Participation by Thibault CHEVRIER, Lawyer, in the Conference organised by the Luxembourg Chamber of Trades: Building on a Solid Foundation

(photo credit: Chambre des Métiers Luxembourg)

On 16 March 2026, Maître Thibault CHEVRIER, Lawyer and Partner at the law firm CHEVRIER & FAVARI, spoke at the conference ‘Building on Solid Ground’ organised by the Luxembourg Chamber of Trades.

This presentation, focusing on the role of the lawyer in securing construction contracts and the use of expert advice, was aimed at professionals in the trades and construction sectors.

1. Contractual freedom at the heart of construction contracts

The construction sector involves contracts of great technical and financial complexity. Even before work begins on site, the quality of the contract drafting largely determines the parties’ ability to protect themselves in the event of a dispute. It is precisely in this area that the lawyer intervenes first and foremost.

Luxembourg law enshrines a very high degree of contractual freedom.

Article 1134 of the Civil Code provides that:

Legally formed agreements are binding on those who have entered into them.

This means that the parties have considerable latitude to structure their rights and obligations.

This freedom is not without limits: certain public policy provisions are binding on the contracting parties, such as the rules relating to the ten-year warranty, which cannot be subject to exemption clauses.

In this context, the prior review of contractual documents is an essential step.

Several clauses warrant particular attention: exemption or limitation of liability clauses, late payment penalties, warranty mechanisms, conditions for acceptance of the works, and the terms of payment for additional costs.

Seeking legal advice at an early stage helps to avoid contractual imbalances which, once the project has started, can lead to lengthy and costly disputes.

2. Provide for expert assessment from the drafting stage of the contract

One of the key contributions of a lawyer specialising in construction law lies in their ability to anticipate technical disputes.

When a disagreement arises regarding the compliance of a structure, the quality of the materials used, or adherence to best practice, the resolution of the dispute often depends on the opinion of a specialist technician.

Including contractual provisions for expert assessment helps to avoid procedural deadlocks later on.

A well-drafted expert assessment clause must clearly set out the process: procedures for appointing the expert, timeframes for intervention, rules for justifying conclusions, and the allocation of costs.

These details are not mere formalities: they determine the mechanism’s actual effectiveness in the event of a crisis.

An incomplete contractual framework risks rendering the clause unenforceable at the very moment the parties need it most.

The Luxembourg Institute for Standardisation, Accreditation, Safety and Quality of Products and Services (ILNAS) regularly publishes technical guidelines useful for defining the standards applicable in the construction sector.

In the absence of an expert assessment clause in the contract, it is always possible to request an expert assessment through the courts.

It is in this case that the summary expert assessment procedure takes on its full significance, and proves to be a valuable tool for both the lawyer and their client.

3. The summary expert assessment procedure: an essential legal tool

Where no contractual clause provides for an expert assessment, or where a dispute arises before any amicable settlement is reached, the lawyer may resort to the summary expert assessment procedure based on Article 350 of the New Luxembourg Code of Civil Procedure.

This provision states that:

Where there is a legitimate reason to preserve or establish, prior to any trial, evidence of facts on which the resolution of a dispute may depend, legally admissible investigative measures may be ordered at the request of any interested party, by application or in summary proceedings.

Three conditions must be met in order to make use of this procedure.

a) The application must be made prior to any proceedings on the merits: if a summons for payment has already been filed, recourse to summary expert proceedings is precluded.

b) The judge then assesses the utility of the measure, that is to say, its ability to establish facts that are decisive for the resolution of the dispute.

c) Finally, the measure requested must constitute a legally admissible investigative measure, which includes expert assessment and technical consultation.

It should be noted that the case law of the Luxembourg District Court regularly emphasises that an expert assessment cannot be ordered to compensate for the parties’ failure to adduce evidence.

In this procedure, the lawyer plays a central role at every stage:

• drafting the application for interim relief,
• representation at the hearing,
• presence during expert inspections on site,
• participation in settlement discussions and their formalisation,
• analysis of preliminary reports and use of the final report in the proceedings on the merits.

4) The judge’s assessment of best practice

Once the expert report has been filed, the question arises as to the authority the judge accords to it.

Under Luxembourg law, the principle is clear: the judge generally follows the expert’s conclusions.

However, Article 446 of the NCPC specifies that “the judge is not bound by the findings or conclusions of the expert”, which preserves the judge’s sovereign discretion.

Case law strictly regulates the exercise of this discretion.

In a judgment of 11 June 2025, the District Court of Luxembourg reiterated:

(…) that it is a matter of principle that the courts must depart from the expert’s conclusions only with the utmost caution and solely where there are serious grounds for concluding that he has not correctly analysed all the data submitted to him.

This position of principle, which is consistent in Luxembourg case law, confers considerable de facto authority on the expert report in construction proceedings.

This is why a lawyer specialising in construction law in Luxembourg must be actively involved in monitoring the expert assessment process, provide relevant comments on the preliminary reports, and ensure that all relevant technical data is provided to the expert before the submission of their final conclusions.

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For any assistance relating to an expert assessment procedure in Luxembourg, or if you wish to have your contracts reviewed, please do not hesitate to contact us.