Unforeseen subsurface conditions: eternal dilemma

The natural and geotechnical conditions found in the subsurface of the project’s site and surrounding areas are often a point of stress for parties during contract negotiation, execution and dispute resolution. From the contractor’s perspective, it is sometimes hard to undertake responsibility for a factor that it has not had the time, the opportunity or even the conditions to fully understand. For the owner, it may be unfeasible to bear the risk for such conditions, especially when it has few or no technical expertise to manage such risks.

Although considerable efforts have been engaged by practitioners worldwide, it is rare to see a one-size-fits-all solution to the problem. However, as unforeseen as such subsurface conditions may be, there are both legal and practical ways to mitigate their impacts to the contract.

This session will explore the legal treatment of unforeseen subsurface conditions across different jurisdictions, propose, and discuss possible solutions and approaches for the mitigation of the liabilities arising out of such conditions.

Speaker presentations

• Adrian Cole - Evolution of the treatment of risk allocation and responsibility for subsurface conditions
• Virginie A. Colaiuta - French Law Approach
• Dr Lyda Bier - Pollution and contamination of soil and/or groundwater as an unforeseen subsurface condition