Enforceability of DAB's Decision in the Context of the Construction Contract: A Comparison between English & UAE Law
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Date
2023-11
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The British University in Dubai (BUiD)
Abstract
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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Keywords
construction disputes, alternative dispute resolution methods, adjudication, dispute boards, dispute adjudication board, DAB decisions, enforcement of DAB decisions, construction contracts, statutory adjudication, contractual adjudication