The enforceability of time bar clauses in construction contracts : a comparative analysis between the Egyptian civil code and the English and Welsh common law jurisdictions
Construction claims are a fact of life on all projects across the world. In an attempt to safeguard themselves against the risk of claims, employers utilise time bar clauses in construction contracts to waive the contractor’s entitlement to any additional costs or time if a notice of claim is not served by the contractor within a specific period of time. The reality of whether such a time bar is enforceable depends on the law governing the contract. Therefore, it is incumbent upon professionals contracting across different regions of the world and using standard form construction contracts that were prepared under a different jurisdictional setting than their own to be aware and acquainted with the extent to which these time bar clauses are enforceable under the law governing the contract in question. This research provides an in-depth insight regarding the enforceability of time bar clauses in English law and the Civil Code jurisdiction of Egypt, using the time bar in sub-clause 20.1 of the FIDIC 1999 Red Book as the basis for comparison. The results of this research do not solely apply to the time bar clause in the FIDIC 1999 Red Book, but also to any time bar clause in a bespoke form of contract that acts as a condition precedent. The need for this research and its uniqueness stem from the fact that it aims to fill a critical gap in the construction law literature as, while there is an abundance of literature on the enforceability of time bar clauses under English law, there is scarcely any sizeable research dedicated to the same topic under the Egyptian Civil Code. The research utilises a comparative law methodology to compare the enforceability of the FIDIC time bar across the two jurisdictions utilising three key concepts as the basis for comparison, namely statutory limitation, good faith and the prevention principle. As part of this methodology, the research takes a step beyond the subject of the research and delves into the historical origin of the similarities and differences highlighted. In doing so, the research concludes with two key premises for the causes of the similarities and differences highlighted in the research, namely the principle of freedom of contract under English law and the effect of the French Civil Code on the formation of the Egyptian Civil Code. This, in turn, results in historical elaborations of both premises.
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