International Construction Law Review
DISRUPTION CLAIMS – A TWO-STEP CAUSATION REQUIREMENT
MIKAL BRØNDMO*
Partner, Advokatfirmaet Haavind AS
ABSTRACT
This article discusses the causation requirement for disruption claims under English, Swedish and Norwegian law. There is already a two-step causation requirement for disruption claims in Norwegian law, as confirmed by the Norwegian Supreme Court in a judgment in 2019. It is argued here that causation should also be proven in two steps in disruption claims under English and Swedish law. Although the article’s focus is the causation requirement, it also touches on the other basic requirements that need to be fulfilled in order for disruption claims to be successful.
1. INTRODUCTION
Disruption claims are a common form of dispute in construction projects. Such claims can be difficult for the contractor to substantiate and are consequently problematic for the employer to accept.1
Disruption claims are well-known across jurisdictions and can be seen in all types of construction contracts, including contracts for the construction of infrastructure, buildings, oil and gas platforms, ships and wind farms. Analysing the way in which different jurisdictions handle disruption claims
* Mikal Brøndmo, Partner at Advokatfirmaet Haavind AS in Norway, m.brondmo@haavind.no, specialises in arbitration and litigation, with a focus on complex and international disputes. He also acts as an arbitrator in international and domestic arbitrations. In addition, he is a lecturer in the Faculty of Law at the University of Oslo. He would like to thank his colleagues at Haavind for invaluable discussions over the years, Jan Einar Barbo at BAHR for his input to a related article under Norwegian law, and Haavind’s librarian Kristin Hagelid for all her assistance.
1 The way disruption claims are presented occasionally appears to be influenced by different authors’ backgrounds and experiences. A perceptible divide can be sensed between authors that mainly represent contractors and those that mainly represent employers. While this may be inevitable, transparency as to the author’s experiences can be useful when considering the arguments he or she puts forward. This author’s experience includes both assisting offshore contractors in making claims for disruption against employers and defending contractors against disruption claims from sub-contractors. Although the author chiefly represents major offshore contractors within the oil and gas and offshore wind industries, the author also has wide experience representing employers and contractors (both main contractors and sub-contractors) in infrastructure, building, shipbuilding and onshore energy construction.
Pt 1] Disruption claims – a two-step causation requirement
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