THE THE D DUBAI BAI I INTE TERNATI TIONAL AL FINANCIAL CENTER - - PowerPoint PPT Presentation

Ca Can t n the D he DIF IFC b C be a e a Cons Constru ruct ction ion La Law Cou w Court? ? THE THE D DUBAI BAI I INTE TERNATI TIONAL AL FINANCIAL CENT FINANCIAL CENTER ( ER (DIFC) DIFC) CO COUR URTS S AND AND IT ITS’ AP ’ APPLIC LICATION IN T ION IN THE E CO CONSTR NSTRUCTI UCTION I N INDUSTR NDUSTRY AND Y AND DIS DISPUT PUTE RES E RESOL OLUT UTION OF U ION OF UAE? AE?

MONIF L MONIF LOUT OUTFY FY 20 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

ABSTRA ABSTRACT CT

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INT INTRODUC ODUCTION – ION –AIMS AIMS

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Transactions that will be conducted in the DIFC

• perations

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)

BA BACK CKGR GROUND-DIFC DIFC PUR PURPO POSE SE

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REVIEW REVIEW OF OF LIT LITERA ERATURE- URE- ANS NSWER ER RES RESEA EARCH QUES QUESTIONS IONS

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DIF IFC DIFC A Autho hority ( (DIFCA) A)

Policies and

• versees the

strategic development,

• perational

management and administration Responsible for the administration

• f laws and

regulations for non-financial services

Dubai i Fin inancia cial l Service ices s Authorit ity (D (DFSA)

Grants licenses and regulates the activities of financial services conducted through DIFC.

DIF IFC Judicia icial l Authorit ity (DIF IFC Courts) s)

STRUCTURE

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Design

Resolve financial Disputes

International standards

Certainty Flexibility Efficiency

Fu Functions

Independent

Provisions of the DIFC laws and regulations It has Jurisdiction over civil and commercial matters No jurisdiction

• ver criminal

matters.

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DIFC DIFC C COUR URTS

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).

LEG LEGIS ISLA LATION ION, , RULES ULES AND ND LA LAWS

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Court o

• f Ap

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

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JUDG JUDGMENT MENTS & ORDERS & ORDERS-C

• COURT

OURT STR STRUCTU CTURE

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

Courts

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TE TECHN CHNOLOGY AN Y AND CO CONSTR STRUCTI CTION CO COUR URT

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

RA RATIONALE AND AIMS IONALE AND AIMS OF RES OF RESEAR EARCH

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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

• verlook

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…

¡ Ca Case S se Stu tudy y

§ 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)

¡ St Statically sampling: variety of data collection methods ¡ Em Emplo ploy int y intervie iews ws

¡ Possible methodologies may arise based on contextual complexities of cases during research

RES RESEA EARCH MET METHODOL ODOLOG OGY

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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

• utputs.

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

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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

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How TCC is operating? How DIFC is operating? Why DIFC cannot have construction claims within its cases Why D DIFC c courts i is n needed f for C Construction ? ? Is the extension of the jurisdiction of the DIFC Court will be welcomed? Does U UAE AE n need a a T Techn hnology a and C Construction C Court S Similar t to t the he U 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

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Large amount

• f data

Multiple sources Systematic

• rganization of

the data Advance preparation References- Case Law Document a and Obs Observat ation ion Similar Research Que Questionnaire ionnaires

Interviews- Formal -Informal Semi-Structured

COLLECTION OF INFORMATION

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Raw data Links between the research

• bject 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

• f accurate and

reliable findings. Exemplary case studies expose or create new insights Look for conflicting data to disconfirm the analysis.

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CRITERIA TO INTERPRET FINDINGS- LIMITATIONS

Traditional courts deliver verdicts based on the

• pinion of so-called experts with no technical

knowledge Big gap in this region in terms of the enormity

• f 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 :

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Conclusion

High Potentials for Success in having a DIFC as a Construction Law Court

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THAN ANK Y YOU

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