An interview with François Muller at Altana to discuss their recent recognition as a "Law Firm of the Year" in construction law.
Can you tell me about some of Altana’s recent achievements that you believe contributed to the firm being named a “Law Firm of the Year”?
In the French domestic market, where the team is or has been involved in most the biggest ongoing construction projects, one litigation case may have brought some more publicity, which is the SNCF. Two partners of the team are involved in this case, defending against a public company, SNCF, the French railway operator.
The SNCF claimed several hundred million Euros against the most important French construction companies, alleging damages due to competition law infringements that had been sentenced years before by the Competition Authority; the firm granted a dismissal in the first instance judgment for a major company, as a result of a singular winning strategy. Moreover, it’s a case raising complex legal issues and questions regarding jurisdiction, foreclosure, quantum, etc.
Internationally, the firm is routinely entrusted with international arbitration matters in the field of construction. Although our international and arbitration do not limit to this sector, obviously our expertise in international construction disputes contributes greatly to the firm’s reputation in that area.
What are pressing issues in France within construction law currently?
An issue that is not specific to construction law but we have to deal with in that field as well is the very recent French civil code reform, related to the contractual law. An important reform we are just beginning to implement with our clients in drafting their contracts, and we will go on with during coming years when enforcement will come to courts. Another issue is the ongoing reform of one of the most frequently used standard form of contract, for the private sector: the NFP 03.001 (current version is dated 2000).
Can you tell me about another recent landmark case and how your firm worked on it and some of the achievements throughout it?
We just completed the hearings on an arbitration case representing a Lebanese company claiming $100,000,000 against a main contractor for an oil infrastructure project in the Middle East. In this part of the world where civil law is mostly inspired from the French Napoleonic code and its Egyptian heir, our expertise as a French law firm once again proved to be relevant for the case.
What do you find are the biggest challenges within construction law, specifically in France?
The biggest challenge here is to master the complexity and sophistication of the French construction law. Among others, we have a dual regime between public construction law and private construction law, which may be subtly different, and that’s not even speaking about public procurement rules, which of course are specific to the former. Regarding lawsuits from contractors against public owners in the frame of public works, a recent case law change has introduced more risks and complexity in the claims management (i.e., public owner is no longer responsible toward the contractor for engineer, coordinator, or other contractors’ faults, but only for its strictly personal breaches, which oblige the contractor to enter into lawsuits against different stakeholders, under various legal regimes and even jurisdictions, for damages arising from the very same project and technical difficulty). We have a unique—as far as I know—law about subcontracting (by an act as of December 31, 1975), which still triggers lots of litigation today, as well as a specific regime of latent defects, the decennial liability of the constructors, and its specific associated insurance system.
What changes do you foresee occurring in your practice area in the future? Or do you see any trends occurring?
Good question; I have to polish my crystal ball! Probably the standard forms of contracts will go on evolving, with UK lawyers promoting the NEC 3 (and coming NEC 4) and FIDIC contracts influence spreading. In parallel with that search of the right form, stakeholders keep on looking for the best way to handle disputes as well. To reduce the length and costs of dispute resolution in the construction area will continue to be a matter of concern.
One can also think about the increasing use of the BIM technology, which may have consequences on the liability of the stakeholders to a construction project.
Lastly, after the contractual law, the tort law will be modified in the French civil code, which will necessarily imply changes in a field where contractual and tort liabilities intricate in complex manner.
