The UAE, and Dubai in particular, is one of the leading centers in the world for major construction projects. Many, if not most, large construction projects in the UAE (as well as the wider MENA region) give rise to claims and counterclaims between employer and contractor, agreed settlement of which is often unfeasible; requiring a neutral decision maker who can make a final and binding determination of disputes.
The UAE Courts, whilst frequently dealing with smaller scale construction disputes – judgments in which cases form the bedrock of UAE construction law jurisprudence – are generally not considered equipped to deal with disputes in major projects, due to the lack of specialist judges familiar with construction matters, equivalent to bodies such as the Technology and Construction Court in London.
UAE court procedure also does not permit the range of evidence usually required to address the numerous technical issues and voluminous documentation common to major construction disputes, such as detailed witness statements from technical personnel, to be adduced. Document disclosure/ discovery, often of significant value in the resolution of complex construction disputes, is also highly unusual, and is restricted to narrow categories, by the UAE Courts. In common with other civil law jurisdictions, Judges generally do not consider that examination and decision on technical issues is a matter for them.
As a result, Court appointed experts, on areas such as quantum and delay, are ubiquitous, and are frequently granted a far greater degree of latitude than would be permitted in common law jurisdictions or, generally, in international arbitration proceedings. In particular, contrary to the usual approach in both the former and the latter fora, Court appointed experts in the UAE are frequently asked to address questions that are, in effect, issues of liability.
As a result of such issues, arbitration, usually in the English language, has become the default forum for the resolution of construction disputes on major projects in Dubai and throughout the UAE.
The UAE is an Arab civil law jurisdiction, and the law relevant to construction disputes therefore differs substantially from that applicable in both common law jurisdictions and many European civil law jurisdictions. By way of example, Courts and Arbitral Tribunals have the power to vary contractual liquidated damages clauses to reflect an actual loss.
The local law relating to the authority to contract and to enter into arbitration agreements is also peculiar to the UAE. The applicable rules of contract interpretation are also very different in the UAE, and Arab civil code jurisdictions in general, as compared with common law jurisdictions, and such differences may have an acute bearing on the outcome of construction disputes. Likewise, the law relating to interest, and procedural law, including the law relating to the annulment and enforcement of arbitration awards, is specific to the UAE.
The applicable rules must be complied with during the contract execution stage of a project, and throughout any subsequent arbitration proceedings, in order to ensure that any arbitration award issued is valid and enforceable.
And here comes our part in Legal in solving any Construction & Engineering Dispute, we believe that clients are entitled to counsel who are expert in the law of the jurisdiction in which they practice and who are familiar with all relevant statutory provisions and jurisprudence. Because we are a bi-lingual practice, we are able to keep fully up to date with the latest developments in construction law and dispute resolution procedure in general; we are also able to identify Arabic language jurisprudence, relevant to specific matters, which may not be available in translation; to review Arabic language documentation; and to take witness statements in Arabic when necessary.
We believe that our bi-lingual capacity is of particular benefit to clients in the context of the resolution of any Legal Construction & Engineering Dispute in the UAE and the wider MENA region.
Read more: Litigation – Arbitration – Criminal