On 5 November 2026, Bence Rajkai spoke at the 10th International Conference “Perspectives of Construction Law” of the Society of Construction Law Romania in Bucharest, on the panel on quantifying delay and disruption.
The conference was hosted by the Society of Construction Law Romania together with the Faculty of Law of the Bucharest University of Economic Studies and the Chartered Institute of Arbitrators (CIArb) European Branch, with the support of the European Society of Construction Law.
The panel “Quantifying Delay and Disruption – International Perspectives on Current and Future Protocols” was moderated by Andrei Soltan (HKA), with Cătălin Birtea (Cabrocon Consult), Dr. Anamaria Popescu (Resolution Economics) and Michael Tonkin (HKA, Deputy President of CIArb) alongside Bence Rajkai. Bence Rajkai addressed how the common law-rooted SCL Delay and Disruption Protocol can be applied in a civil law jurisdiction, and the practical, evidentiary and legal-ground dilemmas of bringing delay claims before Hungarian courts.
The text of the presentation follows below.
From the SCL Protocol[1] to the Hungarian Courtroom
Making Delay and Disruption Claims Work in a Civil Law Jurisdiction
Facts and law
I am Bence Rajkai, a Hungarian lawyer and partner at CERHA HEMPEL in Budapest. I specialise in construction law and dispute resolution.
As the only lawyer on the panel, I took a slightly different approach from my fellow expert panellists. My presentation was about how we can transform facts and expert opinions into successful claims. The specific legal challenges differ from one jurisdiction to another.
Mathematics and engineering are the same everywhere. Law is not.
And here is my first provocative statement: it is not only the law that is subjective, but also the facts themselves. How we identify the facts depends on the legal culture in which we present them.
As one Hungarian legal theorist put it, facts do not walk into the courtroom on their own. So the issue is how we can align the facts with the law.
Common law and civil law
Common law and civil law systems deal with this in different ways. To put it simply, common law shapes the law around the facts, while civil law adjusts the facts to the law.
All this may sound theoretical, but these differences in legal culture have practical significance. I believe the SCL Protocol methods can be applied in both common law and civil law jurisdictions, but their application must take the underlying legal culture into account.
Let me illustrate this with three examples.
Exemption from liability for delay
In a civil law jurisdiction such as Hungary, statutory rules may exempt a contractor from liability for delay, even when a force majeure clause is absent from the contract or does not apply.
In a common law jurisdiction, if the contract has no force majeure clause, there may be no similar statutory fallback, and thus no excuse.
This difference matters both when drafting a contract and when bringing a claim. Under common law, contractors should carefully review the scope of the force majeure clause: if an event falls outside it, there may be no statutory safety net. Under civil law, employers should consider the opposite risk. Despite a missed extension of time (EOT) claim or notice, the contractor may still escape liability under the general statutory rules, unless the contract expressly provides otherwise.
In my view, both the SCL Protocol and FIDIC can work in common law and civil law jurisdictions, but we must also understand the legal system behind the contract and draft it accordingly.
Time and money
The same principle applies under the SCL Protocol, FIDIC and Hungarian law alike: an extension of time does not automatically give the contractor the right to compensation. Time and money must be analysed separately.
Prolongation costs and the legal basis for recovery
The SCL Protocol explains that the objective of prolongation costs is to put the contractor in the same financial position in which it would have been if the relevant Employer Risk Event had not occurred.
Whether an event qualifies as an Employer Risk Event must be determined by analysing the contract and the applicable law. FIDIC, in effect, distinguishes between Contractor’s Risk Events, neutral events and Employer’s Risk Events.
The starting point under Hungarian statutory law is somewhat different: the contractor bears practically all the risks associated with delivering the agreed result on time and at the agreed price. The possibility of recovering costs beyond a lump-sum price is therefore not based on the scope of the contractor’s risk. Instead, it depends on distinct legal grounds, which may enable the contractor to seek relief and compensation.
However, each of these legal grounds has its own requirements, case law and burden of proof. So the contractor’s success may depend on two things: luck, and a creative lawyer who can squeeze the claim into the right legal box.
Three legal grounds
The contractor may refer to:
- Damages: when the employer breached the contract, there is a causal link, and the loss is proven.
- Extra work: when the employer instructed or agreed a change to the technical scope, which is in practice a variation of the contract.
- Additional work: when the original scope did not change, but due to unforeseeable circumstances additional works must be carried out to complete the project.
These three legal grounds carry different burdens of proof. But what if the event does not fit into any of these categories?
Neutral events
Take a neutral event, for example a force majeure event, which makes the original work harder, longer and therefore more expensive. The complications are real. The costs are real. The event was not foreseeable.
But with no employer breach, no variation and no additional work, the case may not fit into any legal box on the basis of which the claim could succeed.
These issues can, and should, be addressed in the contract itself. But again, we must take into account the logic and principles of the underlying legal system.
Concurrent delay
My third example is concurrent delay. The Protocol helps us identify concurrency, and it tells us that true concurrent delay is the occurrence of two or more delay events at the same time, one being an Employer Risk Event and the other a Contractor Risk Event.
Furthermore, the Protocol says that if true concurrent delay is established, the contractor is entitled to an EOT for the Employer Delay, and this EOT cannot be reduced because of the Contractor Delay. As the Protocol itself acknowledges, its position on concurrent delay is influenced by the “prevention principle” of English law.
The problem, once again, is that the logic of excusing delay cannot be separated from the liability regime of the legal system, and liability regimes are among the most culture-specific parts of any legal system.
In civil law systems this logic does not necessarily work, because they concentrate on excuse. To be excused, the contractor must usually prove that the delay was caused solely by a circumstance beyond its control. If it cannot prove that, the principles of shared causation and contributory fault may apply instead, but full relief is not available.
So the same concurrent delay that leads to a full EOT under the Protocol may lead only to partial relief in a civil law court.
Take-aways
I closed with four messages:
- Engineering and expert methods travel freely around the world.
- Legal consequences do not always travel with them: the same facts may lead to different results in different jurisdictions.
- The Protocol can support the facts, but it cannot by itself create a legitimate legal ground.
- We must always be conscious of the jurisdiction in which we have to prove our claim, and consider this when we draft and build the claim.
We must also be clear about the legal ground we rely on, because it determines what we have to prove.
Law and evidence, lawyers and experts must go hand in hand, as we illustrated together on the panel.
[1]Society of Construction Law: Delay and Disruption Protocol, 2nd edition, 2017.
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Author: Rajkai Bence
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