Construction Law and Arbitration Guide in the Gulf

This is a common question across the GCC countries. First of all, we need to differentiate between the legal limitation periods and the time-bar clauses. the former are related to periods provided by express legal provisions for rights to claimed in courts. The right holder must claim the right within this period. the period starts to run when the right becomes due. These periods are a matter of public policy that cannot be agreed against. People may not change such periods by agreements. However, a contractual time-bar is totally different. The time-bar clause is classified as condition precedent. That is to say, the contractual right may not become in existence till such a condition is fulfilled. In FIDIC books, time-bar clauses are condition precedents. Back to the question, the employer may allege that the contractor’s right has not come into existence due to non-compliance with time-bar clauses. This applies to extension of time requests. However, if the delay was caused b...

Question: If the employer has its Decennial Liability (DL) insurance and the insurer indemnified him, can the insurer assert a subrogation claim against the builder and the consultants? Can the employer agree to waive subrogation, or to add the builder and consultants as additional insureds under the employer's insurance policy?   My answer: Simply speaking, DL is a public policy matter that cannot be waived by agreement. DL theory is aimed to protect the society more that the employer itself. Employer's agreement with its insurance company to waive subrogation is in effect a waiver of DL which will highly unlikely be allowed in court. The second option , i.e. adding the consultant/contractor as an additional insured, leads to the same consequences. It will prevent subrogation without having to expressly agree on the waiver of subrogation. It may work as it is similar to the case where a contractor/consultant purchases its own DL insurance policy. Basically, there is nothi...

“Professor Aymen Masadeh, head of MSc Construction Law and Dispute Resolution, spoke on engineering arbitration at the UAE Society of Engineers (Dubai Ofiice) on 26th December 2012. The lecture was well attended by practitioners. Professor Masadeh overviewed the several methods of alternative dispute resolutions around the world and discussed the dispute resolution mechanisms under the FIDIC red books 1987 & 1999. He also explained the local court’s supervisory and supportive role in arbitration. Arbitral tribunal increasingly obtains more power and independence. This is due to the increasing confidence in this dispute resolution mechanism. Despite that independence, the need for the court’s support is inevitable. State courts play various roles pre-arbitration, during arbitration proceedings and post arbitration. The presentation discussed most of these roles.” For full presentation, please folow http://www.buid.ac.ae/buid/research-papers.php?id=65