocation and Legal Enforceability
In the complex world of international construction, time truly is money. Few issues create more tension between employers and contractors than project delays. When both parties contribute to delay — a situation known as concurrent delay — determining responsibility becomes both a contractual and legal challenge.
With the increasing use of clauses in FIDIC-based contracts — which exclude extensions of time (EOT) for concurrency, subcontractor breach, and failures to mitigate — the question of enforceability across jurisdictions has become critical for both employers and contractors.
This article explores how concurrent delay clauses are treated under English law, UAE law, and Saudi Arabian law, while also touching on developments in Romania and Türkiye — offering a comparative perspective on risk allocation, fairness, and enforceability.
Understanding Concurrent Delay in Construction Contracts
A concurrent delay occurs when two or more delay events — one attributable to the contractor and another to the employer — overlap in time and both affect the project’s completion date.
Typical examples include:
- A late design change by the employer while the contractor is already behind schedule;
- A supply chain disruption coinciding with the employer’s delayed payment or variation approval.
To address such situations, contracts may include concurrent delay clauses, defining how time and cost entitlements are treated when responsibility is shared.
However, how enforceable these clauses are depends heavily on the governing law and the forum interpreting them.
The Legal Landscape: How Jurisdictions Differ
England: Full Enforceability through Clear Drafting
English law strongly protects freedom of contract. Courts generally uphold express wording that allocates risk, even if it appears harsh.
The seminal case Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd (1999) established that a contractor may obtain an EOT for employer-caused delay but not additional costs.
More recently, the Court of Appeal in North Midland Building Ltd v Cyden Homes Ltd [2018] EWCA Civ 1744 confirmed that parties may expressly exclude any EOT entitlement for concurrent delay — even overriding the prevention principle. Clauses imposing best endeavours obligations or excluding EOT for a contractor’s own breach are also fully enforceable, provided they are clear
United Arab Emirates: Contractual Freedom Limited by Good Faith and Causation
The UAE Civil Code (Federal Law No. 5 of 1985), influenced by both civil law and Sharia principles, imposes mandatory standards of good faith and causation that override inconsistent contractual terms.
Key principles:
- Article 246(1): Contracts must be performed in good faith.
- Article 287: A party is not liable if the loss was caused by an external factor, including the other party’s act.
- Article 390(2): Courts may adjust liquidated damages to reflect actual loss.
Implications for concurrent delay clauses:
- Clauses attempting to exclude a contractor’s right to time relief where the employer contributed to the delay are unlikely to be fully enforceable.
- UAE courts and tribunals commonly apply a civil law version of the prevention principle, preventing an employer from benefiting from its own act of delay to impose liquidated damages (Dubai Court of Cassation, Case No. 282/2008).
- Conversely, clauses imposing duties to mitigate delay or to use best endeavours are enforceable, as they align with good faith.
Saudi Arabia (KSA): Sharia Fairness Limits Contractual Exclusions
Saudi Arabia’s Civil Transactions Law (Royal Decree No. M/191, 2023) codifies key Sharia principles that govern contracts and liability. These include al-ghurm bil-ghunm (“liability follows gain”) and la darar wa la dirar (“no harm, no harassment”).
Key principles:
- No liability without causation: A party cannot be held liable unless its act directly caused the loss.
- Good faith and fairness: Mandatory under both Sharia and statutory law (husn al-niyyah, muru’ah).
- Article 138: Any term contrary to public order or Sharia is void.
- Article 425: A creditor cannot recover damages for harm it caused itself.
Implications for concurrent delay clauses:
- Provisions excluding time relief when both parties share responsibility for delay are vulnerable, as they can amount to unjust enrichment or unfair advantage.
- Requirements that contractors act reasonably or mitigate delay are consistent with Sharia and therefore enforceable.
- Clauses excluding relief for a contractor’s own breach or negligence are acceptable, as they align with causation and fault principles.
Romania: Civil Law Moderation and Equitable Responsibility
Under Romania’s Civil Code, courts emphasize fairness and proportionality. Concurrent delay clauses may be accepted but are subject to judicial moderation if one-sided or contrary to equity.
Key takeaway:
Enforceable only when consistent with proportional liability and public policy.
Türkiye: Emerging Awareness, Limited Precedent
Türkiye has no established precedent directly addressing concurrent delay. However, under the Turkish Code of Obligations (Articles 112–116), liability depends on causation, fairness, and good faith (dürüstlük kuralı).
Recent FIDIC-based public contracts increasingly define concurrency and mitigation duties explicitly, reflecting international influence.
Key takeaway:
Enforceability hinges on clear drafting and evidence of causation — particularly where the employer’s conduct contributed to delay.
Comparative Summary: Enforceability of Sub-Clause 8.4.2 Claims & Documentation
| Clause | English Law | UAE Law | KSA Law |
| No EOT for contractor breach | ✔ Enforceable | ✔ Enforceable | ✔ Enforceable |
| No EOT for concurrency | ✔ Enforceable (North Midland) | ⚠ Legally uncertain – may be struck down under causation & good faith | ⚠ Legally uncertain – vulnerable under Sharia fairness & causation |
| Duty to mitigate delay | ✔ Enforceable | ✔ Enforceable | ✔ Enforceable |
Arbitration vs Local Courts: A Practical Divide
In arbitration (e.g., ICC, DIAC, SCCA), tribunals often apply the contract as written, particularly where foreign law (e.g., English law) governs the agreement.
However, in local courts — especially in Dubai, Abu Dhabi, Riyadh, or Jeddah — judges are more likely to override exclusions that conflict with causation or good-faith doctrines, ensuring that no party benefits from its own act of delay.
Best Practices for Project Managers and Legal Teams
- Draft with Legal Precision
Clearly define concurrent delay and the consequences for both time and cost, referencing the governing law’s position. - Tailor Clauses to Jurisdiction
Avoid using standard concurrency exclusions in UAE or KSA contracts without adaptation to local good-faith and fairness principles. - Maintain Robust Records
Use detailed progress reports and time impact analyses (TIA) to evidence causation and sequence of delay events. - Align Legal and Technical Expertise
Engage both contract lawyers and scheduling specialists early to ensure that concurrency clauses are both operationally clear and legally defensible.
Conclusion: Managing Delay Risk Across Legal Cultures
Concurrent delay is not just a scheduling issue — it is a question of legal philosophy.
While English law favors contractual certainty and enforces well-drafted exclusions, UAE and Saudi law prioritize fairness, causation, and good faith, limiting strict risk transfers.
For international projects, success depends on balancing clarity with compliance — drafting clauses that allocate risk effectively without breaching mandatory legal norms.
By integrating jurisdiction-specific insights into contract strategy, organizations can minimize disputes, protect financial outcomes, and maintain trust across borders.
Managing delay is about foresight, not reaction — and clarity today prevents conflict tomorrow.
References
Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd [1999] 70 Con LR 32 — https://jusmundi.com/fr/document/decision/en-henry-boot-construction-uk-ltd-v-malmaison-hotel-manchester-limited-judgment-of-the-court-of-appeal-of-england-and-wales-2000-ewca-civ-175-friday-28th-july-2000
FIDIC Red Book 2017, Sub-Clause 8.4 and 20.2 — https://fidic.org/bookshop
UAE Civil Code, Articles 246 and 290 — https://elaws.moj.gov.ae/UAE-MOJ_LC-En?LawId=1985-Federal%20Law%20No.%20(5)-English
Saudi Building Code and Ministry of Justice Guidelines on Contractual Liability (2022) — https://laws.moj.gov.sa/
Turkish Code of Obligations, Articles 112–116 — https://mevzuat.gov.tr/mevzuat?MevzuatNo=6098&MevzuatTur=1&MevzuatTertip=5
Romanian Civil Code, Articles 1350–1360 — https://legislatie.just.ro/Public/DetaliiDocument/120549
Society of Construction Law Delay and Disruption Protocol (2nd Edition, 2017) — https://www.scl.org.uk/sites/default/files/documents/SCL_Delay_Protocol_2nd_Edition_Final.pdf
