Dissertations for Construction Law in Dispute Resolution (CLDR)

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Utilizing Blockchain Technology in the UAE’s Construction Industry: Contract Administration and Management of Disputes and Claims
(The British University in Dubai (BUiD), 2023-12) ALJEWAIR, TAMIM SALEH; Dr Christina Lienen
One of the main challenges faced by economies around the world is digital transformation. However, due to the large number of participants in single construction projects, the centralisation of authority, poor contract administration, lack of database and system interoperability, the construction industry has been unable to digitise, leading to delays and cost overruns, and disputes. The dissertation aims to explore and investigate the benefits of utilizing blockchain technology in construction contract administration, claim, and dispute management processes in depth, to decrease the number of disputes and claims, and to improve the efficiency, and overall productivity of the UAE construction industry. Further, the dissertation provides common causes of construction claims, and disputes, opportunities in implementation, functionalities of blockchain and smart contracts, adoption and adaptation guide, while observing other industries’ applications. Blockchain distributed structure provides a transparent, secure, and a private communication channel, thus establishing trust among contracting parties. Decentralisation supports document management, claim submissions, and automation of payments. Self-execution and enforcement of blockchain based smart contracts ensures compliance with contract provisions, claim process, procedure, and dispute mechanism. Through utilizing blockchain technology, most processes can be streamlined and automated, thereby ensuring compliance and reducing causes of dispute. In order to develop the dissertation, and answer the research questions, a qualitative research approach is employed, associated with literature from different sources. A thematic analysis strategy has been used combined with deductive reasoning of secondary data to validate or reject the hypothesis.
The Effect of Pre-Arbitration Procedural Requirements on Admissibility and Jurisdiction Under UAE Law
(The British University in Dubai (BUiD), 2023-11) ATEEM, SHADY SHERIF; Professor Aymen Masadah
This dissertation examines the frequency of pre-arbitration procedural mechanisms used in construction contracts in the UAE and their influence on the effectiveness of the arbitration process. Although these methods are designed to improve efficiency, they frequently result in more conflicts, resulting in a complicated legal environment that lacks a definitive structure under UAE law. Legal practitioners and courts have utilised various approaches to interpret these clauses, leading to ambiguity. This research examines a recent significant judgement from the Dubai Court of Cassation which focuses on differentiating between admissibility and jurisdiction, in line with established international practises. This study proposes implementing contractual modifications to enhance the clarity of drafting, ensuring that parties strictly adhere to procedural requirements, and introducing legal provisions to regulate admissibility and jurisdiction. Furthermore, it is important to take into account the rules of institutional arbitration and the authority given to tribunals to suspend proceedings. Potential areas for further research involve investigating the relevant legislation regarding pre-arbitration prerequisites and analysing how they compare to laws governing the validity of arbitration agreements. The paper proposes further examination of the persistence of pre-arbitration circumstances after the termination of a contract, specifically focusing on the distinctiveness of the arbitration agreement. In essence, improving and simplifying pre-arbitration procedures can promote peaceful resolution of conflicts in accordance with international and UAE court practises
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.
Nullification of Arbitral Award Under UAE Law Dissertation
(The British University in Dubai (BUiD), 2023-01) ELSANOSI, AHMED; Professor Omar Al Hayari
The UAE Arbitration community has welcomed the new UAE Arbitration Law enacted on 2018 which adds popularity to UAE as an internationally recognised environment for Arbitration as parties normally elect to opt out from Courts and choose Arbitration to resolve their disputes mainly due to is fast decisions and procedures’ flexibility compared to Court litigations, however for the Arbitral Awards to be executable, it must be enforced by recourse to the Courts who has the power to affirm, annul or grant leave for correction of Arbitral Awards based on certain grounds set out by the Law and the Courts interpretation thereto. There is little researches on the subject following the enactment, but was not supported and enriched with Court cases dealing with the new Law and its effect mainly on nullification and enforcement of the Arbitral Awards the issue that this study, which concentrate on all nullifications’ triggers during all the stages of the Arbitration process from signing the Arbitration agreement until obtaining the Arbitral Awards, aims to analyse it and how UAE Courts are dealing with nullification of Awards based on the New Law to help the Arbitration community understand and avoid any trivial or major mistakes that probably will lead to annulment of their Arbitral awards by analysing all possible triggers that may lead to the same and the methods to avoid them, all through excessive Court cases review and analysis for the past (4) years since the New Law came into force. As of date of writing this paper, the Courts have shown great appetite on avoidance of nullification of the Arbitral Awards and settled important principles on their interpretation and decisions worth considering, albeit with some unfavourable judgments to the Arbitration Community as it the case with any other litigation matters.
The Effects of Integrating Technologies in The Construction Dispute Resolution
(The British University in Dubai (BUiD), 2024-03) RASHID, ABDULLAH AHMED; Dr Abba Kolo
This research paper is about the effects be it positive or negative of technologies being implemented in the construction dispute resolution field. The technologies of interest are Online dispute resolution, Artificial intelligence, and blockchain technology, with the use of primary, secondary, and empirical research it was found that these technologies have their benefits and challenges some waying in more with benefits more than challenges and the opposite is true. ODR provided accessibility to proceedings and document circulation while imposing a challenge for cost saving. AI inflected a benefit of providing precise decision making while imposing a challenge of the lack of human touch in verdicts. Blockchain provided the benefit of having the records immune to tampering and alteration with a challenge of integrating such complex technology. These technologies provide improvement to such complex field nonetheless continues development and implementation is required to fill in the gaps and reduce the challenges it imposes.
Termination of Construction Contracts Under the UAE Law and FIDIC
(The British University in Dubai (BUiD), 2023-11) KADRI, SARAH; Professor Aymen Masadeh
Construction is among the industries, if not the top industry, that play the most key role in the economy of the United Arab Emirates (UAE). Like all other industries, Construction faced recently exceptional critical challenges due to the pandemic which caused an extensive inability, or at least a substantial hardship, for innumerable parties to comply with their contractual obligations. Eventually, this resulted in an increase in the number of delays in the projects’ deliveries and, in numerous cases, resulted in the dissolution of the contracts. Consequently, the importance of the concept of contracts termination gained considerable attention compared to the pre-pandemic era, as the relevant clauses and legal provisions were the lifeline equipment to some parties, while they were the calamity to many others. For this purpose, this paper focuses on the law provisions related to the termination of contracts under UAE Civil Code, and their application by the UAE courts. The paper also reviews the relevant provisions in Fidic Red Book (1987, 1999 and 2017) and highlights their applicability under UAE law. The paper concludes that a contract can be lawfully terminated under both the UAE law and FIDIC Red Book (1987, 1999 and 2017) under specific conditions and subject to certain requirements. Therefore, it is essential for the parties to be cautious and to be fully aware of the law, the contractual rights, obligations, and procedures, while drafting the contract and prior to taking such a termination decision and declaring it officially to the other party. This dissertation provides a comprehensive overview of the concept of the termination of contracts under the UAE law and under FIDIC (Red Book).
The Significance of AI in Mitigating Risk-Based Disputes in Construction Contracts
(The British University in Dubai (BUiD), 2023-11) RAMADAN, MOHAMED NABIL; Dr Derar Al-Daboubi
This study addresses the legal perspective concerning the effectiveness of utilizing Artificial Intelligence (AI) tools in remedying potential project risks that may affect project progress and the final product quality, with a specific focus on the legal framework of the contractual relationship between the Employer and the Contractors. The study also explores the legal aspects of implementing Artificial Intelligence (AI) in the Construction industry, specifically its use in identifying potential risks during the early stages of a project. Besides, the current study will adopt the doctrinal approach, whereby the author is going to apply a qualitative method to answer the research questions of this study. Therefore, the study will apply authoritative analysis for relevant primary and secondary sources. Accordingly, the study will examine the UAE’s relevant legal texts, FIDIC Red Book rules and relevant case law. Furthermore, the light will be quickly shed on the impact of utilizing AI tools in dealing with conflicts either during the Contracting period or even when they became disputes through the integration of these tools within the framework of traditional Alternative Dispute Resolution (ADR) mechanisms. This study will conclude with some inferences and suggestions that can assist in mitigating potential project risks encountered while recruiting Artificial Intelligence (AI) technology in the context of construction contracts. The importance of this study lies in the fact that the previous studies that have discussed the legal framework of the liability of the contractor have not addressed it in the context of AI technology.
Overview on the Judicial Application of the UAE Arbitration Law
(The British University in Dubai (BUiD), 2023-08) LI, HONGTAO; Professor Omar Alhyari
The almost 12-year long-awaited UAE Arbitration Law, being its historical first stand-alone arbitration law which repealed and replaced articles 203 to 218 of the UAE Civil Procedures Law, was enacted in the Official Gazette on 15 May 2018. The UAE Arbitration Law inaugurates a new chapter in the UAE's arbitration legislation, giving it is the first stand-alone arbitration law in its history. This thesis, under such a background, discusses and analyzes, the key new features of the UAE Arbitration Law comparing to the old arbitration law stipulated in the UAE Civil Procedures Law; how the new provisions or mechanisms stated in UAE Arbitration Law have been judicially applied, by reviewing certain number of the UAE Courts’ precedents, focusing on some key new provisions such as appointment of arbitrators, arbitration agreed by reference, jurisdictional competence and challenge, interim and precautionary measures, recognition and enforcement, award challenge or nullification etc., to better understand how the true intention and tenet of the UAE Arbitration Law in theory, with a focus on the new provisions or mechanisms stipulated in the UAE Arbitration Law, has been interpreted and implemented in judicial practice, in an effort attempting to provide some guidance and recommendations on practicing of the same and to identify issues arising out of applying the same in the practice so that giving suggestions on how the UAE Arbitration Law may probably be improved and how the legal provisions should be better implemented in practice, with highlights to the legal practitioners in the UAE.
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.
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.
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.
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.
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.
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 .
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.
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.
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.
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.
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.
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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