Image

Publications

ArbitralWomen members regularly publish articles in highly-regarded legal and ADR journals

Losing Entitlement to Claim and Resort to Dispute Resolution in Construction: Time Bar Provisions and the Turkish Approach

Characterized as a topic strongly connected to the dispute resolution arena, time bar provisions appear at the top of the list of priorities with regards to disputes in the construction field. Among many others, a recent decision rendered by the High Court of Justice, Queen’s Bench Division (Obrascon Huarte Lain SA v Her Majesty’s Attorney General for Gibraltar [2014] EWHC 1028 (TCC)) confirmed such position while demonstrating the importance of the structure of procedural provisions and the result of non-compliance thereof in construction contracts. Specifically, clauses related to notice of claim create contractual obligations with regard to the procedure that must be followed by the contractor to be entitled to exercise a right to claim under the contract. The interpretation of such clauses will differ as to whether or not the nature of these provisions constitutes a condition precedent. Vis-à-vis the major approaches on the nature of time-bar provisions, the Turkish courts’ approach is consistent and established. It follows a strict view on the word-for-word compliance with the time bar provisions without leaving room for any prevention principle to become applicable. Consequently, this approach makes Turkey a jurisdiction where contractors must carefully consider compliance with notice clauses so as not to lose any right to claim or resort to dispute resolution.