This article considers what makes construction arbitration in the Middle East different. It looks at how construction disputes arise and how they are dealt with in arbitration throughout the world, and then focuses on how the industry is different in the Middle East, and particularly the Gulf region, and how the practice of arbitrating such disputes in the region differs from elsewhere. Despite some obvious and well publicised difficulties with arbitration in the Middle East, the problems are mainly ones of efficiency, rather than fairness, and arbitration remains the preferred means of dispute resolution for the construction industry in the region.
{"title":"The Unique World of Construction Arbitration: A Middle East Perspective","authors":"Richard Harding QC","doi":"10.54648/bcdr2017002","DOIUrl":"https://doi.org/10.54648/bcdr2017002","url":null,"abstract":"This article considers what makes construction arbitration in the Middle East different. It looks at how construction disputes arise and how they are dealt with in arbitration throughout the world, and then focuses on how the industry is different in the Middle East, and particularly the Gulf region, and how the practice of arbitrating such disputes in the region differs from elsewhere. Despite some obvious and well publicised difficulties with arbitration in the Middle East, the problems are mainly ones of efficiency, rather than fairness, and arbitration remains the preferred means of dispute resolution for the construction industry in the region.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"36 4","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132604348","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article sets out factors arbitrators should consider when determining the validity of construction claims in cases where the contractor has chosen not to address breaches and losses from the perspective of their individual causes and effects, but to submit what is commonly referred to as a global claim. The authors consider case law from the United Kingdom and discuss relevant considerations against the backdrop of civil codes and general customs in the Gulf region.
{"title":"Tackling Global Construction Claims in the Middle East","authors":"Victor P. Leginsky, Aarta Alkarimi","doi":"10.54648/bcdr2017011","DOIUrl":"https://doi.org/10.54648/bcdr2017011","url":null,"abstract":"This article sets out factors arbitrators should consider when determining the validity of construction claims in cases where the contractor has chosen not to address breaches and losses from the perspective of their individual causes and effects, but to submit what is commonly referred to as a global claim. The authors consider case law from the United Kingdom and discuss relevant considerations against the backdrop of civil codes and general customs in the Gulf region.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124137142","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Liquidated damages in construction contracts represent a fixed-rate mechanism to compensate employers for delays by contractors.Traditionally, common law courts do not interfere with the amount of liquidated damages due. By contrast, the local courts of certain civil law jurisdictions in the Middle East are empowered to adjust those liquidated damages, which raises important questions about how and when those courts will exercise that power and whether international arbitral tribunals will do the same.
{"title":"Liquidated Damages for Delay in the Middle East: Not Etched in Stone","authors":"Joseph Chedrawe","doi":"10.54648/bcdr2017007","DOIUrl":"https://doi.org/10.54648/bcdr2017007","url":null,"abstract":"Liquidated damages in construction contracts represent a fixed-rate mechanism to compensate employers for delays by contractors.Traditionally, common law courts do not interfere with the amount of liquidated damages due. By contrast, the local courts of certain civil law jurisdictions in the Middle East are empowered to adjust those liquidated damages, which raises important questions about how and when those courts will exercise that power and whether international arbitral tribunals will do the same.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116232517","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines the role culture may play in contract administration and dispute resolution, and considers the implications of using international standard forms of contract in the Middle East.The influence of culture on law has been acknowledged in the criminal field, but not in the contractual field. National culture can influence perceptions of risk, management practices and views on justice. Given that standard forms of contract are used globally across a wide range of cultures, is there a need to tailor them to different national cultures?
{"title":"Construction Arbitration and Standard Forms of Contract in the Middle East: National Culture and Its Impact on Perception and Practice","authors":"Aisha Nadar","doi":"10.54648/bcdr2017005","DOIUrl":"https://doi.org/10.54648/bcdr2017005","url":null,"abstract":"This article examines the role culture may play in contract administration and dispute resolution, and considers the implications of using international standard forms of contract in the Middle East.The influence of culture on law has been acknowledged in the criminal field, but not in the contractual field. National culture can influence perceptions of risk, management practices and views on justice. Given that standard forms of contract are used globally across a wide range of cultures, is there a need to tailor them to different national cultures?","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133918831","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The authors consider whether global claims are permissible in the Middle East. Global claims permit a construction contractor to claim for damages without demonstrating the precise causal link between its contractual counterparty’s conduct and the contractor’s claimed damages. The topic of global claims has been thrust into the spotlight as a result of the English High Court’s decision in ‘Walter Lilly & Company Ltd v. Mackay & Anor’, which reaffirmed and expanded the permissibility of global claims in England. However, despite ‘Walter Lilly’, the scope of global claims in England appears limited. This is similar to the position of US law, which permits total loss claims (the US equivalent of global claims) in rare circumstances and prefers the use of other methodologies to calculate damages. While acknowledging that the position in the Middle East is largely uncertain, the authors argue that the obstacles faced by contractors in raising global claims in England and total loss claims in the United States are not as significant in Egypt and the United Arab Emirates. As a consequence, the authors predict that courts and arbitral tribunals applying Middle Eastern laws should be more receptive to global claims than they otherwise would be when applying English and US law.
作者考虑了全球索赔在中东是否被允许。全球索赔允许建筑承包商索赔损害，而无需证明其合同对手方的行为与承包商索赔的损害之间的确切因果关系。由于英国高等法院在“Walter Lilly & Company Ltd . v. Mackay & Anor”一案中的判决，全球索赔的话题被推到了聚光灯下，该判决重申并扩大了全球索赔在英国的许可范围。然而，尽管有“沃尔特礼来”，英国的全球索赔范围似乎有限。这与美国法律的立场类似，美国法律允许在极少数情况下提出全损索赔(相当于美国的全球索赔)，并倾向于使用其他方法来计算损害赔偿。虽然承认中东地区的情况在很大程度上是不确定的，但作者认为，承包商在英国提出全球索赔和在美国提出全损索赔时所面临的障碍在埃及和阿拉伯联合酋长国并不那么严重。因此，作者预测，与适用英国和美国法律相比，适用中东法律的法院和仲裁法庭应该更容易接受全球索赔。
{"title":"The Law on Global Claims: An Area Ripe for Development in Egypt and the United Arab Emirates","authors":"E. Rankin, Bryan Dayton","doi":"10.54648/bcdr2017010","DOIUrl":"https://doi.org/10.54648/bcdr2017010","url":null,"abstract":"The authors consider whether global claims are permissible in the Middle East. Global claims permit a construction contractor to claim for damages without demonstrating the precise causal link between its contractual counterparty’s conduct and the contractor’s claimed damages. The topic of global claims has been thrust into the spotlight as a result of the English High Court’s decision in ‘Walter Lilly & Company Ltd v. Mackay & Anor’, which reaffirmed and expanded the permissibility of global claims in England. However, despite ‘Walter Lilly’, the scope of global claims in England appears limited. This is similar to the position of US law, which permits total loss claims (the US equivalent of global claims) in rare circumstances and prefers the use of other methodologies to calculate damages. While acknowledging that the position in the Middle East is largely uncertain, the authors argue that the obstacles faced by contractors in raising global claims in England and total loss claims in the United States are not as significant in Egypt and the United Arab Emirates. As a consequence, the authors predict that courts and arbitral tribunals applying Middle Eastern laws should be more receptive to global claims than they otherwise would be when applying English and US law.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115917429","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Parties to construction and infrastructure projects have been at the forefront of developing and/or adopting a range of dispute avoidance and resolution measures: partnering, dispute boards, adjudication, expedited (or ‘fast-track’) arbitration, and mediation. Closer analysis reveals that preferences vary according to region, as does the take-up of such initiatives.This article looks at what methods have worked in the Gulf, and what other techniques might usefully be deployed. Some methods, like partnering and expedited arbitration, may have been advocated previously with mixed results.The article contends that this was not because of some inherent unsuitability, but because the time was not right. The article looks at a new partnering initiative, discusses dispute boards and adjudication, and considers the continued roll-out of expedited procedures by arbitral institutions (including the new ICC Rules, effective as from March 2017).The article explains how innovative and creative dispute resolution techniques might usefully be applied in the context of Gulf mega-projects.
{"title":"Specialist Techniques for Construction Dispute Resolution: How Many Ways Can the Cat Be Skinned?","authors":"Michael Patchett-Joyce","doi":"10.54648/bcdr2017006","DOIUrl":"https://doi.org/10.54648/bcdr2017006","url":null,"abstract":"Parties to construction and infrastructure projects have been at the forefront of developing and/or adopting a range of dispute avoidance and resolution measures: partnering, dispute boards, adjudication, expedited (or ‘fast-track’) arbitration, and mediation. Closer analysis reveals that preferences vary according to region, as does the take-up of such initiatives.This article looks at what methods have worked in the Gulf, and what other techniques might usefully be deployed. Some methods, like partnering and expedited arbitration, may have been advocated previously with mixed results.The article contends that this was not because of some inherent unsuitability, but because the time was not right. The article looks at a new partnering initiative, discusses dispute boards and adjudication, and considers the continued roll-out of expedited procedures by arbitral institutions (including the new ICC Rules, effective as from March 2017).The article explains how innovative and creative dispute resolution techniques might usefully be applied in the context of Gulf mega-projects.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121248840","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Claims brought in construction disputes tend to relate to the recurrent issues of payment, interest, delay, defects, liquidated damages, and rescission of contract.When working in the Middle East, engineers acting as arbitrators and lawyers from the common law system need to be aware of the mandatory rules of the law applicable to the contract.This paper aims to shed light on the legal rules commonly applied to contract breaches in construction arbitrations in the Middle East. Specifically, the paper focuses on the relevant provisions of the laws of Egypt and the United Arab Emirates and explains the main variations between them.
{"title":"Legal Rules Commonly Applied to Contract Breaches in Construction Arbitrations in Egypt and the United Arab Emirates","authors":"A. Waly","doi":"10.54648/bcdr2017009","DOIUrl":"https://doi.org/10.54648/bcdr2017009","url":null,"abstract":"Claims brought in construction disputes tend to relate to the recurrent issues of payment, interest, delay, defects, liquidated damages, and rescission of contract.When working in the Middle East, engineers acting as arbitrators and lawyers from the common law system need to be aware of the mandatory rules of the law applicable to the contract.This paper aims to shed light on the legal rules commonly applied to contract breaches in construction arbitrations in the Middle East. Specifically, the paper focuses on the relevant provisions of the laws of Egypt and the United Arab Emirates and explains the main variations between them.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"255 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124192039","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The severing of diplomatic ties with Qatar and subsequent application of restrictive measures have highlighted the predicament in which parties to a construction contract may find themselves when external factors affect their performance.This article examines the defences available when the performance of pre-existing contractual obligations in the MENA region becomes excessively onerous due to external events, with a special focus on the theory of exceptional circumstances.
{"title":"Resolving Construction Disputes in Times of Crisis: The Theory of Exceptional Circumstances","authors":"Ziad Obeid","doi":"10.54648/bcdr2017013","DOIUrl":"https://doi.org/10.54648/bcdr2017013","url":null,"abstract":"The severing of diplomatic ties with Qatar and subsequent application of restrictive measures have highlighted the predicament in which parties to a construction contract may find themselves when external factors affect their performance.This article examines the defences available when the performance of pre-existing contractual obligations in the MENA region becomes excessively onerous due to external events, with a special focus on the theory of exceptional circumstances.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116888726","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Truncated Tribunals","authors":"I. Selim, Georges Ghali","doi":"10.54648/bcdr2017021","DOIUrl":"https://doi.org/10.54648/bcdr2017021","url":null,"abstract":"","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133371566","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The issue of dual nationals in investment treaty arbitration goes beyond self-identification and involves questions of treaty interpretation and, in some cases, principles developed within the framework of diplomatic protection. This article provides an overview of jurisprudence concerning “who” a person really is in international investment law. It addresses the complex interplay between national and international law with regard to nationality, as well as the contrasting treatment of natural persons and corporate bodies as investors.
{"title":"And you are . . .?Dual Nationals in Investment Treaty Arbitration","authors":"H. Haeri, D. Walker","doi":"10.54648/bcdr2016024","DOIUrl":"https://doi.org/10.54648/bcdr2016024","url":null,"abstract":"The issue of dual nationals in investment treaty arbitration goes beyond self-identification and involves questions of treaty interpretation and, in some cases, principles developed within the framework of diplomatic protection. This article provides an overview of jurisprudence concerning “who” a person really is in international investment law. It addresses the complex interplay between national and international law with regard to nationality, as well as the contrasting treatment of natural persons and corporate bodies as investors.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"289 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115956071","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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