Commercial disputes in construction: contractual prevention + litigation plan

In construction, a dispute rarely "arises" in court - it is built on site, months in advance: a verbal instruction carried out without confirmation, a notice sent after the deadline, a handover endlessly postponed. For developers, contractors and investors, the right question is not "how do we win the dispute?", but "how do we build our evidentiary position before the dispute even exists?"

This guide covers: the frequent causes of disputes (confirmed by international specialist reports), the four pillars of contractual prevention, the 72-hour incident protocol, the three dispute resolution routes - and how Buju, Stanciu și Asociații (BSA) structures these mandates.

72h

the incident reaction protocol - notice, evidence, costs

pillars of contractual prevention: variations, deadlines, handovers, payments

dispute resolution routes: litigation, arbitration, adjudication (DAB/DAAB)

cause of dispute per international reports: variations handled informally

Where construction disputes come from: five recurring causes

International specialist reports - such as the Arcadis Global Construction Disputes Report and the HKA/CRUX analyses - point year after year to the same sources of dispute, and practice in Romania confirms them:

Variations and changes in works handled informally
Verbal instructions, ambiguous emails, additional works carried out without a written variation order - then the dispute over "who pays".
Delays and disputes over extensions of time
Penalties applied without analysis of concurrent causes; extension of time (EOT) claims submitted late or undocumented.
Quality, non-conformities and defects
Ambiguous handovers, disputed remedial works, patent vs. latent defects - with different warranty regimes (including the warranty of proper execution and statutory liability for structures).
Payments, interim statements and guarantees
Interim payment statements partially disputed yet not paid in full, retentions applied at discretion, calls on performance bonds.
Incomplete or contradictory contract documentation
Annexes that contradict one another, undefined order of precedence of documents, contracts "adapted" from incompatible templates.

Contractual prevention: the four pillars

The cheapest dispute is the one that never happens - because the contract has already answered the questions that generate disputes. BSA's prevention audit focuses on four areas:

1. The variations mechanism

Who may order changes, in what form (mandatorily written), with what effect on price and time - and what happens to works carried out without a variation order. FIDIC-type international standards offer tested mechanisms, but they must be coherently adapted to Romanian law.

2. The regime for delays and extensions of time

Clear notice deadlines (with forfeiture as a sanction, where applicable), treatment of concurrent causes, capping of penalties and their correlation with actual loss - plus the works programme as a contractual document, not a decorative one.

3. Handover and quality

The procedure for taking over the works on completion and the final handover, the treatment of objections, remedial works during the warranty period and the distinction between patent and latent defects - with reference to the legal framework for construction quality (Legea nr. 10/1995 (Law no. 10/1995)).

4. Payments and guarantees

Certification of interim payment statements with deadlines and consequences, the conditions for retentions, the performance bond regime and the strictly defined conditions under which performance bonds may be called.

Interactive: how "litigation-ready" is your contract?

Tick each statement that is true for the contract you are about to sign (or under which the project is already running):

Eight clauses that decide disputes before they arise

Variations may only be ordered in writing, with a defined effect on price and time
Extension of time claims have clear procedures and notice deadlines
Delay penalties are capped and linked to a mechanism for analysing causes
The handover procedure has deadlines, and silence/use of the works have defined consequences
Interim payment statements have a certification deadline and consequences for non-certification
Calls on performance bonds are conditional on documented prior steps
There is an order of precedence for contractual documents (contract, annexes, tenders, specifications)
The dispute resolution clause (litigation/arbitration/adjudication) was deliberately chosen, not inherited from a template

Every missing clause is a pre-programmed dispute

The gaps above do not remain theoretical: they become exactly the questions that a court or an arbitral tribunal will settle - expensively and late. Request a contractual prevention audit before signing.

Quick test: solid or vulnerable position?

Situation 1: The site supervisor verbally requests, on site, a change to the technical solution. The contractor carries it out "so as not to block the works" and invoices it at the end.

Vulnerable. Additional works carried out without a written variation order are the classic source of dispute: the employer will claim it never ordered them. The correct reflex: written confirmation before execution or, at the very least, immediate notice describing the instruction, its author and the estimated effects.

Situation 2: Following a delay caused by late handover of the site, the contractor submits the notice within the contractual deadline, with a site diary, photographs and the relevant correspondence attached.

Solid. Many contracts make the right to an extension of time and damages conditional on timely notice - and contemporaneous documentation of the facts is worth more than any after-the-fact reconstruction. Exactly the 72-hour protocol applied correctly.

Situation 3: The employer has been using the building for several months ("de facto handover"), but refuses to sign the handover minutes, raising general, undetailed objections.

Risk zone. Delaying completion acceptance sine die creates uncertainty over guarantees, penalties and payments for both parties. That is why the acceptance procedure must have contractually defined deadlines and consequences - including for use of the works without acceptance - and objections must be raised specifically and documented.

Situation 4: In a "relationship unblocking" email, the project manager writes: "we acknowledge we are late, but let's find a commercial solution".

Vulnerable. Informal acknowledgements in emails and unsigned minutes invariably resurface as evidence in the file. Commercial negotiation is welcome - but within a controlled framework: correspondence marked accordingly, legal positions kept separate from commercial proposals, and the lawyer's involvement before any "unblocking messages".

If the dispute still arises: the three dispute resolution routes

Court, arbitration or adjudication - the criteria for choosing

The choice is not ideological, but practical: the value and technical complexity of the dispute, the need for confidentiality, the international composition of the parties and - decisively - what is already written in the contract. A dispute clause inherited from a template can, by itself, cost more than the rest of the negotiation.

The BSA litigation plan: from incident to strategy

The first 72 hours - the incident protocol

Notice sent within the contractual deadline (many contracts tie the right to damages to timely notice); contemporaneous documentation: site diary, photographs, correspondence, instructions; records of additional costs; discipline in communication - no informal acknowledgements.

The first 30 days - assessing the position and structured negotiation

Analysis of the contract and the evidence (who can prove what); quantification of claims with technical support (extrajudicial expert opinions where useful); letter of claim and negotiation within a controlled framework - legal positions kept separate from commercial proposals.

The contentious phase - court, arbitration or adjudication

Evidentiary strategy (documents, witnesses, technical expert evidence), interim measures where necessary (attachment, presidential ordinance), management of expert evidence - usually the decisive proof in construction - and, in parallel, a continuous assessment of settlement windows.

"In construction disputes, the case is usually won on the documents created in real time on site - not on the closing arguments. Our role ideally begins when the contract is drafted and at the first incident, not when the summons is received."

- Buju, Stanciu & Asociații - working principle in construction disputes

BSA compared with other firms - briefly and fairly

Large Romanian law firms have solid construction practices and extensive resources for large-scale projects. BSA stands out through its working model: direct involvement of the partner, integration of contractual prevention with litigation strategy in the same workflow, and concrete deliverables (clause audit, site protocols, phased litigation plan). Like any positioning, it is worth testing with documented deliverables for your specific project - not taken at face value.

Frequently asked questions

What are the most frequent causes of construction disputes?

International reports (Arcadis, HKA/CRUX) consistently point to: informally managed variations, delays and disputes over extensions of time, quality issues and defects, non-payment of work statements, and incomplete or contradictory contractual documentation.

Court or arbitration for a construction dispute?

It depends on the contract clause and the stakes involved: arbitration offers confidentiality, the arbitrators' technical expertise and easier international enforcement, at higher cost; court remains the default route absent an arbitration clause. In FIDIC contracts, adjudication mechanisms (DAB/DAAB) are usually a mandatory prior step.

What should I do as soon as an incident with dispute potential arises?

Apply the 72-hour protocol: notice within the contractual deadline, contemporaneous documentation (diary, photographs, correspondence), records of additional costs and discipline in communication - no informal acknowledgements in emails or unsigned minutes.

How does BSA approach construction disputes?

Through a two-stage framework: contractual prevention (audit of variations, deadlines, acceptance, payments and guarantees, plus site documentation protocols) and, if the dispute arises, a phased litigation plan - assessment, structured negotiation, then the appropriate resolution route. Discuss your project.

Contract under negotiation or an incident already arisen on site?

The step with the best cost/impact ratio is a contractual prevention audit before signing - or, if the incident has already occurred, a document-based assessment call: contract, correspondence, site diary and timeline of events.

Sources and references

Civil Code - the construction contract and liability for defects: legislatie.just.ro · Legea nr. 10/1995 (Law no. 10/1995) on construction quality: legislatie.just.ro · FIDIC - contract conditions (variation mechanisms, EOT, DAB/DAAB): fidic.org · Arcadis - Global Construction Disputes Report: arcadis.com · HKA - CRUX Insight Report (causes of disputes and claims): hka.com · The New York Convention (1958) on the Recognition and Enforcement of Foreign Arbitral Awards: uncitral.un.org · The International Commercial Arbitration Court attached to the CCIR: arbitration.ccir.ro · Buju, Stanciu & Asociații (BSA): bsa.ro

Disclaimer: This article is for general informational purposes only and does not constitute legal advice. Solutions depend on the clauses and facts of each project; for a formal opinion, a dedicated analysis of the contract and documents is required.