3. Complaint
- According to practice, there are strict requirements for the contractor’s complaint in case of compensation or indemnity due to delay.
- It is assumed that a complaint rule applies equivalent to section 27 of the Danish Sale of Goods Act (købeloven) according to which the creditor must file a “neutral complaint” without undue delay in order to preserve his or her right to rely on the delay at a later time.
- In TBB 2016.443, the contractor first made his disruption claim following the completion of work. At no time during the completion had the contractor notified the employer that expenses accrued which would be claimed covered. The employer therefore did not have to pay the contractor’s claims.
- However, if the contractor “knew or should have known” that a delay claim would be advanced later on, the delay claim will not be precluded due to the lack of a complaint.
- In TBB 2008.418, the arbitration tribunal took into account that based on the correspondence that took place regularly between the parties, the employer’s consultant could not have been in doubt in the period until the handover that the principal contractor wanted an extension of the time limit and financial compensation due to the project alterations. Thus, the arbitration tribunal seemed to support the principal contractor’s statement that the arbitration tribunal does not take into account any formalities regarding notification but that rather the facts of the case are considered.
