Dissertations for Construction Law in Dispute Resolution (CLDR)

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    The Digitalization of the UAE Construction Industry and its Impact on Dispute Resolution
    (The British University in Dubai (BUiD), 2023-11) RAJU, REJITHA MOHAN; Dr Christina Lienen
    Disputes are an unavoidable aspect of the construction sector, despite employing various mechanisms for dispute avoidance and resolution. These conflicts consume a significant portion of stakeholders' time, effort and resources. This is primarily due to the construction industry's dependence on conventional record-keeping and process methods. This dissertation focuses on outlining dispute resolution methodologies – with a focus on alternative dispute resolution - that prevail in UAE Architecture, Engineering and Construction (AEC) industry and how the latter can be improved by digitalizing of standard working practices in the industry and the dispute resolution process. The target is to bring in picture the opportunities and challenges posed by the digitalization of the AEC. The AEC industry has lagged in digitization compared to other sectors. However, given the advent of new technologies and its integration into dispute prevention and resolution processes in AEC has introduced a new area of digital engineering, extending beyond design. Tools like Building Information Modelling (BIM), Digital Twin (DT), and Smart Contracts (SC) are among the most promising of the vast information technology tools that are available to facilitate fair risk distribution, enhance transparency, efficiency, and foster collaboration. Nevertheless, it is essential to emphasize that these tools should not supplant any human involvement in the project; rather, they should augment human efficiency in conflict prevention and dispute resolution. Digitalization of AEC industry has the potential to revolutionize the real estate sector, but harnessing its benefits necessitates a transformative shift within the industry itself. To unlock the full potential of AEC digitalization, professionals must adapt to its capabilities and integrate them into their operations. To that end, this dissertation makes a number of recommendations for companies and policy-makers to foster a culture of efficiency through innovation. Embracing this technological evolution is essential for the UAE construction industry and individual companies to stay competitive and to meet the evolving demands of the modern AEC industry landscape.
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    Jurisdiction and Admissibility Under UAE Arbitration Law
    (The British University in Dubai (BUiD), 2023-11) MUSAED, REHAM; Professor Aymen Masadeh
    This dissertation undertakes an in-depth examination of the grounds for challenging the jurisdiction of arbitral tribunals in commercial disputes under UAE law. It begins by exploring the distinction between challenges to the jurisdiction of the arbitral tribunal and challenges to the admissibility of referring a dispute to arbitration. A key focus of the study is to analyze each specific ground for challenging jurisdiction as outlined under Article 53.1 of the UAE Federal Arbitration Law. This includes a thorough evaluation of challenges related to the scope and validity of arbitration agreements and parties' competence and capacity to arbitrate disputes. The dissertation also assesses available remedies when a party denies the tribunal's jurisdiction over a dispute. It examines how UAE courts approach jurisdictional objections raised against arbitral awards and whether the principle of kompetenz-kompetenz is recognized. The study further analyzes how issues about an arbitration agreement's existence, applicability, and limits are determined under the legal framework administering international commercial arbitration in the UAE. An important objective of the dissertation is to offer nuanced legal insights into navigating complex jurisdictional issues that commonly arise in arbitrations seated in the UAE. It aims to delineate challenges to an arbitral tribunal's jurisdiction from other objections related to referring disputes to arbitration. The study clarifies the grounds specified under Article 53.1 of the Federal Arbitration Law for challenging the award issued by the arbitral tribunal based on jurisdictional arguments. It evaluates each jurisdictional ground's practical applications and legal implications through analysis of relevant UAE court rulings and alignment with international arbitration standards and principles. Overall, through a comprehensive examination of jurisdiction challenges under UAE law, the dissertation seeks to enhance understanding of arbitration jurisdiction within the complex legal landscape governing international commercial disputes in the United Arab Emirates. It aims to benefit legal practitioners, policymakers, and businesses by elucidating jurisdictional nuances that commonly underlie arbitration proceedings and awards in the UAE.
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    Enforceability of DAB's Decision in the Context of the Construction Contract: A Comparison between English & UAE Law
    (The British University in Dubai (BUiD), 2023-11) SUKAR, EYAD; Dr Derar Al Daboubi
    The construction industry holds significant economic importance for countries, with each construction project being unique in terms of factors like time, cost, quality, and risk allocation, which are fundamental aspects of construction contracts. Complex disputes often arise due to factors such as the scale of the project, unclear contract terms, imbalanced risk distribution, scope changes, involvement of multiple parties, and inconsistent interpretations. Traditional litigation, given its rigidity, has gradually given way to Alternative Dispute Resolution (ADR) methods, known for their flexibility and cost-effectiveness. Among these ADR options, the Dispute Adjudication Board (DAB) stands out as a highly impactful mechanism. Comprising one or three impartial experts with technical expertise related to the project, DABs are appointed to actively prevent formal disputes and provide well-informed decisions on referred disputes during a project's lifecycle. Various jurisdictions have introduced mechanisms to enforce DAB decisions, with some relying on their own judicial systems and public policy as ultimate benchmarks for enforcement. For example, the United Kingdom, as a common law jurisdiction, implemented the Housing Grants, Construction, and Regeneration Act of 1996 (the "Construction Act") to regulate the enforcement of DAB decisions. In contrast, the UAE, a civil law country, has not introduced DAB through local legislation, relying on the UAE Civil Code and other relevant statutes, to govern the enforcement of DAB decisions. This dissertation's main objective is to examine the legal framework governing the enforcement of DAB decisions under English and UAE law. Employing a doctrinal approach, the study aims to identify similarities and differences in the enforceability of DAB decisions in both jurisdictions and highlight the challenges associated with enforcing DAB decisions under UAE law. Consequently, the research will propose recommendations to enhance the regulation of DAB decision enforcement in the UAE, where FIDIC 1999, a widely used standard construction contract that supports DAB, is prevalent. Establishing a robust and efficient enforcement mechanism will unlock the full potential of adjudication, a highly effective alternative dispute resolution method already proven successful in other jurisdictions. The first chapter provides an overview of the study's background, rationale, and objectives. Subsequently, the second chapter delves into the concept of construction contracts and the mechanisms for resolving disputes within this context. Chapter three explores the role and responsibilities of DABs in construction contracts, while chapter four examines the core aspects and methods of enforcing DAB decisions under English law, the FIDIC 1999 Red Book, and UAE law. Finally, chapter five concludes the study by presenting recommendations for best practices aimed at improving the effectiveness of DAB decision enforcement. This research will serve as a valuable resource for construction professionals, legal practitioners, and policymakers with an interest in conflict resolution within the construction industry.
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    The Role of Experts in Construction Disputes
    (2023-11) Haj Saleh, Osaid; Alhyari, Omar
    This dissertation explores the pivotal role of technical experts in the resolution of construction disputes, with a specific focus on the United Arab Emirates. Construction disputes are inherently complex, often involving complicated technical details and significant financial implications. As such, experts in the construction industry assume a critical role in providing impartial, specialized, and authoritative opinions to assist judges and arbitral tribunals in arriving at informed decisions. This study comprehensively examines the qualifications, appointment processes, obligations, and responsibilities of experts in both on-shore litigation and arbitration proceedings. Additionally, it scrutinizes the methodologies that experts employ in the investigation, the content of their reports, and the experts’ questioning process. Furthermore, it draws attention, where appropriate, to the distinctions in the procedures between litigation and arbitration. Of paramount importance, this study sheds light on the procedural irregularities among experts, which can significantly impact the credibility and admissibility of expert witnesses. Therefore, having a comprehensive understanding of the role of experts becomes imperative in a jurisdiction where judges and arbitral tribunals heavily rely on expert opinions to render conclusive and enforceable judgments and arbitral awards in construction disputes.
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    Examining The Efficiency of Arbitration Advantages in the United Arab Emirates in light of the Arbitration Law
    (The British University in Dubai (BUiD), 2023-05) AL-FREIHAT, MOHANNAD JAMAL; Dr Omar Alhyari
    Due to the constant progress of the arbitration rules and the exceptional demand and acceptance of disputants to resort to arbitration, due to its several advantages and due to the issuance of the relatively new arbitration law. It was necessary to conduct this research which aims to assess the adequacy of the benefits of arbitration in the United Arab Emirates, in light of the arbitration Law. The aim of this study is to ascertain the benefits of arbitration and comprehend the regulatory framework implemented by the UAE legislature to enhance its economic and legal leadership position in the region and worldwide, by leveraging the advantages of the arbitral process. The present dissertation has yielded significant findings and conclusions. Specifically, it has been determined that the Arbitration Law has duly acknowledged the latest trends in arbitration and has incorporated various provisions that govern the arbitral proceedings in accordance with the parties' autonomy, confidentiality, timely process, equal and fair process, and enforceable judgments. These provisions had been interrelated with the roles of parties and their agreement, the tribunal selected by the parties, the provisions of the arbitration law, or the competent court.
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    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 .
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    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.
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    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.
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    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.
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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.
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    Invalidity of Arbitration Agreement Impact on Referral to Arbitration and Arbitral Awards
    (The British University in Dubai (BUiD), 2021-12) DWEIK, DINA TAYSEER; Dr Abba Kolo
    Arbitration has become a common route for dispute resolution, particularly in large projects carried out in the Middle East, in which the parties involved may be part of international entities. Most of the standard forms of contracts recommend arbitration in lieu of litigation due to numerous reasons that are mainly attributable to time and expertise. Nonetheless, in recent years the phenomenon of parties making attempts to file cases before the courts became frequently observed in spite of the existence of an Arbitration Agreement in the contract. In this regard, it is strongly advised for contracting parties to have genuine intention to bind by arbitration, by referring their disputes to arbitration rather than recourse to courts or any other dispute resolution mechanism, and by abiding by arbitral awards. The UAE Arbitration Law, the Model Law and the New York Convention were all drafted with a formidable initiative to secure the parties’ intention to arbitrate, by giving effect to an Arbitration Agreement. To elaborate further, giving effect to an Arbitration Agreement can be demonstrated through the referral to arbitration by either dismissing a claim filed before a court or a stay of court proceedings for lack of jurisdiction. In the same context, giving effect to an Arbitration Agreement, in regard to the arbitral awards, can be understood as the recognition and enforcement of arbitral awards by the courts, whether they were domestic or foreign arbitral awards, without any exemptions, except for those referred to in the national law and conventions as compelling reasons to revoke the arbitral award. However, there are limited cases in which a claimant may refer the dispute to courts or contest enforcing an arbitral award and challenge its validity, albeit having agreed on arbitration as a dispute resolution route, for reasons related to the validity of the Arbitration Agreement beside other reasons included in the aforementioned legislations which mainly revolve around adequacy, integrity and jurisdiction. The subject of this study is to highlight the validity of the Arbitration Agreement and how does this impact the referral to arbitration and the recognition & enforcement of arbitral awards.
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    Design Liability in the UAE Construction Industry
    (The British University in Dubai (BUiD), 2022-03) O’REILLY, BRIAN
    This dissertation explores design liability in the UAE construction industry. First and foremost, design liability in the UAE is a matter of contract between the parties to a construction contract, however, the terms and conditions if the contract are also subject to the laws of the UAE. In addition to discussing the current outlook for the UAE construction industry, this dissertation will examine the principles governing the formation and performance of a construction contract and the level of design liability that the parties normally assume. This will be examined in accordance with the laws of the UAE governing contracts. Not only do parties execute construction contracts in accordance with contract law, but the parties are also subject to laws governing delict and the provisions of delict will be examined with respect to the parties’ design liabilities and the risks and remedies that whilst not always provided for under a contract are important considerations. An important facet of the law which is commonly overlooked in contracts in the UAE concerning design liability is decennial liability and this will be examined in detail and the risks, liabilities, and remedies available under the provisions of the law will be discussed. The model form of contract most widely used in the UAE will be reviewed in relation to contract law, liability for delict and decennial liability. The model form of contract will be discussed to determine if the provisions of the law are well considered and if any inconsistencies can be identified.
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    The Effects of Delay in Delivering Public Construction Projects
    (The British University in Dubai (BUiD), 2021-11) ALMONAYYER, KHALED ADEL
    This dissertation attempts to discuss the effects and consequences of delays in delivering public construction projects of government agencies in accordance with the prevailing procurement laws and administrative contracts which differ from private contracts in terms of authority the government entity has to protect and preserve the rights of the public and the taxpayers whom are the real financiers of those projects, in addition to the contractual and legal procedures the government entity undertakes in case of delay to ensure that the rights of the public are preserved and the project agreed completion time is preserved. The dissertation also discusses the different cases and causes of delay in government projects and the extent to which the contract parties are responsible for those delays, the methods of delay analysis to determine responsibility and duration of delay, how the cost of delay is decided and calculated, conditions for applying delay damages, and enforceability of liquidated damages in case of termination. In light of the existence of several legal and judicial systems, the most important of which are the civil law and the common law, differences in the legal actions and consequences of delays in government projects in the Emirate of Dubai, which applies civil law, and the United States, which applies common law are discussed to clarify the differences in the Administrative Contracts in both countries in accordance with the enacted laws and government requirements in force. The significance of this Dissertation arises from the importance to understand the differences between administrative contracts in civil and public law jurisdictions in terms of delay damages legal definitions, legal and contractual consequences of delays, and enforceability of delay damages and their effectiveness and usefulness in achieving the governments’ intended goals in terms of completing public projects within the agreed budget and completion time, and compensating the governments for damages incurred in the event of contractor-caused delays. It is also significant that the effect of delay damages clauses on the attractiveness of government projects is considered and its effect on the pricing of these projects in light of the rights the enacted procurement laws grant the government entity to exercise in order to ensure that the interests of the public are preserved.
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    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.
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    (The British University in Dubai (BUiD), 2021-12) FAYAD, RAMI MOHAMAD
    The overarching purpose of this research is to discourse and contribute to the limited body of research addressing the extraordinary power of the employer to vary according to the UAE laws and FIDIC forms of contracts. The research is inspired by the need to help parties to a construction contract understand the power of the employer and the employer’s representative to vary, and to understand the protection given to the contractor in case there is a variation instruction. Gaining this understanding will go a long way to help reduce the number of disputes, which often slow down constructions thus affecting the industry, which immensely contributes to the economy of the UAE. Apart from interpreting different clauses in the UAE Civil Transaction Code (CTC) and FIDIC forms such as the Red Book, the paper also reviews relevant cases within and without the UAE jurisdiction. The paper concludes that while an employer’s power to vary is indeed extraordinary, it is justified to a large extend. The intention is to ensure that the employer, who might be a novice when it comes to construction and the relevant laws, is able to complete the project regardless of unforeseen circumstances. The paper also asserts that, the contractor is protected from unfair enrichment or exploitation by the employer.
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    Delay in Completion and the Employer's Entitlement for Liquidated Damages under UAE Law and FIDIC Standard form Contracts
    (The British University in Dubai (BUiD), 2021-11) KHRAIS, RAMI ISSA
    The construction field is a complicated system that interfaces all stages of engineering, procurement and assembly. Furthermore, all of these activities interface the legal system (eg regulations, liabilities and entitlements) as bound by contract under the law applicable to the project. In this context, the subject of this master’s dissertation is the phenomenon of delayed project completion, the concise meaning of ‘completion’ alongside the completion types to verify the existence of delays and liquidated damage entitlements for the employer based on the construction project delay under UAE law and International Federation of Consulting Engineers (FIDIC) contracts. Construction contracts usually contain clauses and conditions; such as articles for the compensation method to be applied in the case of disputes based on losses or damages caused by a party’s failure to meet the other party’s obligations. The amount of this loss is considered a lump sum and is agreed upon by all parties during the contracting stage, which is ideally prior to the work in question. The aim of such provisions is to financially protect injured parties from damages and losses. This dissertation examines legislation covering the damage liquidation policies of construction contracts and the mechanisms of applying said compensation of liquidated damages under UAE law and the FIDIC. This research also addresses the burden of proof on the injured party in raising a claim for the liquidated damages and the fairness of the applicable UAE laws, especially concerning covering losses not explicitly mentioned in the contract. The author of this work has examined the details of UAE courts and their power to adjust liquidated damages in such cases. To this end, the author provides recommendations to contracting parties to be followed to avoid such losses and to ensure smooth and perhaps unchallenged claims while obtaining appropriate compensation.
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    The Treatments of Liquidated Damages under the English and the UAE Laws
    (The British University in Dubai (BUiD), 2021-09) MUJAHED, YAZEED
    Undesirable delays in construction projects result in needless costs and precipitate aggravated projects durations. Unfortunately, construction project delays are very common, which affect the objectives of the project, the parties` positions, which may lead to disputes between the parties. These difficulties are frequently dealt with by agreeing to a liquidated damage clause under the contract. Liquidated damages provisions are agreed upon between the parties to guarantee the performances from the parties to their contractual obligations. While it often ensures performance, another benefit is to identify a predetermined monetary sum which are to be paid by the performing party in the event of delays in delivering the works, or possibly specific milestones. While liquidated damages are considered to be supplementary contractual provisions, its application and enforcement are conditioned to its applicability under the contract`s applicable law and the other contractual obligations. This research discusses and compares the limitations to enforce liquidated damages under English and the United Arab Emirates (UAE) laws. Both laws impose limitations on recovering liquidated damages when the provision departs from its compensatory and equity nature. Under English law the court’s position will be either allow or limit the award of the liquidated damages, whereas under UAE law the courts exercise the same discretions and may go further by varying the liquidated damages amount that is agreed between the parties. English and UAE Laws stress the importance of honouring and prioritizing the parties` agreement, provided it contradict no mandatory law provision or the public order. The concept of liquidated damages is addressed differently depending on the legal system of the country. There are a few limitations the majority of countries regardless of this though which include the principle of equity and protecting the interests of the parties. However, the Common Law system is generally strict in limiting the award of any form of penalty clause in a contract due to the potential issues that may occur. On the face of it, it appears that UAE`s courts do not differentiate between a pure penalty and a pure liquidated damages provision. It is safe to assume that the importance in differentiating between the two terms made in Common Law jurisdictions is not shared in the UAE, due to the granted power to the courts under Article 390 of the Civil Code.
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    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.
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    Termination of Construction Contract under UAE Law
    (The British University in Dubai (BUID), 2021-03) Salous, Ameed
    The dissertation aims to examine the legal principles and practices applicable to terminate construction contracts in UAE. This dissertation identified the causes of termination and showed the drastic effect of the termination on the contracting parties beginning from paying the cost of the performed works until paying the loss of profit or loss of opportunity. The UAE showed a significant level of protection on the performance of the contract refusing to accept the terminations as a prime remedy for the breach of contract and keeping it the last resort. Such protection was clear in the control of the court over the fate of the contract. However, many exceptions allow the automatic termination out of the court, such as force majeure events or by agreement of the parties. The termination without causes still uncertain to be enforced by the courts; nevertheless, there are provisions of law that can be used as a vehicle to try to enforce it. Such a type of termination is necessary as there are economic advantages in applying it. Many uncertainties and shortfalls are noticed in UAE law, from the degree of the breach that allows termination, the definition of the force majeure to the fate of the contractual damages upon the contract’s termination. All are matters need to be treated better by the legislator.
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    (The British University in Dubai (BUiD), 2020-10) Abedalaziz, Leen
    This research attempts to discuss selected legal aspects of sub-contracting, and to set out recommendations for parties who are involved in the construction contracts and sub-contracts, regarding the mechanisms of drafting their contracts, specifically, clauses that are subject to cause more disputes, and the clauses related to key factors which affect the contractual relationships between the parties. The research discusses the selection process of sub-contractors, and how this process and selection criteria influence the liability, rights, and obligations of the parties related to both main contracts and sub-contracts. In addition, the research discusses the concept of back to back sub-contracts, and the effects of back to back payments on the construction main contract and sub-contract parties. The recommendations of this research have been concluded, after thoroughly analyzing and studying courts decisions for cases related to each key factor that influences the contractual relationship between parties in the construction industry. The main basis referred throughout this research were the UAE Civil Transaction Code and other UAE legislations, Common Law and UK acts and regulations, and other international laws and practices. In addition, specific consideration has been given to international standard construction contracts such as FIDIC construction contract form Redbook 2017, and FIDIC construction sub-contract form 2011, and other standard contracts such as JCT and NEC. The significance of this research arises from the importance of proper contracts drafting, as the interpretation of the clauses included in a contract, substantially influences the liabilities, obligations, cashflows of a contract parties, and plays a significant role in avoiding disputes that may arise from poor drafting.