If it can be proven that a delay is caused by the employer, the contractor is generally entitled to an extension of time and financial compensation according to section 27, subs. 1, no. 1 of AB 92. The contractor’s task is to meet the burden of proof that the delay cannot be caused by the contractor’s error or risk and that the work was at a “critical path”. This follows from general rules as to burden of proof and sections 24 and 26 of AB 92, see also the “Alsion” ruling reproduced in the Danish Journal of Housing and Construction (Tidsskrift for Bolig- og Byggeret) (TBB 2014.773) in which the arbitration tribunal stated the following:
”In order to assess [E’s] claim for an extension of time for the completion of the construction according to section 24 of AB 92, the arbitration tribunal must be able to establish with predominant certainty whether the delays affected the completion date, meaning whether each delay affected activities at the critical path or activities which have become critical due to the delay.”
The requirements for the contractor’s burden of proof may vary, and examples have been seen in practice that the arbitration tribunal made stringent as well as moderate demands on the strength of the burden of proof. If the contractor is not able to show that he is entitled to an extension of time, the contractor’s delay is per definition actionable.
Placing the responsibility for delays and their consequences are often difficult for the parties to agree on. This is specifically the case in construction projects that are affected by parallel delays and where several circumstances therefore delay the construction concurrently.
Concurrent delays have not been the object of much discussion or case law in Denmark, and accordingly, legal consequences of concurrent delays (parallel delays) are uncertain.
Only one PhD thesis on parallel delays is available in Denmark: Concurrent Delay in Construction Disputes (the PhD thesis was printed and published by Werlauff Publishing A/S in 2015) by Sylvie Cavaleri. The thesis is a comparative analysis of parallel delays in Danish and English law, respectively, primarily aiming to clarify how disputes regarding parallel delays are solved in these two court systems. The essential parts of the thesis are reproduced in Kasper Mortensen’s and Casper Christiansen’s article ”Parallelle forsinkelser – når tid ikke er penge” (parallel delays – when time is not money) from 2016 reproduced in the Danish Journal of Housing and Construction (TBB 2016.696) of which this report will provide a summary.
Arbitration practice has only quite sporadically affected parallel delays. In recent years, the Arbitration Tribunal for Building and Construction (Voldgiftsretten for Byggeri og Anlæg) has given one ruling touching on the topic where the delay was attributable to circumstances with the employer as well as with the contractor. The ruling is reproduced in the Journal of Housing and Construction (TBB 2018.649).