In general, there is a gradual transition between the use of invalidity rules and the completion of a contract.
Completion (or filling) is relevant when a situation that is not described in the contract between the parties arises and the courts decide to repair this by estimating what the parties would have agreed on rather than completely overriding the contract. Completion, or filling, differs from interpretation in that in interpretation, the meaning of a given condition or a particular wording is found. Although the courts do not need a large peg to hang their views, it must be required that there is “something” to interpret. The contract must leave some reasonable doubt.
By completion (or filling), one often leans on what Mads Bryde Andersen refers to as “background rights”, see page 342. In U2014B.367, the renowned author, Eigil Lego Andersen, sums it up as follows: “In the absence of obligatory declaratory rules, completion may happen e.g. with analogies from laws of obligation, principles of obligation, industry practice, contract practice (across industries), the generally best solutions for cases like this or the concrete best solution.” In the same article, Lennart Lynge Andersen concludes: “A contract must be interpreted and completed/filled in in accordance with good agreement interpretation practice. In itself, this does not provide much guidance, but it does suggest that the individual judge or arbitrator, despite the scope of the interpretation task for personal judgments, acts on the basis of a generally accepted ideal that there is a right and fair way of interpretation grounded in basic legal ideals such as freedom of contract, demands for due diligence for the sake of others and, for one self, honesty and support for the creation and preservation of values.”
This leaning on the background rights means two things, partly that one will be inclined to fall back on ABT93, partly that the “minimum rule” is a contract law interpretation principle to which importance is added. The minimum rule states that a promise must be interpreted so that it is least burdensome to the recipient, re. Stig Jørgensen: “Contract Law I”, page 186-187. In “Agreement and Intermediaries”, page 381, it is stated that: “Whoever claims to have acquired the right on more favourable terms than usual must, by the alleged pledgee’s denial thereof, prove the correctness of his claim. If the agreement is unclear or unresolved so that there are several possibilities for interpretation, then the party who has had the best access and the greatest incentive to secure evidence will have to carry the burden of proof regarding the correctness of his claim when the other party claims an understanding more in line with the correct one.
A clause which excludes one party’s liability for non-performance or which permits one party to render performance substantially different from what the other party reasonable expected may not be invoked if it would be grossly unfair to do so, having regard to the purpose of the contract.
22.1 VBA Case law
VBA is especially known for being eager to reach a ruling that suits both parties and to find a fair solution which means that an argument that a given interpretation supports the purpose of the contract is likely to find sympathy with the Arbitration Court. The judges’ ruling of the case are accustomed to rise above the matter and look upon the purpose of the contract.
VBA is known to seek the intention of the parties as well as considering the actual handling of the contract rather than the wording of the contract, e.g. in rulings which decide that a turnkey contract should be treated as a “Contract of building”, even if the contract presents itself as a turnkey contract and even if the Employer has actually taken over the task of designing the construction with the consequence that the Employer has the responsibility for the construction design. VBA is quite reluctant to accept clauses that let the Constructor take on additional risk which is normally born by the Employer. See e.g. professor Torsten Iversen: ”Construction Law” 1st edition, 2017, page 343, with reference to 2015.296 VBA and 2015.307 VBA, both concerning situations where the actual conditions on the building site differed from those which the project was based upon. Another example is TBB 2006.114 where VBA supplemented a construction contract in order to reach a fair decision in a case where the pricelist in the offer did not regulate the price of the tarpaulins.
22.2. Burden of proof
In an unpublished ruling from VBA handed down by an arbitral tribune led by former Supreme Judge Mogens Hornslet in 1998 in connection with the construction of the onshore facilities for A/S Øresundsforbindelsen (“ASØ”), the contractor HPA (a joint venture consisting of MT Højgaard, Pihl and Aarsleff) was awarded a compensation for disruption of construction work on land. The project was disrupted by changes in the schedule of the bridge work as a result of the Swedish Water Court’s (“Vattendomstol”) decision to initiate further investigations, a political decision to construct a part of the motorway in a tunnel under water, expropriation cases and municipal councils balancing the considerations of a state-owned Employer with regard to the complaints from its own citizens.
The case was about the general influence of this complexity as it disturbed the works of constructing entrances to parking houses in the airport, ground entrances and a number of other minor conditions. There were single claims of not more than EUR 1,000 which in total became a significant claim.
HPA won about 2/3 of its claims, primarily by creating the impression that ASØ had not managed to oversee the complexity of building a motorway through Copenhagen and had not understood how dependent the contractor is on predictability in a complex construction case. HPA convinced VPA that even small deviations were significant for momentum and economy.
The method for achieving this result was precisely to present the individual requirements regarding processes and decisions that had led to downtime, changed material consumption, changed execution and backflow. Overall, the picture was that a number of issues, for which the Employer traditionally is responsible, created more difficult conditions for HPA than they should have anticipated and that the task of solving this through increased coordination was the responsibility of the Employer.