Leonora Riesenburg.
After the Dispute Review Board (DRB) Foundation and Society of Construction Law (Gulf) met to discuss dispute boards and their function in the local market, many praised the ‘checks and balances’ proffered by the mechanism.
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Uncertainty in the Application of UAE Laws
The UAE legal system is a civil code system based on both Islamic and civil code principles. Any contract subject to UAE law must comply with the UAE Constitution, Federal and local Emirate laws, Islamic Shari’a and custom and practice.
There are challenges in deciding how the law of the UAE will be applied in any particular case. This is due to a number of factors. The UAE legal system is still very much in its infancy, the collision of French – via Egypt and other Middle Eastern countries – civil code principles and Islamic Shari’a principles, the lack of judicial precedent – previous decisions may be useful but do not create any binding or persuasive precedent to the court, and the difficulty of predicting which legal principles and/or custom and practice a judge will apply when reaching a decision. …
Tales of the Unexpected: Where Liability Lurks UnseenRead More »
by Melanie Grimmitt
Reviewing the wealth of commentary on the use of letters of intent in construction contracts, one might speculate that at the time the pyramids were being built some well-intentioned Egyptian lawyer was earnestly hammering out hieroglyphics warning his contemporaries of the potentially dire consequences of commencing construction works without a concluded contract in place. Nevertheless, despite the plentiful guidance cautioning contractors against relying on letters of intent which has been produced by legal professionals in more modern times, a significant proportion of construction projects do, in fact, proceed on the basis of a letter of intent. This practice is particularly common within the UAE and the wider Gulf Region. …
Letters of Intent: Still Crazy After All These Years?Read More »
by Sachin Kerur
A large part of the administration of a construction contract comprises a contractor seeking genuine contractual entitlements for additional time and costs and the determination and award or rejection of those claimed entitlements by the engineer/employer. As a result, contractor’s claims for extensions of time and additional costs are also often the subject of arbitral proceedings and litigation. …
Record what happened, when it happened – the importance of ‘contemporary records’Read More »
by Melanie Grimmitt
One of the most interesting aspects of working in different jurisdictions is seeing how different regions approach the same issues in different ways – both legally and commercially. An example of this in the context of PPP transactions, is the differing approach taken in the UK and the Middle East in respect the inclusion of delay liquidated damages regimes in Project Agreements. …
by Vincent Connor
Volcanoes – we have rather a lot of them in Asia, but even we’ve been obsessing about the infamous Icelandic one, this week. Though 6000 or more miles away from the action, Japanese car manufacturers relying on components from Ireland and Korean mobile phone suppliers ready to send their wireless wares to a waiting world, have been among those frustrated as the volcanic ash cloud has choked airfreight routes. Which got me thinking…not so much about force majeure (I’ll leave that to my holidaying partners examining their insurance documents to seek support for their compensation claims!) but about the options a contracting party faces when the party with whom he’s entered into an agreement has breached a material provision (say, a delivery date): should he accept that party’s repudiation and sue for damages or simply terminate it in accordance with the procedure provided for in the agreement? …
by Sarah Thomas
Answer: when it’s an affirmation. Consider the questions which Shell raised in an appeal case recently decided by the High Court (commented on by Connor in his last post): …
by Joanne Clarke
In a judgment dated February 25, 2009 (Cour de cassation, civ. 3, 25 February 2009, No. P07-20.096), the Court of cassation, the highest court in the French judiciary, confirmed its previous decisions (Cour de cassation, chambre mixte, 30 November 2007, No. 06-14.006; Cour de cassation, 3e civ., 30 January 2008, No. 06-14.641) according to which certain provisions of the French Law on Subcontracting dated December 31, 1975 are mandatory, and as such are to be applied even when French law is not the governing law chosen by the parties to the contract. …
One of the critical but not “headline making” aspects of the downturn in the construction industry is that many subcontractors are having difficulty getting paid on projects and meeting their own debts as they fall due.
The subcontractor is usually dependent on the contractor being paid under the main contract. One often sees a “pay when paid” clause in subcontract which essentially means that the subcontractor will not be paid by the contractor until the contractor has been paid for the subcontractor’s work by the employer. This necessarily involves even in the best case scenario a longer credit period to the contractor than the contractor in turn gives to the employer. The subcontractor generally has little input in to the certification process by the employer’s advisor prior to him or her approving an invoice in favour of the contractor. …
By Christopher R. Seppala
I propose briefly to discuss five topics in the three new Books for major works (the new Construction Contract, the Plant Contract and the EPC Contract), as follows:
(1) Contractor’s risk and “Employer’s Risks”,
(2) Indemnities,
(3) Limitation of Liability,
(4) The New Force Majeure Clause, and
(5) Grounds and Procedure for Termination of the Contract by the Employer and the Contractor. …
FIDIC’S FOUR NEW STANDARD FORMS OF CONTRACT: Risks, Force Majeure and TerminationRead More »
We are in the midst of a world-wide recession. So, in times when contractors’ liquidity and therefore their very survival is more at risk than usual, and employers are more than usually jittery about the ability of contractors to complete works, a recent decision on a claim to enforce an advance payment guarantee and a performance bonds is of particular interest to construction law practitioners. …
I have just returned from a family holiday in India, our first visit together although I am a frequent business traveller there. Apart from the beauty and vibrancy of the country and its people, what struck me most was that when travelling on business one is so very removed from the real life of the people of the country. I spend a large part of my time working as an international legal counsel to Indian law firms and Indian corporates who are at the forefront of the delivery of India’s infrastructure vision, a vision that requires, as just one example, the delivery of 20 kilometres of road every day over the next few years. For the business traveller, whose main transport experience is a journey from hotel to office, the scale of the infrastructure deficit begins to come into focus but as a tourist traveller, it looms extremely large. …
