Infrastructure Ecosystem Must Shift From Retrospective To Preventive Justice: CJI Surya Kant

Addressing the FIDIC Global Infrastructure Conference 2026 in New Delhi on September 14 on the theme “The Rule of Law and the Architecture of Infrastructure Delivery”, CJI Kant welcomed delegates from more than 70 countries and highlighted the close relationship between infrastructure development, contractual frameworks and the Rule of Law.

The CJI observed that while engineers, contractors and lawyers may view infrastructure projects from different perspectives, their ultimate impact is felt directly by the common man. He said infrastructure delivery matters because it directly affects the lives of millions, adding that the highest compliment an infrastructure project could receive was “silence”.

“A bridge that attracts no attention is generally one that is performing its function effectively. It only gains sudden voice, usually a very loud and unhappy one, when the structure fails, or when the project is delayed,” he observed.

Rule of law must form part of infrastructure architecture

CJI Kant said the Rule of Law extends beyond the ability of courts to correct an error after a project has been disrupted. It also requires processes to be designed so that expectations remain clear, powers are properly defined, risks are fairly allocated and disagreements have a credible and timely path to resolution.

He noted that infrastructure projects are inherently exposed to uncertainty, including unexpected ground conditions, regulatory changes and circumstances beyond the parties’ control.

The critical question, according to the CJI, is whether the contract has placed such uncertainty with the party best equipped to understand and manage it.

Contracts must create shared understanding of risk

The CJI highlighted the importance of contractual risk allocation, noting that infrastructure projects are preceded by an elaborate contractual structure comprising financing agreements, engineering, procurement and construction contracts, insurance arrangements, government concessions and standard forms.

He observed that incorrect allocation of risk could lead contractors to price defensively, while governments could end up carrying risks they are not best placed to bear. This, in turn, could result in arbitration or litigation.

A well-drafted contract, he said, must do more than merely record the commercial bargain. It must create a shared understanding of how parties will respond when unforeseen circumstances affect a project.

Dispute resolution should begin before the dispute

CJI Kant emphasised the importance of resolving disagreements at the project or site level before they develop into formal claims.

Recalling an example from the early years of a major Indian urban infrastructure project, he highlighted the importance of early intervention, frank communication and swift determination in preventing disagreements from becoming entrenched.

“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,” he said.

The CJI stressed that dispute resolution should not merely function as an “emergency exit” for a failed project but should form part of the ordinary governance of a successful one.

He said courts would continue to remain the ultimate guarantors of legality and enforceability. However, the success of a legal system should not be measured only by its ability to resolve disputes after they arise. The institutions surrounding infrastructure projects must also be assessed by their ability to prevent disputes from arising.

Calling for a shift “from retrospective justice to preventive justice”, CJI Kant said contractual and institutional frameworks should enable disagreements to be identified and addressed before they become disputes through communication and dispute-avoidance mechanisms.

He further observed: “The finest compliment to a dispute-resolution mechanism is not that it has resolved numerous disputes, but that the project it serves has had little need to use it.”

Highlighting the time-sensitive nature of infrastructure projects, he said: “A bridge cannot pause construction while an arbitration proceeds. A highway cannot wait for an appeal to run its course and a power project cannot suspend its economic purpose while parties debate meaning of force majeure clause.”

Standardisation can provide common language for global infrastructure

Turning to standardisation, the CJI noted that infrastructure projects increasingly involve participants across jurisdictions, with capital, engineering expertise, construction capacity and the asset itself often connected to different countries.

He said standardisation could reduce uncertainty by providing a familiar contractual framework for issues such as payments, variations, extensions of time, unforeseen conditions and dispute resolution.

At the same time, he cautioned that no single contractual form could suit every project or jurisdiction, as local laws, institutional capacities and circumstances would necessarily differ.

According to the CJI, standardisation should provide a familiar basic contractual structure while retaining sufficient flexibility to accommodate project-specific realities.

He said such standardisation could give an Indian contractor, European lender, African government and Asian consultant a shared vocabulary for understanding risk, responsibility and remedies, regardless of where a project was located.

India's infrastructure expansion requires stronger contractual frameworks

CJI Kant observed that India was undertaking infrastructure development at a scale and pace without real precedent in its past.

He said the ambition could not simply be to build more, but to build faster, more resiliently, more sustainably and more productively.

The CJI stressed that world-class engineering and innovative financing, although necessary, were not sufficient.

The infrastructure ecosystem, he said, also required contracts that create confidence rather than confrontation, procurement systems that reward genuine value rather than merely the lowest number, and dispute frameworks capable of resolving disagreements at the pace required by projects.

CJI outlines five priorities for infrastructure governance

CJI Kant called upon stakeholders from the government, industry and legal profession to give sustained attention to five priorities:

1. Clarity of obligations

2. Balanced allocation of risks

3. Sensible standardisation

4. Early dispute avoidance

5. Swift and independent resolution where disputes cannot be avoided

He said these principles were not merely legal technicalities confined to the fine print of contracts, but were “instruments of good governance”.

'Real measure of success' is fewer disputes

Concluding his address, CJI Kant reiterated that the Rule of Law was not only about correcting what had gone wrong, but also about creating conditions for things to go right. He said the real measure of success was therefore not simply how quickly disputes were resolved, but how effectively projects were designed so that fewer disputes arose in the first place.

The CJI expressed hope that participants at the conference would carry this philosophy to their projects and countries, contributing not merely to better contracts but to institutions worthy of the infrastructure they protect and infrastructure worthy of the people who use it.