How to Select An Arbitrator

By DAVID JOHNSTON
WHEN agreeing to a dispute resolution clause in a construction contract, there are a number of matters to consider. Perhaps the most important of these is whether to proceed by way of litigation (before a court) or arbitration (contractual dispute resolution by a tribunal under procedural rules agreed by the parties). [Read more…]

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Implied Terms And Variations In Construction Contracts – Issues Arising From Recent Case Law

By Becky Johnson

Implied terms in construction contracts (or lack of) and instructions to vary works can cause problems for developers carrying out construction works. These issues were considered in two recent cases: Aspect Contracts (Asbestos) Limited v Higgins Construction Plc and MT Højgaard A/S v E.On Climate and Renewables UK Robin Rigg East Ltd.1

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New York Convention: Lack of Jurisdiction Prevents Enforcement in The UAE

By Omar al Shaikh and Adrian Chadwick

The arbitration enforcement proceedings brought by Construction Company International (CCI) against the Ministry of Irrigation of the Government of Sudan (MOI), for whom our firm acted, has now passed through all three tiers of the Dubai Courts. The Dubai Court of Cassation (Case No. 156/2013 Civil Cassation) rejected CCI’s arguments and upheld the judgments of the lower Courts. This means that all three tiers of the Dubai Courts, having considered the applicability of the New York Convention, refused to recognise and enforce two ICC Paris arbitration awards on the ground that under the UAE’s procedural laws the Court had no jurisdiction. This result is likely to be viewed with concern by arbitration practitioners based in Dubai and worldwide. [Read more…]

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Enforcing Arbitration Awards in the UAE

By Hassan Al Hais

The implementation of the New York Convention in the UAE did not expressly displace the enforcement provisions in the Civil Procedure Code. Therefore, parties wanting to enforce an award under the New York Convention must satisfy the requirements of the UAE Civil Code. In practice, enforcing arbitration awards can be a lengthy and unpredictable process. It is common for the UAE courts to require that the foreign award satisfies the rules and procedures of the UAE, and may refuse to enforce it if there is a violation of local laws. One potential difficulty arises in convincing the UAE Court that it did not have jurisdiction to hear the dispute in the first place (irrespective of the arbitration agreement between the parties). The UAE Court normally has a fairly broad jurisdiction over disputes including, for example, claims connected to monies or assets within the UAE and claims arising out of contracts executed or to be performed in the UAE, as well as claims over foreigners resident in the UAE. Therefore, it is difficult to prove that the UAE Court did not have jurisdiction over the order. [Read more…]

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CMGuide Partners with The Big 5

CMGuide has partnered with the largest and longest running international building and construction show in Dubai! The Big 5 has 60,000+ participants and will take over Dubai World Trade Center this November! [Read more…]

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Challenging An Arbitration Award in the UAE

By Hassan Al Hais

It is common for the unsuccessful party to argue against the enforcement of an arbitration award on the ground that the arbitration was invalid, because the person who signed the contract was not authorized to agree an arbitration clause. In this case the losing party will file an annulment case. However, it may be possible to argue that the parties have accepted the tribunal’s jurisdiction, or have waived any right to object, or have lost that right by not objecting at the first opportunity.

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CPC 2013 – The new CIOB contract for use on complex projects

By Jeremy Glover

In April 2013, the Chartered Institute of Building (CIOB) published a contract for use with complex projects (known as the Complex Projects Contract or CPC 2013). Speaking about the contract, one of its authors, Keith Pickavance, boldly said:

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Limitations on liability in the UAE – beware!

By Jatinder Garcha

Many standard form contracts contain provisions limiting the overall liability of the contractor, upon which a contractor unfamiliar with UAE law may place mistaken reliance. The FIDIC Red Book for instance, which is widely used throughout the Middle East region, contains a number of limitations on liability including at clause 17.6, which states:

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Saudi Arabia Modernizes Arbitration Laws

by Saud Al-Ammari and Tim Martin

The Kingdom of Saudi Arabia changed its arbitration law earlier in 2012 with the enactment of its New Arbitration Law 1433H (2012G) (the New Arbitration Law). On April 9, 2012, the Council of Ministers approved the New Arbitration Law and a Royal Decree on the law was issued on April 16, 2012. On Friday, June 8, 2012, the law was published in the official gazette (Um Al-Qura). In accordance with Article 58 of the New Arbitration Law, the law came into force after 30 days from the date of its publication, which was July 9, 2012, corresponding to 19 Sha’baan 1433H. The prior law was the Arbitration Law dated 1403H (1982G) (the Old Arbitration Law). The local business community used the Old Arbitration Law infrequently and multinational companies avoided it because it was seen as difficult and inefficient in resolving business disputes within the country. [Read more…]

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Limitation of liability clauses and consequential loss: Court revisits the approach in ‘Peerless’

The phrase “consequential loss” is very commonly used in exclusion and limitation of liability clauses. Despite its widespread use and a significant amount of case law on the topic, the legal meaning of the phrase in specific contexts is notoriously difficult to pin down. Moreover, there is a clear difference in the approaches applied by Australian and UK courts to interpreting the phrase. A recent decision of the Supreme Court of Western Australia has gone back to basics and, in doing so, has broken new ground on how to interpret the phrase. [Read more…]

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