UNNECESSARY COMPLEXITY – RECENT DEVELOPMENTS IN GERMAN CONSTRUCTION LAW
ANDREAS J ROQUETTE, LL.M. (NYU)
Partner, CMS Hasche Sigle (Berlin)
(Email: [email protected]
This article discusses recent developments after the enactment of the new German construction law which entered into force on 1 January 2018. It is an update of a previous ICLR article and, based on the example of “change orders”, discusses the complexity resulting from the duality of the old and the new legal regime.
Germany has a large domestic market for construction projects. Landmark projects known abroad include the Elbphilharmonie Concert Hall in Hamburg, the Messeturm and other skyscrapers in Frankfurt as well as the railway project Stuttgart 21. At the same time, large German construction companies are traditionally also involved in large projects in other countries, e.g. the Øresund Bridge (between Sweden and Denmark), the Gotthard Base Tunnel (Switzerland) and the Airport in Athens. Recent developments in German construction law may thus be of interest to the international reader.
In 2017, the author published an article about the imminent enactment of the new German construction law and gave an outlook on the anticipated changes for construction projects. 1 As the new law applies to all construction contracts signed after 1 January 2018, initial experience has been gained with how market participants and the German courts deal with the new legislation in practice.
As will be outlined below, the new German construction law only covers part of the issues typically arising during a construction project, and therefore is only considered to be a first step in codifying a modern construction law regime. In the meantime, a dual set of rules exists under the old and the new regime. The legal situation is, as a result, complicated rather than simplified by the new construction law. Since it would go beyond the scope of this article to discuss all aspects of the new legislation, the discussion of the legal complexity is limited to the subject of change orders.
1 Roquette, A, “Germany enacts new construction law”,  ICLR 443 .
Pt 4] Unnecessary Complexity