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Review of UAE Law in context of Construction law provisions 28th September 2013
Presented by: R. Venkat, FCIArb, FCMA LLM (Const Law), B.Eng, C.Eng
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Civil
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Construction law
Construction Engineer
Lawyer
Construction lawyer
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PROPOSED WALK-THROUGH
Categories of Law Common law Versus Civil law Middle eastern law What is UAE Civil Code? Does it address all Construction related issues? Is it only based on Sharia Law? Law of Contract; Important provisions
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CATEGORIES OF LAW
Common law Contract law
Civil law
Tort law
Case law
Construction law
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CATEGORIES OF LAW
Legal systems
Civil law Common law
Source of law
Case law Statute
Regulation
Civil law
Applicability
Private law
Criminal law
Public law
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Code Napoleon French Influence Circa 1800 Belgium, Luxembourg, Spain, Louisiana and Quebec
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England, Wales, Ireland, All states of USA (except Louisiana) Canada (except Quebec) and Former colonies of British Empire (India, Pakistan, Malaysia etc.,)
USA is the main receiver and considerable changer of English Common law
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Civil Law and Criminal law Every legal system will have both Civil law and Criminal
law Not to be confused with Civil law legal system Civil law is to settle dispute between two individuals.
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PROPOSED WALK-THROUGH
Categories of Law Common law Versus Civil law Middle eastern law What is UAE Civil Code? Does it address all Construction related issues? Is it only based on Sharia Law? Law of Contract; Important provisions
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of the presence of international law firms (in UAE) with common law roots, many contracts which have been drafted in the UAE appear to have been influenced by common law principles. This has created difficulties in the application of the law to these contracts by the courts of the UAE since judicial authority does not recognize some of the principles or the practices of the common law system
Leading UAE Lawyer Mr. Essam Al Tamimi
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Time at large Prevention principle Fitness for purpose Pre estimated LDs
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4. Judicial procedure
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COMMON LAW
1. Source of law Mainly from case law from previous judgments. Statutes are also referred.
CIVIL LAW
Mostly based Codified legislation. Case law is mostly irrelevant (notable exception French Tort law which is fully based on case law) Codes are concise, state broad principles only
Statutes are detailed with definitions and contain lengthy enumerations of specific applications and exceptions
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COMMON LAW
2. Principle of precedents Judges are subject to doctrine of stare decisis Decisions from Upper Courts must be respected and followed Hierarchical structure
CIVIL LAW
Judges are bound by Code and facts and not on precedents! Court of Cassation judgments are referred for understanding of law
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COMMON LAW
3. Interpretation of Contracts
Respects freedom of Contract Primary focus on the written words in the contract. Parol evidence prevents a party to a written contract from presenting extrinsic evidence that contradicts or adds to the written terms of the contract that appears to be whole.
CIVIL LAW
Interest of fairness (as against freedom of contract) Primary focus on the wider context and intentions of the parties Not limited to literal meaning of the terms. Evidence of negotiation is admissible Mandatory provisions cant be excluded Tribunals have power to rewrite the parties agreement 21
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COMMON LAW
4. Judicial procedure Parties collect evidence and present More reliance on evidence of fact, oral arguments Parties appoint experts Judges are appointed from senior lawyers in practice
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CIVIL LAW
Judge plays main role in collecting evidence Trials are based on written evidence Court appoints the experts Judges are separately trained and appointed
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S A M P L E U K C O U R T J U D G M E N T 23
Summary: The Court of Appeal re-stated the test to be applied when assessing whether there was privity of interest between a new party and a party to previous proceedings, so as to prevent the new party litigating the same matter. Abstract: The appellant patent proprietor (L) appealed against a decision ([2013] EWHC 739 (Pat)) that the respondent company (R) was not precluded from bringing proceedings to challenge the validity of L's patent. Appeal dismissed. (1) A judgment that a patent was valid determined issues only between the parties to the revocation action. Judge: Longmore, L.J.; Moore-Bick, L.J.; Floyd, L.J. Significant Cases Cited Special Effects Ltd v L'Oreal SA [2007] EWCA Civ 1; [2007] Bus. L.R. 759; Legislation Cited Patents Act 1977 (c.37) s.65; Patents Act 1977 (c.37) s.72
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PROPOSED WALK-THROUGH
Categories of Law Common law Versus Civil law Middle eastern law What is UAE Civil Code? Does it address all Construction related issues? Is it only based on Sharia Law? Law of Contract; Important provisions
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MIDDLE-EASTERN LAW
Neither common law nor purely based on civil code No single uniform Middle East or Arab law Arab law is mixture of Islamic law and French civil code Egyptian Civil Code is the first Arab law enacted Arab countries have followed the Egyptian Civil Code. To understand Middle east law, we need to know bit of history Ottoman empire!
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OTTOMAN EMPIRE
Created by Turkish tribes in Anatolia.
One of the most powerful states in the world during the 15th and 16th centuries.
Spanned more than 600 years and came to an end in 1922 . Empire included modern Hungary, Serbia, Bosnia, Romania,
Greece, and Ukraine; Iraq, Syria, Israel, and Egypt, North Africa as far west as Algeria; and most of the Arabian Peninsula.
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Legal scholar and professor Abd al-Razzq al-Sanhr (1895-1971) is the author of Egyptian Civil code.
His twelve-volume commentary on Civil code is a magnum opus (Al-Was f shar al-qnn al-madan al-jadd)
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Common law
Civil law
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Tourist View
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Tourist View
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Contractor s view
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LAWYERS VIEW
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PROPOSED WALK-THROUGH
Categories of Law Common law Versus Civil law Middle eastern law What is UAE Civil Code? Does it address all Construction related issues? Is it only based on Sharia Law? Law of Contract; Important provisions
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Formation of UAE 1971 Civil Code (Federal law 5) 1985 Civil Procedure Code, Federal Law No.(11) 1992 Commercial Transactions Act 1993 DIFC Law 2004
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PROPOSED WALK-THROUGH
Categories of Law Common law Versus Civil law Middle eastern law What is UAE Civil Code? Does it address all Construction related issues? Is it only based on Sharia Law? Law of Contract; Important provisions
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law Is it true?
Let us use an analogy. Columbus and Civil code!!
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Wanted to reach India by sailing westward from Spain Landed in Bahamas instead
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Landed in Bahamas which he thought was Japan. Then went to Cuba which he declared as China
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DISCOVERY OF AMERICA
He never saw the main land of America, until his Third Voyage!
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1528 Articles 4 Volumes Contract of work, Contract of Sale, Lease, Mortgage etc.,
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Declaring Civil code contains only 25 articles on Contracts and The Code does not address the complexities of Construction Contracts is akin to
Columbus discovery of America until the third voyage
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The UAE Civil Code contains more or less as many provisions as it should without becoming over-intrusive in the way private parties wish to distribute their tasks. Civil Codes of most countries are generally minimalistic
Expanding civil codes into greater detail on the intricacies of specific aspects would be deemed as interventionist in most civil law-based jurisdictions.
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Art. 1156
1425.
Art. 2045
One must in agreements seek what the common intention of the contracting parties was, rather than pay attention to the literal meaning of the terms.
The common intention of the parties rather than adherence to the literal meaning of the words shall be sought in interpreting a contract.
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(1) If the wording of a contract is clear, it may not be departed from by way of interpretation to ascertain the intention of the parties.
(2) If there is scope for interpretation of the contract, an enquiry shall be made into the mutual intentions of the parties without stopping at the literal meaning of the words .. Corresponding articles from the civil codes of other countries: Jordan 239 and 240; Egypt 150 and 151; Syria 151 and 152
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In case of doubt, an agreement shall be interpreted against the one who has stipulated, and in favour of the one who has contracted the obligation
In case of doubt, a contract is interpreted in favour of the person who contracted the obligation and against the person who stipulated it.
Contract interpreted in favor of obligor In case of doubt that cannot be otherwise resolved, a contract must be interpreted against the obligee and in favor of the obligor of a particular obligation.
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This rule is adopted from Western jurisdictions. Common law doctrine Contra Proferentem Latin term which means against the offeror.
If a clause in a contract appears to be ambiguous, it should be interpreted against the interests of the person who insisted that the clause be included.
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PROPOSED WALK-THROUGH
Categories of Law Common law Versus Civil law Middle eastern law What is UAE Civil Code? Does it address all Construction related issues? Is it only based on Sharia Law? Law of Contract; Important provisions
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Where UAE law contains a specific provision, UAE courts will give effect to that provision.
A UAE court will pass judgment according to Sharia in the absence of a provision of UAE law covering the issue to be determined.
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Unjust enrichment
Ghara r Uncertainty
Due Process
Good faith
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PROPOSED WALK-THROUGH
Categories of Law Common law Versus Civil law Middle eastern law What is UAE Civil Code? Does it address all Construction related issues? Is it only based on Sharia Law? Law of Contract; Important provisions
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MUQAWALA CONTRACTS
Means a Contract to make a thing or perform a task
Definition and Scope Obligations of the Contractor Obligations of the Employer Subcontractor Termination of Contract
Article 871 to 874 Article 875 to 883 Article 884 to 889 Article 890 and 891 Article 892 to 896
25 Articles covering all aspects of Construction contracts Compare Articles 646 to 676 of Egyptian Civil Code
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MUQAWALA CONTRACTS
Article 874 A Muqawala Contract must provide description of subject matter of the contract, the manner of performance, period over which the contract has to be performed and Consideration
description of subject matter manner of performance Complete drawings and specification Method statements
period over which the contract.. Construction period consideration Contract Sum
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MUQAWALA CONTRACTS
Contractor obligations (briefly)
(for) Quality of materials (to provide) tools For any loss/damage arising from his work* Permitted to retain the work until payment
* Except when the loss arising from his work cant be prevented
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MUQAWALA CONTRACTS
Mandatory Contractor obligations
Article 880(1) Joint liability with Architect against partial/total collapse of the structure for TEN years. Article 886
Obligation to notify if the quantities required to complete the work is substantially more than what is included in the Contract in a Unit priced measurable contract
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Contractor is entitled fair remuneration for the work done by him even though there is no consideration specified in the Contract Article 888
Quantum merit in Common law Serck Controls Ltd v Drake & Scull Engineering Ltd [2000] (TCC)
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SUBCONTRACTING
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SUBCONTRACTING
Article 890
The Main Contractor is still liable to the Employer (Article 890 (2))
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SUBCONTRACTING
The Subcontractor shall have no claim against the Employer for any outstanding monies from the first contractor unless, There is an assignment by the first contractor to the Employer Article 891
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TERMINATION OF CONTRACTS
A Muqawala contract can be terminated in three ways Upon completion of work (actually it is completion!) Upon cancellation of the contract by mutual consent By order of the court Article 892
A party injured by the cancellation may make a claim for compensation from other party to the extent allowed by custom. Article 895
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NO THE T END
The Journey has just began!
Over 100s of Case law from Dubai Court of Cassation, Abu Dhabi Supreme Courts Venkat
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Coming Soon!!
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