Sharpening the Time Bar: Aligning time bar consequences for better enforcement
Judges’ citation: The judges praise the second place winner for their innovation. The author identifies a driver of disputes and uncertainty in the sector and proposes a drafting solution.
Time bars aim to give parties certainty. But, in practice, it is very difficult to predict whether and how decision makers will apply them. This essay explains why time bars are generally a good thing, but could be better. The consequences of non-compliance with time bars are, or at least appear to be, out of proportion with this goal. Decision makers avoid applying time bars, which creates uncertainty, promotes expensive dispute resolution, and lessens incentives for early engagement with possible disputes. A solution, with some proposed drafting, is to move away from an all-or-nothing approach to time bars, and to instead discount claims in increments based on how late a party gives notice. Daniel’s essay