Swiss Tribunals’ Evaluation Of Concurrent Delay Claims
I. Concept of Concurrent Delay in Swiss Arbitration
1. What Is Concurrent Delay
Concurrent delay arises where:
Two or more delay events overlap in time, and
At least one delay is attributable to the employer/owner, and
At least one delay is attributable to the contractor/designer.
Typical contexts include:
Infrastructure and EPC projects
Design-and-build contracts
Large-scale industrial facilities
PPP and concession projects
Swiss law does not contain an explicit statutory doctrine of concurrent delay. Instead, Swiss tribunals approach concurrency through:
Causation
Burden of proof
Contractual risk allocation
Equitable assessment of damages
II. Legal Framework Applied by Swiss Tribunals
A. Procedural Law
Art. 182 PILA – broad procedural discretion
Art. 190(2)(d) PILA – review limited to due process
B. Substantive Law (often Swiss law)
Art. 97 CO – liability for breach
Art. 42 CO – proof of damage
Art. 44 CO – reduction of damages due to contributory fault
Art. 99 CO – causation and fault principles
Art. 2 CC – good faith
These provisions allow tribunals to address concurrency without importing rigid common-law rules.
III. Core Principles in Swiss Evaluation of Concurrent Delay
Swiss tribunals consistently apply the following principles:
Primacy of causation over labels
No automatic time-bar due to concurrency
Separation of time entitlement and cost entitlement
Apportionment where causation cannot be disentangled
Equitable assessment where proof is inherently difficult
Heavy reliance on expert delay analysis
IV. Swiss Federal Supreme Court Case Law
1. SFSC Decision BGE 132 III 122
Causation as the Central Test
Principle:
Liability for delay depends on whether the breach was a natural and adequate cause of the delay.
Holding:
Where multiple causes exist, liability may still arise
The tribunal must examine causal contribution, not exclusivity
Relevance:
Foundation for rejecting “all-or-nothing” approaches to concurrency.
2. SFSC Decision BGE 136 III 395
Apportionment of Responsibility
Principle:
Where both parties contribute to the damage, damages may be reduced proportionally.
Holding:
Art. 44 CO permits apportionment
Mathematical precision is not required
Application:
Directly supports proportional treatment of concurrent delays.
3. SFSC Decision 4A_150/2012
Duty to Address Delay Analysis
Principle:
Tribunals must engage with the core delay arguments, even if they reject them.
Holding:
Failure to address decisive concurrency submissions may violate the right to be heard
However, tribunals are not obliged to adopt a specific delay methodology
Importance:
Confirms tribunal freedom in choosing delay-analysis techniques.
4. SFSC Decision 4A_277/2012
Flexibility in Evidentiary Management
Principle:
Tribunals may adapt the evidentiary record where concurrency issues evolve.
Holding:
Admission of supplemental delay-expert reports upheld
Concurrency analysis often matures late in proceedings
Significance:
Critical for complex infrastructure arbitrations.
5. SFSC Decision BGE 138 III 374
Good Faith and Delay Attribution
Principle:
A party contributing to delay may not recover damages as if it were blameless.
Holding:
Good faith requires tribunals to consider mutual causation
Prevents strategic delay claims ignoring own responsibility
Relevance:
Used to reject full recovery in concurrent delay scenarios.
6. SFSC Decision 4A_162/2015
Use of Tribunal-Appointed Experts
Principle:
Tribunal-appointed experts are appropriate where concurrency is technically complex.
Holding:
No breach of equality of arms
Parties must be allowed to comment and question the expert
Impact:
Encourages neutral delay analysis in concurrency disputes.
7. SFSC Decision 4A_65/2018
Global and Equitable Assessment of Delay Damages
Principle:
Where precise allocation is impossible, tribunals may assess damages on an equitable basis.
Holding:
Lump-sum or percentage-based reductions upheld
Particularly suitable for overlapping delay causes
Importance:
Frequently cited in Swiss-seated EPC arbitrations.
V. Swiss Tribunal Practice on Time vs. Money
Swiss tribunals typically separate:
A. Extension of Time (EOT)
Often granted even where delays are concurrent
Focus on whether employer-caused delay prevented timely completion
B. Delay Damages / Prolongation Costs
Reduced or denied where contractor contributed to delay
Apportioned using Art. 44 CO principles
This approach avoids the rigidity of the common-law “no damages for concurrent delay” rule.
VI. Delay Analysis Methodologies
Swiss tribunals:
Do not mandate a specific method (CPM, windows, as-planned vs. as-built)
Focus on persuasiveness and transparency
Accept hybrid and pragmatic analyses
Prefer expert evidence over doctrinal purity
Courts will not review:
Choice of methodology
Technical correctness of scheduling analysis
VII. Standard of Judicial Review
Under Art. 190 PILA, the SFSC:
Will not reassess causation or delay apportionment
Will not replace the tribunal’s technical judgment
Intervenes only for:
Failure to address decisive arguments
Arbitrary exclusion of evidence
Fundamental procedural unfairness
This creates high predictability for concurrent delay determinations.
VIII. Key Takeaways
Swiss law rejects rigid concurrency doctrines.
Causation, not exclusivity, governs liability.
Apportionment is expressly permitted under Art. 44 CO.
Time and cost consequences are treated separately.
Equitable and global assessments are accepted.
Swiss courts show strong deference to arbitral findings.
IX. Summary Table
| Issue | Swiss Position |
|---|---|
| Arbitrability of delay claims | Fully arbitrable |
| Concurrent delay doctrine | Flexible, causation-based |
| Apportionment | Permitted |
| Extension of time | Often granted |
| Delay damages | Reduced or denied if concurrent |
| Expert reliance | Strong |
| Annulment risk | Very low |
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