Dissertations for Construction Law in Dispute Resolution (CLDR)

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The Adaptability of Adjudication in the UAE from the Perspective of Islamic Shariaa and Civil law
(The British University in Dubai (BUiD), 2015-03) SALEM, HANI LOTFI
A number of jurisdictions have introduced a new mechanism to resolve construction disputes cheaply, expediently and efficiently. This new mechanism should consider the privity of construction contracts and without prejudice to the public policy. Adjudication fulfils all the criteria and was introduced because of the inefficiency of the traditional dispute resolution mechanisms and to secure cash flow in the construction industry. An adjudicator is a neutral third party who determines the dispute and has enough experience, impartiality and independence. The adjudicator is nominated by pre-agreement in the contract or by a nominating body. Considering the success of adjudication in other jurisdictions it is thus desirable to introduce adjudication in the UAE. However, how this system conflicts with the fundamental principles of Sharia and civil law has to be examined. Islamic Sharia law is considered as the main source of the law of UAE. It is important therefore to determine the potential legal obstacles that might be encountered by the introduction of adjudication in the UAE. This study also investigates the prospects of introducing a construction court in Dubai that is compatible with Sharia law and civil law. Such a court would co-operate with the Bar association, Law Society and general authority of Islamic affairs and endowment for training and registering of adjudicators. With such a court it is likely that the acceptability of adjudicator's decision may also be achieved given the status of the court as an independent judiciary.
Adopting FIDIC 2017 Red Book Extension of Time Procedure for Construction Projects in UAE
(The British University in Dubai (BUiD), 2018-07) BDAIWI, YAMAN MUSTFA
It has been concluded by several studies that EOT claims are among the most disputed issues in the construction industry due to lack, misunderstanding, or wrong application of relevant contract provisions. In the case of escalation to litigation path, the UAE CTC will be the framework upon which the ruling will be based. This will also be another potential area of further dispute as the concept and mechanism of EOT claim evaluation is not clearly identified in the CTC and thus it will be depending mainly on the expert report. This problem becomes more visible when dealing with other EOT issues such as the most suitable impact analysis method, total float ownership or concurrent delay. Therefore, construction professionals usually resort to using standard form of contracts such as FIDIC to overcome these shortcomings. Even though the EOT procedure is more elaborated in the FIDIC 1999 red book in which it provides a better EOT procedure than when relying on simply drafted bespoke contract, it was concluded in the dissertation that similar issues such as impact analysis method, total float ownership and concurrent delay are still be disputed under the this standard form of contract. The study then evaluated the same procedure under FIDIC 2017 red book to confirm whether it is a better alternative than the previous version. It was concluded that in the new FIDIC edition, issues of impact analysis method and total float ownership were dealt with more clearly than the previous version. The same was concluded for the case of concurrency expect that (1) there is an apparent conflict between Sub-Clause 8.5 and Sub-Clause 17.2, and (2) the construction professionals participated in the study survey were not in agreement with the method proposed in Sub-Clause 8.5. The participants in the survey were also in favor of the new agreement procedure prior to make any determination as proposed by FIDIC new edition. Accordingly, the study concluded that though the FIDIC 2017 red book seems to be providing a better EOT procedure, a precaution must be taken when drafting the particular conditions in regards to the concurrent delay and impact analysis method. In addition, particular conditions should not be drafted in a way that might appear to be in conflict to the UAE CTC, as in the case of adhesion clauses, given the fact that the judge has the authority of nullifying it if the dispute was not resolved amicably.
Annulment of Arbitral Awards under the Federal UAE Arbitration Law
(The British University in Dubai (BUiD), 2019-01) AL ANI, ABDULLAH RIYADH RABEE
Federal Law number 6 of 2018 is the New UAE Arbitration law – it is composed of 61 articles that control the practice of arbitration in the UAE. The UAE Federal Arbitration Law sets out the grounds for annulment of arbitral awards under article 53 thereof. The grounds set out under article 53 – as well as other articles related to annulment – is analyzed to understand how the UAE courts might determine a challenge for the annulment of an arbitral award. This analysis is supplemented national and international court judgements dealing with arbitrations and arbitral awards. The grounds for annulment of an arbitral award are broken down in this paper into the following categories: invalidity in the arbitration agreement, constitution of the arbitral tribunal, conduct of the arbitral process, the form and content of an arbitral award, and for matters of arbitrability and public policy.
The Application of Alternative Dispute Resolutions in the United Arab Emirates Government Construction Contracts in Light of the Current Applicable Law
(The British University in Dubai (BUiD), 2016-11) AL NIMR, HAMID ABDELLATIF AMIN
The Dissertation aims to investigate the current structure of government construction contracts in the UAE, specifically relevant to alternative dispute resolution mechanisms adopted within these contracts. Also to investigate the current applicable laws and the restrictions imposed by those laws on government contracts, along with possible required modifications to those laws in order to allow for internationally recognized Alternative Dispute Resolutions to be adopted and function within the UAE legal Framework.
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.
The Applications Of The Variation Clauses Of The FIDIC Red Book 1987 And 1999: Analytical And Empirical Study Under the UAE Law
(The British University in Dubai (BUiD), 2014-05) Al Hin, Saif Al Din
Usually, the variation provisions in standard construction contracts are well drafted in a careful and precise manner. These provisions are built up with accurate and unequivocal wordings which preclude any ambiguity/ uncertainty/ doubt in the interpretations of the variation provision terms. Such steps enhance the efficiency of the variation provisions and participate effectively to minimize or avoid complications/ potential claims/ vigorous disputes. One of the major sources for disputes between the employer and the contractor is the variation claims which are resulted from the interpretations and applications of the variation provisions in the construction industry. The dissertation aims to execute clinical analysis in the variation provisions of the FIDIC Red Book 1999 and compare them to their counterparts under FIDIC Red Book 1987. The research investigates whether the variation provisions of the FIDIC Red Book 1999 represent improvements and provide better efficiency over their counterparts under the FIDIC 87. The hybrid methodology which compromises of survey and interviews with senior experts, in addition, library works are adopted in this research. Furthermore, numerical example is utilized to illustrate the evaluation mechanism under the variations clauses. The results of the research provide that some changes under the variations provisions of FIDIC Red Book 1999 are featured with unique and interesting points which were not existed under the FIDIC 87, but some other changes are highly doubtable and debatable. The consequences of the applications of these provisions are likely to have adverse effects in construction field as detailed in the research. To conclude, this study presents a message to FIDIC draftsmen to take into account the issues which are produced under this research for future revised versions with improved quality of variation provisions. Meanwhile, this research would be of much interest to judges, arbitrators, and lawyers. Also, the contracting parties would benefit from such anatomical interpretations in order to avoid potential contentious in future.
Apportioning subcontractors’ liability for project delays; a consensus approach
(The British University in Dubai (BUiD), 2020-05) Thomas, Manoj
Most construction contracts make use of the “Liquidated Damages” clause for dealing with damages due to delay. As it is difficult and sometimes impractical to evaluate the exact losses accrued due to the late handover of the project, the employer and main contractor pre agree an estimated sum which will be due to the employer for each day of the delay. Although, this satisfactorily addresses the liability issues between the owner and main contractor, a large portion of the works are indeed executed by subcontractors and currently there is no single standard method in use to satisfactorily assess subcontractors’ liability for delay. Unlike in the case of the main contract between the owner and the main contractor, where Liquidated Damages (LD) or a pre estimate of the damages are pre agreed, the use of similar LDs or a component of the same in some form or the other has often led to disputes between the parties. It is quite straight forward when it comes to allocating liability to subcontractors for defects in their work, owing to poor quality of materials and/or workmanship. However, when it comes to attributing contractual liability for delays there is no straight forward method for apportioning the liabilities to the subcontractors, without carrying the risk of either over burdening the subcontractor with unreasonable damages or causing under-recovery by the main contractor due to limits that are imposed on the LDs recoverable under the subcontracts. Main contracts mostly contain mechanisms for allocating the liability for delays, which commonly manifests in the form of “Liquidated Damages” (LD) provisions of the contract, normally a pre-estimate of the employer’s loss for each day of the delay. Although. Main contractors are keen on transferring this risk to their subcontractors for delay caused by the subcontractors, transferring this risk to the subcontractors is not always straight forward and is met with considerable resistance from the subcontractors. The extent to which such transfer is possible will depends upon the criticality of the subcontracted work and the bargaining power of the particular subcontractor. Main contractors sometimes run a significant risk of losing out on a major portion of their contract price to LDs for delays by subcontractors, due to the problem of not being able to recover entire LDs from their subcontractors. Various methods for allocating subcontractors’ liability for delays are in practice. This study touches on the subject of delay claims in general and investigates the complexities of apportioning delay damages within subcontracts. It endeavors to find out the different methods that are actually used in practice within subcontracts in the UAE, the frequency of use of each identified method and to what extent is their selection influenced by the attributes of the subcontractors and/or criticality of the subcontracted works. A survey was conducted to discover the methods that are actually used, their frequency, and whether it is possible to relate the different approaches to the attributes of subcontractors. The most commonly used method was for the subcontractors’ liability to be based on a certain proportion of the main contract LDs. Interestingly, this is neither the method stipulated in standard subcontracts, nor is it the one preferred by subcontractors. Moreover, this method puts the main contractors in considerable risks of under-recovery and liable for claims from other subcontractors. This method and indeed all other methods that were discovered, seems to be the result of a compromise between the parties, the selection of which may have a bearing on the parties relative bargaining power.
Arbitral Awards
(The British University in Dubai (BUiD), 2022-11) DAWOD, YAZAN GEORGE FARID
The Objective of this dissertation is to provide further understanding of arbitral awards in general, to analyze when and why such awards are rendered and the possible consequences of rendering such awards, this study will also assist in avoidance of pitfalls by providing actual previous cases and court judgments, it will also provide guidance on matters to be considered prior issuance of the different categories of awards such as awards’ enforceability and annulment under the New York Convention of 1958 (NYC), United Arab Emirates Arbitration Law and the view of the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration of 1985. In this Dissertation I have followed the doctrinal research mythology and found out that the Arbitrator task to issue an arbitral award of any type shall be carefully analyzed, whether it is a partial award or a settlement award or others, a considerable effort shall be put to examine thoroughly case-by-case parameters including but not limited to the well of the parties, the seat law and case precedent.
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.
Breach of Due Process as a Ground for Non-Recognition and Non-Enforcement of Foreign Arbitral Award Under the New York Convention
(The British University in Dubai (BUiD), 2023-05) BOUHEMADI, TALEB BOUHAMADY TALEB; Dr Abba Kolo
Various arbitrators and legal scholars worldwide have repeatedly used the term “due process” either during their legal practice or in efforts to help their clients obtain justice. Most attorneys regard It as established accounts of legal procedures based on a system that adheres to the legal knowledge, enhancing and protecting the individuals' rights. However, its context in the New York Convention award was different. Despite its failure to appear in the report that was made effective in June 1959, it's obvious to note that the Convention's top objective was to promote the importance of acknowledging foreign arbitrations and using them effectively to settle disputes in a way that each part reaps a mutual benefit. Also, the need to make the foreign Arbitral award globally recognized since it steered for standard legislation would promote fairness during the court or arbitration processes. However, even after the agreement to start enforcing the Convention's report, the Foreign Arbitral Award has yet to be fully recognized internationally. The dissertation will analyze and discuss the reasons for refusing to recognize and implement a foreign arbitral award under the New York Convention, as well as how it is applied by different jurisdictions, with a focus on due process, in terms of its concept, the consequences of its breach, how the courts interpret it and how the parties bring it before the competent court, and finally the conclusion and recommendation.
"Building Information Modeling (BIM)” Implementation in Construction project and its effects in dispute avoidance and resolution
(The British University in Dubai (BUiD), 2018-05) ALGHAZALI, WESAM M J
BIM implementation in Construction project and its effects in dispute avoidance and Resolution is the topic of this study. In this dissertation, the effect of implementation on BIM associated with the disputes, claims, and litigation, along with the required changes for the standard form of contract and legal framework will be discussed. Therefore, it can be stated that this research will be significant for the policy makers and the builders of the UAE. This research has highlighted the implementation of BIM for the purpose of dispute avoidance. Moreover, the modification in the standard form of contracts and in the legal systems in the process of BIM adoption has also been clearly discussed in this study. It is recommended to the construction lawyers to consider the applicable regulation, laws and relate them with the BIM in order to address and define the challenges associated with the BIM and also identify how these challenges can be handled. The clauses related to confidentiality of the design or the other information which the construction team members reveal must be considered as this information are sensitive commercially and the non-disclosure agreements or separate confidentiality can also be included in the laws related to BIM.
Challenge and Replacement of Arbitrators balancing fairness with Arbitral Integrity
(The British University in Dubai (BUiD), 2016-08) Muchemwa, Faith
Arbitrators are appointed once there is a dispute to be settled, when the parties to the dispute had agreed in writing to have their disputes settled out of court by an arbitral tribunal. They are handpicked by the parties to the dispute, or if the parties agree otherwise a competent court will do the appointing of arbitrators. Since arbitrators are human beings just like the parties they will solve their dispute, there might be some relationships which are not allowed by the rules of arbitration. Those relationships might be contradicting with the core principles of arbitration such as independence and impartiality. Independence and impartiality are some of the requirements of an arbitrator besides educational qualifications. Before being appointed an arbitrator is informed of the intention of the party that want to appoint him or her for arbitration so that enough time is given to the arbitrator to investigate all potential conflicts that can lead to an arbitral challenge. Realising that there are no potential conflicts of interests the arbitrator is then free to accept appointment, but if there are real potential conflicts they have to be disclosed at the beginning of the process or better still reject the appointment if the conflicts are of great importance to the arbitration. Relationships with financial benefits, family relations, just to mention a few of some of the non-waivable relationships which according to arbitration rules parties are not allowed to waive their rights. Automatically given such relationships, the arbitrator will be removed from the arbitral tribunal; the removal of a once appointed arbitrator simply means that a vacant in the tribunal has been created. There are different national arbitration laws in different countries so as such some of the vacancy has to be filled before the process can continue while others say it depends with the number of the remaining arbitrators. Those who consider the number of remaining arbitrator also consider the stage at which the process was when the challenge was raised, if it was at an advanced stage they will simply allow the remaining arbitrators to issue an award. It’s only difficult when the challenged arbitrator was a sole arbitrator to the case which means they will be forced to replace such an arbitrator. Challenged arbitrators are replaced following the same procedure which was used to appoint the removed one. Though its allowed to challenge and replace arbitrators, procedures besides time limit are supposed to be followed, at the same time balancing fairness and arbitral integrity.
Challenging International Arbitration Awards in UAE Courts on Public Policy Ground
(The British University in Dubai (BUiD), 2016-06) Aljasmi, Mohamed Abdullah
The Arbitration has become a very attractive tool for foreign investors in the UAE and most of it international in nature. Judge typically prefers to apply the national law that he is familiar with on the enforceability of an arbitration award. The Public Policy is one of the major bases for the arbitration award non-enforcement. Which can be used unfairly by the national judges to stop the execution of the foreign award, claiming it is contrary to the public policy The dissertation will evaluate and discuss the U.A.E. position among other nations on the public policy issues. By scrutinizing the ground for non-recognition of the arbitration award, non-arbitrability, the national law, and concept of public policy, the concept of public policy in international arbitration, the Shari’a law and concept of public policy and finally conclusion and recommendation.
A Comparative Analysis between the Application of Liquidated Damages Under English Law and UAE Law
(The British University in Dubai (BUiD), 2022-09) ALAWADHI, MARWA
Delay is one of the most common breaches in the construction field, and, over the years, construction professionals have come accustomed to remedy this breach through the application of liquidated damages. This dissertation studies the concept of liquidated damages under two different legal systems: the English Common Law and the UAE Civil Law. The research methodology adopted is analytically comparative focusing on the practical applicability of the concept within each legal system where the findings are highly based on legal cases from both legislative systems. Other concepts that directly affect the application of liquidated damages (such as: Time for Completion, Extension of Time, Act of Prevention, and Sectional Completion) are also studied thoroughly in this dissertation in a way that identifies the contractual link between the term in study and liquidated damages, as well as analyses the basis of these contractual links. Both systems agree on the essence of liquidated damages being an agreed pre-estimate of the damage that the employer could potentially suffer from due to the contractor’s delay; and so, both systems will not allow the application of liquidated damages if the courts find out that the sum applied is intended to penalize the contractor rather than compensate the employer for his loss. While the English Law is clear on the non-requirement of proving the loss suffered in order to apply liquidated damages, the UAE Law takes the same position only with public contracts. For private contracts, the UAE Courts have repeatedly required for the loss to actually occur, the contract’s default to be present, and the contractor’s default must be the cause of the provided loss. In general, both legislations also agree on the application of liquidated damages on the main contractor when the delay is due to a nominated subcontractor’s default. On a different note, if the liquidated damages were found by the English courts to be so extravagant that it imposes a penalty on the contractor, the courts will nullify the clause and suffice with only rendering it inoperable. The English courts have refrained from modifying the parties’ contracts with reference to the principle of Autonomy. However, as the UAE law gives the courts the power to change contracts and the judges, though not often, will use it if necessary. This research also goes briefly into the means of estimating the liquidated damages amount, its recovery, and ways of avoiding its application.
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 .
Comparison Grounds for Construction Contracts Termination under UAE Law and FIDIC Standard Contracts
(The British University in Dubai (BUiD), 2018-07) ALBAHAR, ISMAIL ABDULLA
Termination rights in relation to a contract are significant as a practical way of applying pressure on other party in the contract. However, exercising the rights of termination ought to be approached using extreme caution. International Federation of Consulting Engineers (FIDIC) is a global body tasked with developing rules and regulations that ought to be put into consideration in the process of engaging in construction contracts. Thus, this body provides special guidelines on the conditions that parties follow while engaging in construction contracts. It also provides regulations for the grounds for construction contracts termination. On the other hand, the United Arab Emirates has its own specific provisions as it relates to terminating construction contracts. The provisions of United Arab Emirates are enacted from statutes and the civil code of this nation. As a consequence, there are various variations in the utilization of the grounds for the termination of construction contracts. Similarities also exist in relation to the application of the construction contract termination in tandem to these forenamed laws. However, there is laxity in the application of the provisions for the grounds on the termination of construction contracts. In this case, the UAE has to ensure that it enhances fairness in the application of the grounds for the termination of construction contracts. It is necessary to explore the comparisons between the UAE law and FIDIC Standard Contracts by looking at both contractual laws to establish the grounds on which they appear to be similar so that the context of their application is related and the standpoint of the disparities in their applicability. There is also the need for reviewing the conditions related to the termination of the contract based on the assertions by the laws of the United Arab Emirates and the FIDIC terms connected to the effective termination of construction contracts.
Comparison of Treatment of Contractual Remedies under FIDIC 1999 Red and Yellow Books and UAE Contracts of Muqāwala
(The British University in Dubai (BUiD), 2017-12) YOUSSEF, HOSSAM ELSHAHAT AZIZ MOHAMED
When a person enters into a contract with another, both contracting parties are obliged, by contract and by law, to fulfill their respective obligations in accordance with that contract. Either party may, however, fail to carry out, not be able to or decide not to, perform any or all of its contractual obligations, hence it is considered that contract is breached by the defaulting party. The questions then arise: what are the respective obligations of the contracting parties, both under contract and at law? What forms of remedies are available to the aggrieved party to obtain redress or relief? This study first introduces briefly, the core contractual obligations of the employer and the contractor against each other under FIDIC forms of contract as found in the FIDIC Red and Yellow Books on the one hand, and the UAE Civil Law, in particular the Muqāwala provisions, on the other. Thereafter it goes on to the main focus of the research, namely the nature of the contractual remedies available to an aggrieved party where there has been a breach of contract. In this research, various remedies are examined within the UAE Civil Law, as the governing law related to construction contracts , and the FIDIC Suite of Contracts, as the most common standard form suite of engineering and construction contracts used for construction projects in the UAE and internationally. The primary purpose of the study is to assist employers, contractors, engineers, lawyers, international financing organizations and stakeholders in construction projects, using FIDIC forms of contract subject to the UAE Civil Law as the applicable law, to better understand the courses of action available to a contracting party when the contractual obligations of the other party are not complied with. Since most of the legal systems of the Arab Middle Eastern countries are founded upon Civil Law principles, it is envisaged that this research would support effective and efficient contract administration of construction projects within the region.
Construction Contracts in Oil and Gas Projects
(The British University in Dubai (BUiD), 2016-04) Abdo, Waleed
This research is an attempt to discuss construction contracts in oil and gas projects. It is focused on several types of construction contracts that are used in oil and gas industry. It outlines the different phases of an oil and gas project starting from concept, FEED and ending at EPC phase. The research discusses the FIDIC Silver Book which is used for EPC projects that are known as turnkey projects. Every project is experiencing risks of different levels. These risks need to be identified and managed to reduce their effect. Selecting the right contracting method helps in limiting risks the project might experience. Although UAE does not have a dedicated law for construction industry, it supports the freedom of contract principle. This means a bespoke contract, including a FIDIC contract, can be used by the contracting parties as long as its terms and conditions do not conflict with any of UAE mandatory rules. The change management is addressed in terms of variations and extension of time. Reasons causing variations and / or affecting the project schedule are addressed in this research along with the responsible party of these change orders. Moreover, the research discusses the risk allocation based on FIDIC Silver Book and highlights whether all risks are really shifted to the construction Contractor or some of them remain with the Employer. The end of the research discusses the dispute resolution mechanism adopted in FIDIC Silver Book and the mechanism adopted within UAE.
Construction Delays and Concurrent Delays
(The British University in Dubai (BUiD), 2018-03) EL GEZERY, AHMED SAID
This Dissertation explores all issues about construction delays, its definitions, causes and impact. Delay is considered as one of the fundamental issues that impinge projects due to its negative impact not only on time of delivery but also due to its associated ramifications, additional cost and losses. Its causes are spanned between the Contractor, Employer, third parties and project conditions. Concurrent delays are considered as one of the law notoriously problematical areas and most complicated & controversial kind of delay disputes. This is due to its unique/complex nature and the fact that there is no one standard and agreed coherent definition or interpretation of concurrent delay. In Author’s opinion, the term ‘concurrent delays’ must have a wider all-inclusive definition to cover all delay situations attributed to both parties that have an effect on time for completion. The Author herein proposed various options for definition of concurrent delays, which its selection depends on how both parties agreed to deal with concurrency, along with proposed contractual bespoke amendments to reflect the same. This Dissertation identified and analysed the basis and rules governing the determination of EOT in cases of concurrency under various civil and common law jurisdictions along with court’s relevant approach. It is concluded that Civil Law countries (such as USA, Scotland, Canada and Australia) preferred approach for concurrency is Apportionment. Similarly, UAE Civil Code provisions tend to support Apportionment as driven by Shariah, good faith, fairness and common sense principles. However, there is lack of reported court cases addressing concurrency in UAE, and UAE Civil Code does not have express articles that deal with concurrent delays nor it recognises concurrent delays on any organised basis. The Author submits that UAE courts can learn from both Scottish and United State Courts, with respect to application of detailed CPM delay analysis and application of Dominant Cause if applicable, “time-but-no-money” approach or Apportionment (preferably Apportionment of Time). And, further recommended the establishment of a UAE dedicated Technology and Construction Court Division that will definitely allow for more efficient resolution of construction industry complex disputes.

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