Dissertations for Construction Law in Dispute Resolution (CLDR)

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The Application of the Doctrines of Severability and Competence- Competence in the UAE
(The British University in Dubai (BUiD), 2014-07) ELBANA, MOHIEELDIN MOSAAD
Arbitration is considered one of the best options available to parties for resolving their disputes. Nowadays, courts strongly encourage arbitration, and thus, has been largely adopted locally and internationally. With that, this dissertation aims to determine whether, or not, the UAE arbitration practice in respect of the arbitral jurisdiction aligns with the international practice. In addition, this dissertation will also examine the importance and implications of Competence-Competence and severability doctrines under the UAE law. In-depth research has been done to answer these issues. This includes, without limitation, going through a series of reviews and gathering information from different sources such as journals, books, court judgments, awards, and articles. We discovered that there is an urgent need to introduce new global concepts within the effective legislation, including the competence-competence and severability concepts, to tackle the issue of who decides the jurisdiction of the tribunal and make sure that the arbitration agreement is not ineffective. This finding suggests that, in the UAE, these principles need to be applied in all cases except when there is a solid challenge to the basis of the arbitration such as when there are valid allegations that the party did not agree on the arbitration agreement. Therefore, we recommend forming an independent body, which can be in the form of a judicial committee (be it an independent circuit in local courts or linked with the technical office of the Minister of Justice or the Chairman of the court (the “Committee”)) to deal with the issues that negatively affect the continuation of the arbitral proceedings on summary basis. The role of this Committee shall be to facilitate the determination of cases and to support the parties’ autonomy. If the Committee finds a major reason that prevents the arbitral proceedings, as if the arbitration agreement was never formed or the dispute is not arbitrable, the case shall forthwith be referred to the competent court for determination, otherwise the matter shall be referred to the tribunal to continue the arbitral proceedings.
Arbitrators Appointment: Process, Challenges and Remedies
(The British University in Dubai (BUiD), 2021-04) ALKETBI, HAMAD ABDULLA RASHED
This Dissertation objective is to bring more understanding on the mechanism of arbitrator’s appointment process whether by the institutions or by ad-hoc arbitration, shed more light on parties given powers to effect arbitrator’s appointment, investigating the challenges facing the process. This Dissertation also shed more light on the roles of the parties, legislation and arbitrators if the parties fail to agree on an appointed arbitrator, due to disagreement or defective arbitration agreement/clause or challenge the arbitrator’s appointment or jurisdiction. This Dissertation will focus only on two legal jurisdictions and their arbitration institutions and legal framework. The first which is the United Arab Emirates Law & the English Law (England and Wales). It will cover the United Arab Emirates Arbitration Law of 2016 and the older provisions on Arbitration in the UAE Civil Procedure 1992 and the English Arbitration Act of 1996. For institutions I will focus on t arbitration institutions in the UK and UAE.
Are U.A.E. seated Arbitral Tribunals vested with adequate powers to grant Provisional Measures within the context of arbitration?
(The British University in Dubai (BUiD), 2013-05) Aburuf, Osman Alhassan
This research aims at finding the extent of the powers of UAE seated arbitrators in granting provisional relief within arbitration context before and during arbitration proceedings and have an overall examination of the current legal framework available for arbitral interim measures in UAE. in particular who is empowered to grant arbitral interim measures, be it before or after composition of the tribunal in an ad hoc, institutional or court ordered arbitration seated in UAE under DIAC & DIFC / LCIA as this latter regime provides a common law system in a civil law jurisdiction. I will be looking at foreign arbitration rules and laws in this research in which I will shed a light on the available arbitral interim measures conducted under DIFC / LCIA, under ICC, under AAA, under ICSID, under CIETAC, under LCIA Rules, under English Arbitration Act 1996, under Egyptian Arbitration Act No. 27 of 1994 and under Sudanese Arbitration Act of 2005. Provisional measures aim at protection of status quo, preservation of evidences, and sale of perishable goods and secure subsequent enforcement of awards or judgments. Provisional measures act as holding orders pending final decision of the merits of the dispute by a judicial authority or a tribunal. Most modern jurisdictions stipulate some preconditions for granting provisional measures which include inter alia, urgency, prime facie to establish jurisdiction, likelihood of success on the merits, imminent danger, provision of security and proportionality. The importance of this study stems from the fact that the eventual outcome of an arbitral process will be potentially meaningless and ineffective if there is no well structured interim relief regime to secure the eventual enforcement of the award. Moreover, if the disputants choose arbitration as a means of dispute resolution then an award once it becomes final, it will have res judicata effect and the arbitral tribunal becomes functus officio, so in case of lack of provisional measures, the award creditor will be left remediless.
A Comparative study of DAB and Arbitration as methods of resolving Construction Disputes
(The British University in Dubai (BUiD), 2023-01) AL KHAWAJA, DANA JAMAL
This dissertation’s purpose is to briefly introduce reasons for construction field disputes and to discuss the various DR methods applicable to resolve them, and their advantages and disadvantages. It then proceeds to elaborate on two of these methods, namely arbitration and dispute adjudication boards and take a closer look at two important factors considered when a person decides to approach DR, which are time and cost for resolving disputes through them. The doctrinal nature of this study allows comparison between the two methods using information collected by credited researchers. It is intended to highlight the overlooked benefits of DAB, and encourage its application in the UAE, since it is supported by FIDIC only and not by statute. It is concluded that while the cost of international arbitration may be 15% of a project’s value and may take years to resolve, DAB takes less time. Although time limits increase efficiency relative to arbitration, the ICC rules set time limits for the tribunal’s formation and for submission of rejoinders, but not for the issuance of an award. DIAC rules however set a three-month limit that can be extended to five, from the date of transfer of the case from DIAC to the tribunal .
“DO FIDIC RED BOOK 1999 AMENDED CONTRACTS IN THE UAE FAVOR THE EMPLOYER OVER THE CONTRACTOR AND THE CONTRACTOR OVER THE SUBCONTRACTOR AND PROVIDE AN UNREASONABLE RISK, WHICH IS SUPPORTED BY THE CIVIL LAW IN UNITED ARAB EMIRATES COMPARED TO THE COMMON LAW OF THE UNITED KINGDOM?”
(The British University in Dubai (BUiD), 2018-09) Mohebali, Farzad
This dissertation looks at the amended FIDIC 1999 red book contract in the United Arab Emirates and see if the amended FIDIC Red book favours the Employer over the Contractor or the Contractor over the Subcontractor, which provides unreasonable risk to the Contractor or the Subcontractor, and whether the amended FIDIC red book contract is supported by the Civil Law in the United Arab Emirates and the Common Law in the United Kingdom. The dissertation briefly looks into the FIDIC 2017 Red book, however as the FIDIC 2017 red book is not used in the Middle East including the United Arab Emirates, the dissertation compared heavily on the FIDIC 1999 red book. The findings of this dissertation are that even though the amended version of FIDIC 1999 red book and FIDIC 2017 red book provides the Employer and Contractor a upper hand and an unfair and unreasonable risk to the Contractor and to the Subcontractor. The common law in the United Kingdom and the Civil Law in the United Arab Emirates both have introduced laws and legislations to try and provide the Contractor and Subcontractor from ensuring that the Employer and the Contractor meets their main performance obligation of making payments to the Contractor and Subcontractor and provides the right for the Contractor and Subcontractor to remedy if the Employer or Contractor doesn’t meet their main performance obligation of payment.
The Effect of Noncompliance with the Contractual Time Limits for Resorting to Arbitration
(The British University in Dubai (BUiD), 2019-11) Abdelwahab, Bahaaeldin
Disputes may arise from any contractual relationship, and it is the duty of the legislator to create a suitable legal framework to ensure that such disputes are resolved in a fair and effective manner. Nowadays, most international and domestic disputes are resolved using arbitration instead of the traditional judicial system, which forced many jurisdictions to adopt laws and acts to administrate the arbitrations thereby. Opting to arbitration as a final recourse to resolve disputes is an irreversible choice, where the contracting parties are expecting that the state laws or acts will respect their agreement by enforcing its end result, arbitral awards, and facilitating its formation. The UAE has adopted a new Arbitration Law in 2018 in an endeavour to promote the UAE as the regional arbitration hub, wherein a significant enhancement has been made to the old arbitration laws. Despite the fact that the UAE law has gone a long distance to keep up with the international position on arbitration laws, yet there are matters that need to be improved further. One of these matters is the effect of not abiding with the contractual time-limit to commence arbitration. The UAE laws are unclear in respect of contractual time-limits and the consequences of not following such limits. In addition to that, the UAE courts seem to be reluctant to raise any consequences for not abiding of the time-limits thereof, which is adversely affecting the goal of promoting UAE as an arbitration hub. In pursuit of a better understanding of the UAE position on time limit clauses, the relevant provisions of the law have been analysed in conjunction with legal and judicial interpretations; and case studies have been scrutinized in detail. Also, a comparison has been made with other international laws to establish their standing on the subject matter and as a reference for enhancement.
Immunity of Arbitrators
(The British University in Dubai (BUiD), 2021-11) HARED, ABDIQANI MOHAMED
The losing party in any arbitration case is likely to attempt to settle its account with the arbitrator who issued a ruling against him by resorting to the courts and filing cases that make the arbitrator vulnerable to arbitrary prosecutions, the matter that will lead to the reluctance of many individuals with integrity and knowledge to be reluctant to enter into the arbitration club. In addition, arbitration, which is considered to be one of the most successful alternative mechanism to resolve disputes is likely to become weak in terms of solving global trade problems. The purpose of this research is to study the extent to which the arbitrator is entitled to protection from prosecution and what is the optimal immunity that he should enjoy. According to the results of the research, the researcher concluded the need to provide protection for the arbitrators so that they can carry out their duties and obligations towards the parties to the conflict without any fear of prosecution by the parties who are not satisfied with the judgments issued against them, but at the same time, this immunity should not be a gateway used by the arbitrator in his favor by committing gross errors, willful negligence, or taking bribes to rule in favor of one party against another. The researcher also provides recommendations that the issue of arbitrator’s immunity should be clarified further in the arbitral laws of countries and relevant institutions.
Provisional Sums and Nominated Subcontracts in Construction Law; A Comparative Analysis of the Rights and Obligations of the Employer Under UAE and Common Laws
(The British University in Dubai (BUiD), 2016-11) Elton, Neil
Provisional sums are included within construction contracts to allow the employer, at its discretion, to select and nominate its choice of subcontractor to the contractor. Thereafter, the contractor remains generally liable for the performance of the nominated subcontractor. Provisional sums and nomination has caused significant legal issues under English common law, leading to its demise, whilst in the UAE employers continue to utilize the method extensively. A comparison of the legal treatment suggests that the UAE has a robust law which allocates liability of a nominated subcontractor’s defective performance to the contractor, however legal decisions under English common law have ruled contrary to this, holding the employer liable for the nominated subcontractor’s default or repudiation or preventing recourse against the nominated subcontractor. The importance of an unambiguous and comprehensive contract defining a clear mechanism of administration and remedies is of critical importance otherwise the court or arbitration may be left to decide the parties’ intentions. Despite this, widely used contracts such as FIDIC are surprisingly silent regarding rights or obligations following objection or repudiation of a nominated subcontractor. There are other issues such as the employer’s rights and obligations regarding direct payment to a nominated subcontractor in the event of the contractor’s insolvency, design liabilities under a provisional sum, delays caused by the nominated subcontractor, duties to properly disclose information and prevent misrepresentation in the nomination, unjust enrichment, pre-nomination discussions and objection to nomination by the contractor. The treatment may vary depending on the relevant legal jurisdiction. This dissertation seeks to carry out a comparative analysis of the employer’s rights and obligations in relation to these and other issues when using provisional sums and nomination under UAE and common law.
The Role of Arbitrator in Arbitration Process
(The British University in Dubai (BUiD), 2022-11) EL SAYED, MINA
The judiciary is considered one of the pillars of the state’s balance, as it achieves justice among members of society through the correct application of the laws and legislation in force in the state, and due to the spread of arbitration as an alternative dispute resolution method, I have chosen in this thesis to shed the light on the role of the arbitrator in the arbitration process and the extent to which this role affects the success of the arbitration process as the arbitrator plays the role of the judge in the arbitration process. And since there is a great demand for arbitration now as an alternative method for resolving disputes because of its benefits that have been widely accepted by companies and individuals, because it is easier and faster than the judicial authority, in addition to the principle of complete confidentiality during arbitration procedures and the lower costs of arbitration compared to the judicial authority. Therefore, light was shed on the procedures followed by the parties in the event of resorting to arbitration in accordance with international arbitration laws and the laws of the United Arab Emirates, starting with choosing the correct conditions for the arbitration clauses, passing through the selection of the arbitrator or arbitration committee, the text of the arbitration agreement, and the criteria for the final agreement to ensure access to the issuance of a valid final arbitral award is binding on both parties. The focus was on what are the behaviors that the arbitrator must follow during his consideration of the arbitration case. This thesis included a discussion of the various jurisprudential opinions regarding the erroneous decisions and procedures committed by the arbitrators in the various types of arbitration, which led to the nullification of the arbitral award, the analysis of legal texts that approved the role of the arbitrator, explicitly or implicitly, and the presentation of the relevant judicial decisions.
THE ROLE OF NATIONAL COURTS IN ARBITRATION: AN EXAMINATION OF THE ATTITUDE OF UGANDAN COURTS
(The British University in Dubai (BUiD), 2019-08) OCEN, MILTON FRED
This study examined the attitude of Ugandan courts towards arbitration in order to facilitate efficient resolution of construction disputes which are better resolved by arbitration. The investigation was done through a case-study research design involving a desk review of existing literature, legislation and the cases decided by the courts in Uganda in order to establish how the Ugandan judiciary has facilitated the growth of the process. The study notes that the courts in Uganda are generally supportive of the arbitration process as exemplified by their tendency to recognize a valid arbitration agreement and unwillingness to examine evidence that is before an arbitral tribunal among others. It however notes some challenges that need to be addressed including: ambiguity in some parts of the substantive law on arbitration, knowledge gaps among lawyers on how the arbitration process operates, as well as a shut down on arbitration due to an abeyance in the powers of Centre for Arbitration and Dispute Resolution (CADER) to appoint arbitrators following a High Court ruling against the Executive Director’s exercise of the said powers without a constituted Council. Needless to say, CADER has also been operating with significantly low levels of funding.
A Study on UAE Courts Supervisory Powers in Arbitration on the Grounds of Public Policy Consideration
(The British University in Dubai (BUiD), 2017-09) AL JELANI, MOHAMMED ANWAR
A comprehensive lineup of the problem and how important it is to tackle it: The Court of Cessation may overturn the arbitration award on the basis that the arbitration award conflicts the principal of “public policy. Since the definition of public order is an expanded one, in addition to the absence of a consistent measure of its' elements, all that will make it difficult for the disputing parties to determine whether they should proceed the arbitration path or court’s path, whereas a wrong decision will lead to a waste of time, money and the delay of rights. For these reasons, this dissertation will analyze different UAE Courts decisions, and I will try and mention as many examples as I can for public order to help litigants as well as arbitrators and the courts to base their decisions on the rationale and strong jurisprudence.

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