THE DUBAI INTERNATIONAL FINANCIAL CENTER (DIFC) COURTS AND ITS APPLICATION IN THE CONSTRUCTION INDUSTRY AND DISPUTE RESOLUTION OF UAE?

Transcription

1 THE DUBAI INTERNATIONAL FINANCIAL CENTER (DIFC) COURTS AND ITS APPLICATION IN THE CONSTRUCTION INDUSTRY AND DISPUTE RESOLUTION OF UAE? Can the DIFC be a Construction Law Court? MONIF LOUTFY 2012

2 ABSTRACT Submitted to obtain Approval and Permission to proceed in preparing dissertation as part of the requirements of Principles of Research studied and explored, Type of research looked at and examined during the research methods course, that best suits this research. United Arab Emirates (UAE) - Dubai International Financial Center (DIFC) Court in comparison with the United Kingdom (UK)-Technology and Construction Court (TCC) and whether the former could suit as a construction law court. Methods - Techniques Questions -Answers Comparison 1/30/13 UCLAN-Monif Loutfy 1

3 INTRODUCTION AIMS 1/30/13 UCLAN-Monif Loutfy 2

4 BACKGROUND-DIFC PURPOSE 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) 1/30/13 UCLAN-Monif Loutfy 3

5 REVIEW OF LITERATURE- ANSWER RESEARCH QUESTIONS 1/30/13 UCLAN-Monif Loutfy 4

6 STRUCTURE DIFC Authority (DIFCA) Dubai Financial Services Authority (DFSA) DIFC Judicial Authority (DIFC Courts) DIFC Policies and oversees the strategic development, operational management and administration Responsible for the administration of laws and regulations for non-financial services Grants licenses and regulates the activities of financial services conducted through DIFC. 1/30/13 UCLAN-Monif Loutfy 5

7 DIFC COURTS Design Functions 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 Resolve financial Disputes International standards Certainty Flexibility Independent Provisions of the DIFC laws and regulations It has Jurisdiction over civil and commercial matters No jurisdiction over criminal matters. English commercial law : insurance, shipping, energy and construction Efficiency 1/30/13 UCLAN-Monif Loutfy 6

8 LEGISLATION, RULES AND LAWS The DIFC Laws and Regulations are Developed : DIFC Authority (DIFCA) Non financial :Employment, Companies, Commercial, Real Estate laws Dubai Financial Services Authority (DFSA). All financial and ancillary services within the DIFC. 1/30/13 UCLAN-Monif Loutfy 7

9 JUDGMENTS & ORDERS-COURT STRUCTURE 1. Power to enforce 2. Orders and Awards 3. Execution by Dubai Courts 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 1/30/13 UCLAN-Monif Loutfy 8

10 TECHNOLOGY AND CONSTRUCTION COURT Supports technology and Advancing 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, Jurisdiction TCC Claims 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. Technically complex issues or questions 1/30/13 UCLAN-Monif Loutfy 9

11 RATIONALE AND AIMS OF RESEARCH TCC was initially set in UK to overlook such aspects Difficulties local Traditional courts Requires special Type of Courts Research aims to reduce the time and procedures applied during a dispute in construction industrybased on international standards Timing 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 1/30/13 UCLAN-Monif Loutfy 10

12 RESEARCH METHODOLOGY 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 complexities of cases during research Used widely variety of disciplines Real Life Cases Easy to compare 1/30/13 UCLAN-Monif Loutfy 11

13 MODELING AND SCOPE OF SURVEY 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. 1/30/13 UCLAN-Monif Loutfy 12

14 DESIGN OF RESEARCH 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 1/30/13 UCLAN-Monif Loutfy 13

15 RESEARCH QUESTIONS AND HYPOTHESIS 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)? 1/30/13 UCLAN-Monif Loutfy 14

16 COLLECTION OF INFORMATION Improve the likelihood of accurate and reliable findings. Triangulate data in order to strengthen the research findings and conclusions. Raw data Large amount of data Multiple sources Systematic organization of the data Advance preparation References- Case Law Document and Observation Similar Research Questionnaires Interviews- Formal -Informal Semi-Structured Look for conflicting data to disconfirm the analysis. Minimize the amount of manipulation of final data- Overcome the resultant defects. Categorize, tabulate, and recombine data crosschecks of facts Exemplary case studies expose or Links between the research create new insights object and the outcomes 1/30/13 UCLAN-Monif Loutfy 15

17 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 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. The protocol between the DIFC and the Dubai court will allow the DIFC judgment to be enforced in the Dubai court 1/30/13 UCLAN-Monif Loutfy 16

18 THE WRITING OF RESEARCH IS A POTENTIAL SUCCESS TO RECOMMEND THAT DIFC WILL BE SIMILAR TO TCC, THIS IS SUPPORTED BY THE FOLLOWING : High Potentials for Success in having a DIFC as a Construction Law Court Parties willing to add into contracts a dispute resolution through the DIFC LCIA procedures Current resources used in time and cost Conclusion Amount of difficulties in dispute resolution Lack of experts and technical people to deal with specialized disputes. 1/30/13 UCLAN-Monif Loutfy 17

19 1 2 3 THANK YOU 1/30/13 UCLAN-Monif Loutfy 18