A specialist construction court for Dubai
Since their establishment in 2004, the Dubai International Financial Centre (“DIFC”) Courts have provided a judicial framework for resolving civil and commercial disputes and claims arising out of the DIFC and its operations. In March 2017, the DIFC Courts issued a consultation into the proposed establishment of a specialist technology and construction division (TCD) in the UAE. On 15 August 2017, it was announced that the TCD will be introduced in October of this year.
The Draft rule 56 provided as part of the March 2017 consultation said that a claim may be brought as a TCD Claim if it involves issues or questions which are technically complex. It gave a number of examples including:
- building, engineering or other construction disputes;
- claims by and against engineers, architects and/or surveyors relating to the services they provide; claims arising out of fires; and
- challenges to decisions of arbitrators in construction and engineering disputes.
The law and procedure of the DIFC Courts are based on the common law tradition and there are obvious parallels with the Technology and Construction Court (“TCC”) in England & Wales. In common with the TCC, the draft TCD Rules also provide for early case management conferences to set out procedures and timetables to resolve the issues in dispute as efficiently as possible. Proceedings in the DIFC Courts are usually in English and another feature of the DIFC Courts is the publication of judgments on the court website. This will mean that, as cases are heard, the TCD will establish its own body of construction and engineering case law. Whilst this will take time to develop, this should prove to be of considerable value to all those involved in construction disputes. Understanding how the TCD is likely to resolve a matter should promote dispute resolution and avoidance.
"As cases are heard, the TCD will establish its own body of construction and engineering case law. Whilst this will take time to develop, this should prove to be of considerable value to all those involved in construction disputes. Understanding how the TCD is likely to resolve a matter should promote dispute resolution and avoidance."
This introduction of a dedicated technology and construction court potentially provides a significant new forum for the resolution of disputes in the Middle East. We say “potentially” because parties will only be attracted to the TCD if the Judges who hear the cases have the necessary specialist knowledge and experience themselves. One reason for choosing arbitration is the ability to have a say over the identity and skill set of those appointed to resolve the dispute in question. Further, there will need to be enough of the specialist judges to ensure that the TCD is able to operate with due speed and efficiency. Whilst to some extent this is a question of supply and demand, the track record of the DIFC Courts suggests that both these issues will be successfully addressed.
Arbitration remains the preferred choice for the resolution of construction disputes in the MENA region. It will be interesting to see whether parties adopt the TCD in their contracts as the forum for the resolution of any disputes. It may be a slow process. The draft rules provide for the transfer of cases within the DIFC Courts, so the first cases may be ones from the existing court lists. Alternatively, it may be that - at least to begin with - the TCD finds itself dealing with challenges to decisions of arbitrators in construction and engineering disputes. This may all help the TCD to establish a reputation which encourages parties to look to the TCD as an alternative dispute resolution forum.
This is certainly something we will be keeping a careful eye on.