Projects for Construction Law in Dispute Resoultion

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    Dealing with Late Payments - A Challenge for UAE Small Scale Subcontractors?
    (The British University in Dubai (BUiD), 2015-11) Purayil, Abdulla Poomangalorakath Puthiya
    The small scale subcontractors provide an extremely important service to the construction industry in UAE and they carry out more than 50% of the actual execution of the works at site in major projects as direct subcontractor to the main contractor or as a sub-subcontractor. It has been reported that the small scale subcontractors in UAE are severely affected by the late payment issues. Although several researches were conducted on the late payment issue faced by subcontractors in general, the researches with special focus to small scale subcontractors are very limited in numbers. This research focused on identifying various challenges faced by small scale subcontractors in UAE with respect to the late payment issues, examining the legal and contractual aspects of the late payment issues under various jurisdictions with a particular focus to UAE law and to find out feasible solutions for the late payment issue. The methodologies adopted were questionnaire survey, literature review and face-to-face interviews. The research reveals that dealing with late payment is a challenge for small scale subcontractors in UAE and foremost reason for the late payment is „main contractors wrongfully withholding due payments‟. The research further shed light in to various provisions, concerning late payment to small scale subcontractors, available in the UAE law as well as other jurisdictions and found that UAE law is lacking several provisions which are available in other jurisdictions that protect small scale subcontractors. To conclude, the late payment issue faced by the small scale subcontractors is an issue to be dealt with great concern as it has severe economic as well as social impacts. Further, it is recommended to adopt a quick and affordable statutory adjudication and a protection to subcontractors‟ payment through the project escrow account in UAE as a solution to eliminate this issue.
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    Nominated Subcontractors and the Principle of Privity under the UAE and English Laws
    (The British University in Dubai (BUiD), 2015-11) Ayasrah, Mohammad Ali
    The privity principle is one of the primary intact rules of contract among the international jurisdictions. Applying the same however on the parties having no direct binding relationship but they are connected by a contractual chain is debatable. As such, in the case what is in the construction contracts where the parties having complex relationships thru the subcontractor to the head contractor to the employer and further to the subsequent owner. In this regard, this paper will demonstrate some circumstances thru which the privity principle is attacked under the UAE civil law and English common law. Thus it brings to the attention whether; and if so up to what extent; the matters of subcontractor’s nomination by the employer, the collateral warranty, the assignment, the tortious liability and lawful liability interact with the privity principle. Further, the paper will through light on the effect of arbitration consolidation agreement in this respect. Whatsoever the case in this context; the court will not try to break the privity principle. Rather, the court will look into this matter from another direction that whether at any circumstances at which the aside parties with no direct contract like the employer and the subcontractor somehow as mentioned above would become having direct binding relationship. Hence, this paper will endorse that despite that the privity principle is a matter of law; it is subject to exposure under some circumstances even such circumstances are stringent to establish a leapfrog from the privity principle. Upon standing on the findings of this paper; the contractual parties are expected to put an eye on the privity principle which could be in favour and burden on either party at one time. Further, this paper enlightens to whomever a party in a contract that it can retain a contractual device in his favour to break the privity principle upon its convenient. In addition from the other side, such party is advised to fortify its position against any leapfrog to the privity principle shall such leapfrog brings unwanted liability beyond its original contract by using a limitation of liability clause.
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    (The British University in Dubai (BUiD), 2015-11) Morris, Terence Anthony
    This thesis examines the approach of the parties towards administering the conditions of contract with regards to contractual delay and ascertain as to why construction projects in the UAE are notoriously late in project delivery and why so many projects find themselves in dispute. Throughout the course of my studies the forms of contract available to the Employers and their consultants were studied and found to be quite extensive and the dispute mechanisms presented by them were found to be fair to both parties to the contract. What research establishing was that the most common forms of contract were the FIDIC 1987 and FIDIC 1999 “Red Book” contracts. Considering the dispute mechanisms within these contracts, why is it that the parties find themselves so often engaged in formal dispute and particularly arbitration. The research was conducted through an on-line survey of one hundred construction professionals for which there were seventy three respondents. The questions ranged from but were not limited to: 1. The causes of delay most commonly experienced, 2. The party most commonly found to be the cause of the delay, 3. The most common form of contract utilized in the UAE, 4. How the conditions of contract were applied, and 5. What were the contractual outcomes in the form of dispute resolution applied? The data provided supported my own experience whilst working on projects in the UAE for the last ten years that the choice of contract made was superficial, as the majority of contracts were bespoke and heavily weighted towards the Employer. Despite this what was evident was that no matter the form of contract, the Employer and his consultants constantly failed in the administration of the contracts leading to formal dispute. The UAE is developing its structure towards having a modern system of dispute resolution that would encourage in particular the likes of Mediation and International Arbitration. What is clearly displayed by the data received from this research is the Employers willingness to allow disputes to evolve and carry on for protracted periods of time with detriment to the project and the relationship of the parties. Would the industry and the parties to the contract be better advised or encouraged to administer the conditions of contract and address the disputes at the time of its occurrence as with the use of a Dispute Adjudication Board, or Mediation rather than the costly exercise of Arbitration?
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    (The British University in Dubai (BUiD), 2015-11) JOSEPH, BINU
    Concurrent delays in construction are complex and often matter of dispute in construction industry. The law is unclear in this issue and the parties generally use concurrency as an excuse to escape from their responsibility to compensate the other party. In different cases related to concurrency the judges have provided rulings based on which different principles have developed on concurrency. This indicates that there cannot be a single general principle to deal with concurrency. In this research project noted English cases related to concurrency and the rulings of the judges have been reviewed. The “Society of Construction Law (SCL)” and “Association for the Advancement of Cost Engineering International (AACEI)” have developed guidelines to deal with concurrency. A legal analysis of SCL and AACEI recommendations has been carried out with the case laws in order to arrive at best possible way to deal with a concurrency situation. As the construction projects are generally large in size and lasts for a longer period of time the delay events and the critical path of the project changes over the period of time. Therefore it is important to establish the varying dominant cause of delay and understand the relevance of each event during the span of the project duration. It is rare that two concurrent delay events overlap exactly without a dominant cause. In such an instance where a dominant cause cannot be established, it is appropriate to apply the principle of apportionment to arrive at a fair entitlement for the parties. Even though apportionment principle is generally accepted as the best recommended solution for a true concurrency it is often difficult to evaluate entitlement under apportionment. This research project by means of a case study establishes that “Window Analysis” with “Time Impact Analysis (TIA)” provides best solution to apportion the entitlements under concurrency. The results of interviews with experts on this subject have been discussed at end of this document which provides better understanding of concurrency and evaluation of entitlements and liabilities of the parties.
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    ADR’s Effectiveness in UAE, Is it worth it to take the Time?
    (The British University in Dubai (BUiD), 2015-10) Zeidan, Alaa Husni
    The paper aims to discuss the most successful internationally recognized ADR's (Alternative Dispute Resolution) and the obstacles and difficulties facing the implementation the same ADR's in UAE. The paper also aims to present the relevant legal framework in the United Arab Emirates effecting the implementation of all proposed ADR's considering Cultural ,social and legal factors .Also the study will factor the existing legislation and laws along with some draft laws such as the new draft arbitration law. Finally the paper will recommend the most appropriate choice based on statistics and views gathered through a questioner addressing the subjected combined with recommendations to modify existing legislation to help improve the likelihood of a successful implementation of the selected ADR.