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CJI Surya Kant Urges Shift from Retrospective to for Infrastructure Projects
In a compelling address at the Global Infrastructure Conference , Chief Justice of India Surya Kant called for a fundamental reorientation of the legal framework governing infrastructure projects. He urged a move from “”—resolving disputes after they have disrupted projects—to “,” where contractual and institutional mechanisms are designed to identify and address disagreements before they escalate into full-blown . The CJI’s remarks highlight a growing recognition that the is ill-suited to the time-sensitive nature of infrastructure development.
“What our infrastructure ecosystem therefore needs is a shift from to : from questioning, after the project has been disrupted, to designing the contractual and institutional framework so that disagreements can be identified and addressed before they become disputes through communication and ,” the CJI stated. He emphasized that the finest compliment to a dispute resolution mechanism is not that it has resolved many disputes, but that the project it served had so little need to use it.
The Case for
The Chief Justice underscored that while courts and arbitral processes remain indispensable as “ultimate guarantors of legality and enforceability,” infrastructure projects cannot afford to pause while disputes wind through formal proceedings. “A bridge cannot pause construction while an proceeds; a highway cannot wait for an appeal to run its course; and a power project cannot suspend its economic purpose while the parties debate the meaning of a ,” he observed. This practical reality demands a legal system that measures success not only by how effectively it resolves disputes after they arise, but also by how effectively it prevents them from arising in the first place.
The CJI articulated a vision of the that extends beyond correcting errors after they occur. He argued that the must be embedded in the architecture of infrastructure delivery itself—present in every contract, every allocation of risk, and every mechanism a project builds to resolve its own disagreements. This proactive approach, he said, requires designing contracts and institutions that make expectations clear, define powers properly, allocate risks fairly, and provide credible and timely routes for resolving disagreements.
Designing Contracts to Prevent Disputes
Central to the CJI’s call for is the design of contracts. He stressed that a well-drafted contract should do more than record the commercial bargain; it should create a shared understanding of how the parties will respond when the project encounters circumstances that neither party expected. Infrastructure projects frequently face unforeseen ground conditions, regulatory changes, and other events beyond the control of the parties. When is wrong, the consequences are predictable: contractors price defensively, governments carry risks they are not best placed to bear, and the parties eventually find themselves in or court.
“When that allocation is wrong, the consequences are familiar. Contractors price defensively to protect themselves; governments end up carrying risks they were never best placed to bear. And the parties eventually find themselves in an or a Courtroom,” the CJI said. He called for allocating risks to the party best placed to manage them, a principle that, if applied consistently, can reduce the frequency and severity of disputes.
and
The CJI also made a strong case for greater in infrastructure contracts. Noting that modern infrastructure projects involve capital, engineering expertise, construction capacity, and assets spread across different countries, he argued that reinventing provisions dealing with payments, variations, extensions of time, unforeseen conditions, and dispute resolution for every project creates unnecessary uncertainty. However, he clarified that he was not advocating a single contractual form for every project and jurisdiction, as local law, local capacity, and local circumstances would continue to matter.
“ in that sense means that the basic structure of an infrastructure contract is familiar, while still leaving room for the realities of a particular project. It gives an Indian contractor, a European lender, an African government and an Asian consultant a shared vocabulary in which risk, responsibility and remedy mean roughly the same thing regardless of where the project happens to be located,” the CJI explained. Such can reduce transaction costs and make dispute resolution more predictable.
Learning from Success
The CJI drew on a practical example to illustrate the potential of . He referred to the early years of one of India’s major urban infrastructure projects, where engineers and contractors were encouraged to resolve disagreements at the site level within days, before they became formal claims. The project was completed ahead of schedule and with little compared to comparable infrastructure projects elsewhere. This approach, he said, showed that dispute resolution could become part of the ordinary governance of a successful project rather than an “emergency exit for a failed project.”
Implications for the Legal Profession
The Chief Justice’s address carries significant implications for the legal profession. He stressed that lawyers have a role in learning from recurring disputes. If disputes over variations, payments, extensions of time, or changed site conditions repeatedly arise, lawyers should consider whether the contract itself can be drafted differently for future projects. This shifts the focus from reactive to proactive contract design and risk management. Legal professionals working in infrastructure law must develop expertise in , such as , , and .
The CJI also called on government, industry, and the legal profession to focus on clarity of obligations, balanced allocation of risk, sensible , early dispute avoidance, and swift and independent resolution where disputes cannot be avoided. “These are not narrow legal technicalities confined to the small print of a contract. They are, in the fullest sense, instruments of ,” he said.
Conclusion
Concluding his address, the CJI stressed that the is not only about correcting what has gone wrong but also about creating conditions for things to go right. “The real measure of success, therefore, is not simply how quickly we resolve disputes, but how well we design projects so that fewer disputes arise in the first place,” he added. For a country like India, which is embarking on an ambitious infrastructure expansion, the call for offers a roadmap to build faster, more resiliently, and more sustainably—by embedding legal foresight into the very fabric of project delivery. Legal professionals, policymakers, and industry stakeholders would do well to heed this message and reimagine their approach to contracts and dispute resolution.
