the dubai international financial center (difc) … · difc court has more facilities to deal with...

Can the DIFC be a Construction Law Court?

THE DUBAI INTERNATIONAL FINANCIAL CENTER (DIFC)

COURTS AND

ITS’ APPLICATION IN THE CONSTRUCTION INDUSTRY AND DISPUTE RESOLUTION OF UAE?

MONIF LOUTFY 2012

Methods - Techniques Questions -Answers –Comparison

United Kingdom (UK)-Technology and Construction Court (TCC) and whether the former could suit as a construction law court.

United Arab Emirates (UAE) - Dubai International Financial Center (DIFC) Court in comparison with the

Principles of Research studied and explored, Type of research looked at and examined during the research methods course, that best suits this research.

Submitted to obtain Approval and Permission to proceed in preparing dissertation as part of the requirements of

ABSTRACT

1/30/13 UCLAN-Monif Loutfy 1

INTRODUCTION –AIMS


Transactions that will be

conducted in the DIFC

operations

Independent manner as per DIFC laws and

regulations

Legal Jurisdiction of choice -English

language- Common Law -International

Judges

The DIFC has its own London

Chamber of International Arbitration

(LCIA)

BACKGROUND-DIFC PURPOSE


REVIEW OF LITERATURE- ANSWER RESEARCH QUESTIONS


DIFC

DIFC Authority (DIFCA)

Policies and oversees the

strategic development, operational

management and

administration

Responsible for the

administration of laws and

regulations for non-financial

services

Dubai Financial Services Authority

(DFSA)

Grants licenses and regulates the activities of

financial services

conducted through DIFC.

DIFC Judicial

Authority (DIFC

Courts)

STRUCTURE


Design

Resolve financial Disputes

International standards

Certainty

Flexibility

Efficiency

Functions

Independent

Provisions of the DIFC laws and

regulations It has

Jurisdiction over civil and

commercial matters

No jurisdiction over criminal

matters.


DIFC COURTS

1.  Companies Law 2.  Contract Law 3.  Arbitration Law 4.  Insolvency Law 5.  Data Protection Law 6.  Collective Investment

Law 7.  Investment Trust Law 8.  Single Family Office 9.  Special Purpose

Company Regulations 10.  Payment Systems 11.  Settlement Finality

Law 12.  Preferential Creditor 13.  Regulations, 14.  Strata Title Law 15.  Trust Law

English commercial

law : insurance, shipping,

energy and construction

The DIFC Laws and Regulations are Developed :

• Non financial :Employment, Companies, Commercial, Real Estate laws

DIFC Authority (DIFCA)

• All financial and ancillary services within the DIFC.

Dubai Financial Services Authority

(DFSA).

LEGISLATION, RULES AND LAWS


Court of Appeal. • Civil or commercial cases and

disputes arising from or related to a contract in the DIFC

First Instance • Four Judges, one of whom shall

be the Chief Justice

Small Claims Tribunal • claim is less than AED 100,000 • with very simple procedures and

process and reasonable fees


JUDGMENTS & ORDERS-COURT STRUCTURE

1.  Power to enforce 2.  Orders and Awards 3.  Execution by Dubai

Courts


TECHNOLOGY AND CONSTRUCTION COURT

Queen's Bench Division

Senior Courts of England and Wales.

The Technology and Construction Court (TCC)

High Court of Justice, Crown Court Court of Appeal,

Supports technology

and Advancing

• Field of construction and technology disputes • Professional Negligence • IT disputes •  Enforcement of adjudication decisions and challenges to arbitrators’ decisions. The • Allegations of lawyers’ negligence arising in connection with planning, property, construction

and other technical disputes.

Jurisdiction

• Technically complex issues or questions TCC Claims

Difficulties local

Traditional courts

Timing

RATIONALE AND AIMS OF RESEARCH


Requires special Type of Courts

Research aims to

reduce the time and

procedures applied during

a dispute in construction

industry-based on

international standards

TCC was initially set

in UK to overlook

such aspects

“pure and applied research” aiming to discover a theory and exercised research directed to the end used with practical applications to pursue development work and applications…

¡  Case Study §  This paper intends to follow a case study style of research, as it

involves in depth investigation of particular instances related to DIFC, it will give a wider spectrum of analysis through ¡  Case study will yield deep but narrow results, which may facilitate generalization of findings; this

is supported by the triangulation nature of case study by using two or more (Fellows & Liu, 1997)

¡  Statically sampling: variety of data collection methods ¡  Employ interviews ¡  Possible methodologies may arise based on contextual complexit ies of

cases during research

RESEARCH METHODOLOGY


Used widely Real Life

Cases

variety of disciplines

Easy to compare

Analogue model : TCC and DIFC

Survey :Limited to DIFC and its’ application in United

Arab Emirates, Dubai through its case law,

registered members and tribunal judges.

Sampling :case law of both courts and compare

decisions of similar facts of dispute and examine the common and uncommon

outputs.

Limitation :Selecting randomly a specific

number of cases , could be limited to 2 or 3 of them,

and conclude comparative analysis accordingly

Reviewing the current construction cases in the

traditional courts and highlight its advantages

and disadvantages.

The literature review will also review the

construction cases dealt at the DIFC court and how it

resolves the issues.

Descriptive qualitative research-Cost-Time-

Outcome

Questionnaire will be designed to seek opinions

from construction specialist ,law firms and

judges on the above questions.

MODELING AND SCOPE OF SURVEY


Empirical inquiry that investigates a contemporary phenomenon within its real-life context.

Sources of evidence are used, yet limiting its general inquiry and phenomena to question specific queries and trying to find answers to them.

Case study encompasses specific approach of data collection and data analysis by studying each type of courts: DIFC and TCC and

• Type of contracts in each country, • Relation of construction parties between themselves, • Methods of dispute resolution

Qualitative and Quantitative analysis, but linked to real-life context but by a descriptive mode.

Variations

• Procedures in both courts • Type of construction contracts used in each country • Reasons leading to Dispute in each country • Methods for resolving disputes • When courts are involved

DESIGN OF RESEARCH


How TCC is operating?

How DIFC is operating?

Why DIFC cannot have construction claims within its cases

Why DIFC courts is needed for Construction ?

Is the extension of the jurisdiction of the DIFC Court will be welcomed?

Does UAE need a Technology and Construction Court Similar to the UK?

Is their a relation between Independent and a dependent variable and explores the type of this relation?

What are the variables between UAE Law and Contract Law in UAE (FIDIC)?

RESEARCH QUESTIONS AND HYPOTHESIS


Larg

e am

ount

of

dat

a

Mul

tiple

so

urce

s

Syst

emat

ic

orga

niza

tion

of

the

data

Adva

nce

prep

arat

ion

Ref

eren

ces-

Ca

se L

aw

Doc

umen

t and

O

bser

vatio

n

Sim

ilar

Res

earc

h

Que

stio

nnai

res

Inte

rvie

ws-

Fo

rmal

-Inf

orm

al

Sem

i-Str

uctu

red

COLLECTION OF INFORMATION


Raw data

Links between the research object and the outcomes

Triangulate data in order to strengthen the research

findings and conclusions.

Categorize, tabulate, and recombine data cross-

checks of facts

Minimize the amount of manipulation of final data- Overcome the

resultant defects.

Improve the likelihood of accurate and reliable findings.

Exemplary case studies expose or

create new insights

Look for conflicting data to disconfirm the

analysis.


CRITERIA TO INTERPRET FINDINGS-LIMITATIONS

Traditional courts deliver verdicts based on the opinion of so-called experts with no technical

knowledge

Big gap in this region in terms of the enormity of construction compared to the law in place

to deal with it.

Contract can often avoid complications in local courts

DIFC court has more facilities to deal with major construction disputes.

Contract Conditions to refer to DIFC LCIA [London Court of International Arbitration]

procedures in case of dispute

The protocol between the DIFC and the Dubai court will allow the DIFC judgment to be

enforced in the Dubai court

1.  Research will be limited to cases in Dubai of UAE

2.  Construction industry 3.  Survey errors 4.  Time 5.  Shortage on research in similar

cases.

Parties willing to add into

contracts a dispute

resolution through the DIFC LCIA procedures

Amount of difficulties in

dispute resolution

Current resources

used in time and cost

Lack of experts and technical people to deal

with specialized disputes.

THE WRITING OF RESEARCH IS A POTENTIAL SUCCESS TO RECOMMEND THAT DIFC WILL BE SIMILAR TO TCC, THIS IS

SUPPORTED BY THE FOLLOWING :


Conclusion

High Potentials for

Success in having a DIFC as a

Construction Law Court


THANK YOU

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