Construction Arbitration in the MENA Region

Introduction

The MENA region, from the Arabian Gulf to the Atlantic Ocean, has witnessed progression and development in the construction industry and infrastructure projects over the past two decades.[2] Statistics show that foreign direct investment in the region is growing fast,[3] with disputes reaching US$91 million in 2017.[4] Construction disputes commonly rank at the top of the disputes arbitrated before arbitral institutions.

Various commonalities exist among the legal systems of Arab countries throughout the MENA region, owing to them having a similar constitutional and legal framework, where Islamic shariah forms the basis for legislation in the region. Having the oldest existing and most influential legal system in the MENA region, Egypt has impacted and influenced the laws of other civil law Arab countries, including Algeria, Bahrain, Jordan, Kuwait, Lebanon, Libya, Morocco, Oman, Qatar, Syria, Tunisia and the UAE.

Given the importance of the construction industry in the MENA region, it would be useful to briefly scrutinise certain legal principles and claims pertinent to construction contracts that regularly surface in construction disputes in the MENA region. These principles and claims, which are largely influenced and shaped by Egyptian law and practice, include good faith,[5] implied terms,[6] suspensive conditions, abuse of right,[7] estoppel, prohibition of taking advantage of one’s own wrongdoings, liquidated damages,[8] concurrent delays, acceleration and global claims, principles of interpretation, interest, the duty of mitigation, exceptional circumstances (imprévision),[9] force majeure,[10] notices for breach, contractual liability,[11] decennial liability,[12] exceptio non adempleti contractus, limitation and exclusion of liability, unjust enrichment claims and revocation of contracts (nullity, termination, rescission).

It is also common knowledge that the construction industry is dispute-rich and claims-oriented. Construction projects seldom end without dispute; disputes are common and not unexpected. Usually, such disputes revolve around time, cost, variations, liability or quality issues. Construction disputes are complex, multi-faceted, time-consuming and dynamic depending on the nature of the project (as delivered, as planned, as built), the type of contract (fixed lump sum or re-measured) and the specific sector involved (energy, telecommunications, hospitality, real estate, etc.)

Construction disputes also involve multiple parties (employers, contractors, subcontractors, engineers, construction managers, suppliers, insurers, funders, etc.) with divergent interests, risks and expectations. Such disputes may have adverse consequences on not only the specific project but the status of foreign investment from the region and beyond on the long run.[13] Arbitration remains the MENA region’s effective and preferred dispute resolution process for the entangled web of intricate legal issues and risks arising from construction contracts. However, a framework of international principles and standards that allow for more certainty and visibility is much desired. It is in this context that the International Federation of Consulting Engineers (FIDIC) forms of contract offer a working model utilised by employers and contractors throughout the region for diverse projects across all sectors involving construction works.

That said, this chapter aims to provide an overview of certain legal principles invoked in construction-related disputes in the MENA region, so that the specificities of these legal principles and their application can be properly addressed and considered in construction arbitrations governed by the laws of certain MENA region countries.

The role of FIDIC in the construction industry in the MENA region

The FIDIC forms of contract have been used in the MENA region since 1970.[14] While these forms are English common law-based texts, they have, nonetheless, been widely adopted and applied in Arab states in the MENA region, where legal systems are primarily civil law and Islamic shariah-based. The public sector has led the way for the adoption of FIDIC forms of contract in the region in response to tendering laws and the requirements set by governmental entities.[15]

However, owing to the codification of civil legal principles throughout the MENA region, certain tension or concerns may arise regarding the application of the FIDIC conditions of contract and the legal principles prevailing under civil law in certain jurisdictions. Among the disputes that regularly arise in this context and in relation to projects proliferating throughout the MENA region are:

  • the engineer’s administration of works and specifically the likelihood of late approvals, incorrect or insufficient instructions;
  • lack or delayed determination on extension of time (EOT);
  • cost;
  • changes and variations to the stipulated obligations, contractual breaches by the employer or contractor;
  • non-payment;
  • defective construction and performance;
  • non-conformity of materials;
  • warranties and representations;
  • concurrent delay;
  • force majeure and hardship (imprévision);
  • termination;
  • liquidated damages; and
  • fulfilment of conditions precedent.

It is in this context that FIDIC offers an effective contractual regime that has been tested and applied with success throughout the region. Nevertheless, it is not always the case that the agreed contractual model offers a framework that is consistent with the applicable law and norms, hence the need to ascertain and distil the applicable legal principles and how they apply in the context of construction contracts and disputes throughout the MENA region.

Construction contracts and disputes in the MENA region – civil law principles

The French Civil Code has influenced the civil codes of many MENA countries, including Egypt, which in turn is viewed as the source and model on the basis of which many Arab countries have modelled their laws. In addition, the maxims and jurisprudential principles of Islamic shariah (as mainly compiled in Majalet Al-Ahkam Al-Adliya, which was drafted by a group of eminent Islamic scholars based on the Hanafi school of thought and was later adopted by the Ottoman Empire in 1877 AD as the civil code of the Empire)[16] also form the basis for many of the shariah-inspired general principles of the MENA region civil codes.

A proper understanding of any law necessitates a proper understanding of its general principles, maxims, theories and doctrines. Some mistakenly assume that if a civil law principle is not embodied in a civil code, it ought not be recognised as a principle under the relevant civil law jurisdiction. Although civil law tradition is founded on the premise that the law is primarily derived from legislative codes, this does not mean that the law is confined to legislative texts and it is also not confined to the black letter wording of such texts; rather, it extends to the text’s underlying spirit and purpose in accordance with the applicable rules of interpretation and principles prevailing in the specific legal system.

As such, the Egyptian Civil Code (ECC), as well as the civil codes of most MENA countries,[17] provides explicitly that ‘provisions of laws govern all matters to which these provisions apply in letter or spirit’.[18] Prof Dr Al Sanhoury explains that ‘it has to be noted that the meaning intended by the provision is not only exclusive to its wording, but may also extend by way of connotation/implication [Dalalah] to another meaning’.[19] For instance, the principle that no party may benefit from its own wrongdoing and the principle of estoppel are not expressed in most civil codes of MENA region jurisdictions; however, this does not negate their existence as overarching general principles of the relevant jurisdiction.[20]

In the absence of a specific legislative rule that could resolve the issue in dispute, civil laws of the MENA region provide that courts or tribunals may resort to other secondary sources such as custom, Islamic shariah and principles of natural law and justice.[21]

Construction contracts often involve issues arising from the interpretation of the various documents forming part of the contract.[22] As previously stated, the most common type of FIDIC form of contract used in the MENA region is the Red Book,[23] and it is submitted that among the legal issues and principles at the heart of construction disputes governed by MENA region civil laws are: good faith, abuse of rights, estoppel, prohibition of taking advantage of one’s own wrongdoing, force majeure and imprévision, notices for breach, global claims, accelerated claims, delay damages, concurrent delay, principles of interpretation, implied terms, the duty of mitigation, suspensive conditions, interest, decennial liability, exceptio non adempleti contractus limitation and exclusion of liability, unjust enrichment claims, nullity, termination and rescission, which are addressed below.

Good faith

Good faith is a sacrosanct principle of law recognised all throughout the MENA region.[24] It is a prevailing principle in the laws of Arab states,[25] where it governs all aspects of a contractual relationship starting from the negotiation phase, through the conclusion of the contract, its performance, and to its termination.

The importance of the principle of good faith lies in the consequences of the breach thereof, where a party’s liability is usually aggravated whenever it is established that its acts or omissions were not undertaken in good faith or were proven to be undertaken in bad faith.[26] Moreover, courts in the MENA region frequently add and imply obligations to contracts on the basis of good faith.[27]

It is submitted that the duty of good faith is generally not limited to the performance of contracts but extends to the pre-contractual negotiations.[28] Indeed, once the parties agree to enter into negotiations, such agreement to negotiate must be performed in good faith. The duty of negotiation in good faith has several variants including, an obligation to negotiate transparently,[29] as well as an obligation not to unilaterally revoke what has been agreed.[30]

A person is presumed to be acting in good faith unless proven otherwise, hence the rebuttable presumption of innocence and good faith performance. Nevertheless, establishing gross fault or negligence is sufficient to evidence bad faith and shift the burden of proof to the party claiming good faith performance.[31]

Acting in good faith, inter alia, involves certain constraints and positive duties including:

  • an obligation of cooperation among the parties for the proper execution of a contract;[32]
  • an obligation to transparently disclose any matter or event that may impact or influence the performance of the contract;
  • an implied obligation to avert any act or omission that may adversely impact the performance of the contract;[33]
  • an obligation to pursue the most suitable method of performance when there are two or more alternative methods;[34]
  • an obligation to act reasonably and avert abuse of discretionary power or rights;[35]
  • an obligation not to misrepresent any fact pertaining to the performance of the contract;[36]
  • an obligation to notify the other contracting party within a reasonable period of time;
  • an obligation to avert dilatory and surreptitious behaviour;
  • an obligation to act consistently with prudence[37] and observe commercial standards of dealing;[38]
  • an obligation to act in accordance with the objective or objectives of the contract and the justified [legitimate] expectations of the parties;
  • an obligation to avert deviation from the purpose the right was prescribed for[39] (i.e., achievement of a serious and legitimate interest);[40]
  • an obligation to abandon strict adherence to a literal interpretation if the latter leads to absurd results contrary to the spirit of the contract, its proper performance and the parties’ common intention;
  • an obligation to mitigate damage or harm if sustained by either party;
  • an obligation to avoid any third-party communications and dealings that jeopardise or adversely impact the existing contract;[41] and
  • an obligation to avoid reaping the greatest advantage from the contract at the expense or to the detriment of the other party by choosing to implement its right in a prejudicial way to its counterparty.[42]

The variants of the principle of good faith have been further considered by an arbitral tribunal applying Egyptian law in the specific context of a construction contract, where the tribunal ruled that:

It is accepted in all international construction contracts that: (a) whereas it is the duty of the contractor to do what the contract requires to be done (as designed and specified by the employer, the employer shall allow the contractor to do that which is to be done without hindrance; and a party cannot benefit of its breach to the detriment of the injured party . . . (b) Whereas a contract provides for a date for completion of the works, but the employer through its acts or omissions prevents the contractor from achieving that date and there is no entitlement to extensions of time under the contract in such event the time for completion is nullified. This in turn means that the employer loses his right to levy liquidated damages and, while the contractor’s obligation to complete the Works remains, he must do so only within a reasonable time.[43]

Good faith extends to administrative contracts (including public works construction contracts), where the Egyptian Supreme Administrative Court concluded that good faith requirements equally apply to administrative contracts. The Court held that:

It is also established that a performance of the contract in accordance with its content and in a manner conforming to good faith requirements, is a general principle which applies to administrative contracts, same as it applies to all civil contracts . . . [44]

It is submitted that good faith involves both acts and omissions (passive and active duties), and necessitates the absence of bad faith.[45] In the specific context of construction contracts, an arbitral tribunal has tackled good faith, essential mistake and fraudulent misrepresentation in the conclusion of the contract and stated that if one party knew of a mistake pertaining to the conclusion of the contract and refrained from communicating it to the other party, the former shall be deemed to be acting in bad faith.[46] As previously alluded to, good faith does not solely concern refraining from acts or omissions of bad faith, but supposes in addition, respecting a cooperation obligation when it comes to the implementation the contract.

The question of identifying the criteria of good and bad faith is left to judicial discretion,[47] to verify whether each party’s conduct was in good or bad faith.[48] In the performance of construction contracts, a party will be considered to be acting in bad faith if it is determined to perform or terminate the contract with a bad intention or for a bad purpose. In this context, one may distinguish between three types of situations.

  • The first situation is the case where a party to the contract is determined to take a positive action or to refrain from acting in a certain manner while being absolutely aware that such action or omission will cause detriment to its counterparty. In such circumstances, such person is acting in bad faith.
  • The second situation is the case where a party to the contract is determined to take a positive action or to refrain from acting in a certain manner, while being unaware that such action or omission may be detrimental to its counterparty. In this case, it may be difficult to discern that the said party was acting in bad faith, as this will largely depend on whether such party was acting with an understanding that this constitutes a breach of the contract or not, irrespective of whether such breach will cause a detriment to the other contracting party.
  • The third situation concerns the case where a party to the contract acts or refrains from acting in a certain manner, while it is foreseen that such action or omission may cause the other contracting party certain detriment, yet the former chooses to act in this way. In that case, while the acting party had no intention or purpose to cause any detriment to its counterparty, it actually foresaw the possibility of detriment and accepted, in view of the benefit that it may reap, that such detriment may materialise. Accordingly, that party may (depending on the facts and circumstances) have contravened good faith, since it knowingly proceeded while foreseeing the likely prejudice that may ensue and that outweighs the benefit it desires to reap.

In manifestation of the duty of good faith, it is submitted that an employer is expected to exert all possible efforts to allow the contractor to complete the works without impediment.[49] If the works require the intervention of the employer, it shall do so within the contractually agreed period or within the period customarily required for that specific type of work.[50] That is why the parties remain under a positive obligation of cooperation during the performance of the contract (as a variant of good faith), even if the contract does not specifically include all its manifestations.

Principles of contractual interpretation

Subject to the applicable mandatory rules and any other overriding applicable legal principles, the parties are free to regulate their contractual relationship in accordance with the principle of pacta sunt servanda, and the rules of contractual interpretation allow tribunals and courts to ascertain the common intention of the parties as to the content of their contract.

The rules of contractual interpretation within MENA region jurisdictions largely mirror or resemble their Egyptian counterparts.[51]

Insofar as ambiguity does not taint a contract, no deviation, by way of interpretation, from the intended meaning of the clear terms of the contract is warranted, noting that this applies in accordance with the expressed intention of the parties.[52] Thus, clarity of the contract denotes the clarity of the parties’ unequivocal intention and not just the clarity of the words used. In other words, even if the wording of a contractual term is clear on its face, the nature of the contract or the circumstances of its conclusion may reveal that the said term’s intended meaning differs from the words used. In such event, courts and tribunals must discern the parties’ common intention through the rules of interpretation.[53]

There is a rebuttable presumption that the expressed intention of the parties is identical to their unequivocal intention.[54] A clear text is an indication of the expressed intention of the parties; however, this does not mean that the literal wording of a text is reflective of an expressed intention of the parties.[55] Rather, a tribunal or court may deviate from the literal meaning of texts in view of the wider context of the contractual terms.[56] The laws of Morocco, Lebanon, and Tunisia, which are directly influenced by French law, explicitly provide that a contract shall be read in light of the whole context of the contractual terms.[57] This is also the case in Egypt, where the Egyptian Court of Cassation upheld the ejusdem generis principle of interpretation.[58]

The mere disagreement between the parties as to the intended meaning of a contractual provision does not, in and of itself, taint a contractual provision with ambiguity. As such, it is the court or tribunal that is vested with the authority to ascertain whether a term or provision of the contract is ambiguous or not, after assessing the parties’ positions in relation to the wording of same

Should a court or tribunal find that the parties’ common intention differs from the expressed words, it shall resort to interpretation to ensure that the parties’ unequivocal common intention prevails. That said, it was held that:

The court may deviate from the expressed meaning of the text of the contract, to what it deems more accurate in reflecting the intention of the parties as an application to its absolute [discretionary] power in understanding the provisions of the contract, and what the parties intended by [such provisions], and preserving the common intention of the parties.[59]

Moreover, a court or tribunal is at liberty to apply the correct legal characterisation of a legal relationship, irrespective of the wording used by the parties.[60] Nonetheless, the court or tribunal must reason such deviation from the clear wording of a text, in case the latter is not reflective of the parties’ common intention.[61]

To ascertain the common intention of the parties, several elements must be taken into account, including:

  • the language of the contract;
  • the nature of the transaction;
  • prevailing customary practice; and
  • the good faith element reflected in the honesty and trust that ought to prevail between contracting parties.[62]

These elements are not exhaustive and the court or tribunal may refer to other factors in ascertaining the parties’ common intention,[63] such as the manner of performance of the contract[64] and the purpose underlying a contractual provision.

Furthermore, interpretation of construction contracts should be consistent with commercial common sense and business efficacy.[65] While some MENA civil codes do not expressly refer to common sense or business efficacy as guiding indicators, this is inferred from the references to the ‘nature of the transaction’, ‘honesty and trust/good faith’ and the ‘prevailing customary practices’.[66]

In light of the above, to the extent the expressed common intention of the parties to a contract is clear and unambiguous it shall be upheld and applied. However, if there is ambiguity or doubt as to such intention, good faith and the prevailing principles of interpretation militate against absurd or prejudicial interpretation, and any ambiguity shall be interpreted in favour of the debtor as per the applicable principles of interpretation.

Islamic shariah also provides some comprehensive maxims and principles in relation to the interpretation of contracts that could further assist tribunals and courts applying MENA laws, which consider Islamic shariah as a primary source for its legislation or a secondary source for its legal texts.[67] In fact, the UAE, Jordan and Tunisia have explicitly adopted many of these maxims.[68] Some of those maxims and principles are provided below:

  • in contracts, effect is given to intention and meaning not to words and forms;[69]
  • the norm in utterance is the real meaning;[70]
  • no attention is paid to inference or implication in the face of an explicit statement;[71]
  • when the real meaning is impossible, it departs to the figurative meaning;[72]
  • giving effect to words is better than ignoring them;[73]
  • no statement is imputed to a silent person; however, silence would be tantamount to a statement where there is a necessity for speech (i.e., circumstantial silence);[74] and
  • the absolute is construed in its absolute sense if there is no proof of a restricted meaning either in the legal text or by inference.[75]

Implied terms

Consistent with the good faith obligations, Arab laws include legislative provisions dealing with implied terms, where a contract is not exclusively limited to its express terms, but extends to cover implied terms.[76] Article 148(2) of the ECC, which inspired many similar provisions proliferating throughout the MENA region,[77] states: ‘A contract must be performed in accordance with its content, and does not only bind the contracting party to its content, but also to all that which is a necessary sequel thereof, in accordance with the law, custom and equity.’

Since pacta sunt servanda is overarching fundamental principles, it is worth noting that the doctrine of implied terms is not inconsistent with pacta sunt servanda, as the sequels of a contract remain subject to the parties’ agreement and are intended to complement and supplement the same. This means that implied terms may not amend, contradict or override the express terms of a contract agreed by the parties.[78] Nevertheless, it should be noted that even a detailed and sophisticated construction contract may possibly be silent on a certain matter or circumstances and even the nature of the obligations and their proper performance, in good faith, may warrant the inclusion of certain implied terms as a matter of law, custom or equity. Thus, if the parties’ agreement is silent on a certain provision, whether because the parties have failed to agree thereon or did not envisage the same, then the necessary sequels of a contract could intervene to fill the gap.

That said, it is not uncommon to imply terms in construction contracts, such as the duty of cooperation, which is also a variant of good faith. Similarly, even if it is not expressed in the contract, a contractor is expected to perform the works as deemed fit for the intended purpose, and the employer is subject to an implied obligation not to impede or interfere with the contractor in the performance of its obligations under the contract or the progress of the works.

An illustration of another implied term is the obligation of the contractor to maintain and protect the materials provided to him or her by the employer for performing the works and to exert his or her best efforts in doing so.[79]

Generally, there are factors that are taken into consideration when deciding whether a given term is implied in the contract or not, which are:

  • the nature of the contract or obligation (e.g., a contract for the construction of a residential tower would imply different terms than those concerning the construction of a power plant);
  • any supplementary legal provisions;
  • custom; and
  • equity and justice.[80]

Notably, expressions of trade usage may be the most common examples of implied terms in a construction contract.[81] However, because trade usages may not be customary or incorporated by law,[82] they usually only become binding if parties refer to them.[83] Nonetheless, trade usage may be presumed to represent the ‘parties’ realistic expectations’ and intention.[84]

Pertinent general principles of law are also deemed to be implied in relevant contracts unless the parties specifically agree to the contrary.[85] As previously mentioned, these general principles of law can be recognised and applied even if not expressed in legislative provisions in the concerned jurisdiction.[86]

After examining the requirements of an implied term in the given jurisdiction, a party invoking an implied term must prove its existence and purpose of implication, unless the applicable law authorises the court or tribunal to imply the term in that type of contract.

The prohibition of taking advantage of one’s own wrongdoings

Most of the MENA civil codes prohibit a party from taking advantage of its own breach or wrongdoing, even in the absence of a specific legislative provision to that effect. The Egyptian Court of Cassation reaffirmed this general principle when it stated that ‘it is established that a person cannot blame others for its own wrongdoing, be it fraud or negligence, and cannot benefit from one’s wrongdoing vis-à-vis others, even if that other [person] is also at fault’.[87]

In the same vein, Article 216 of the ECC provides that:

The court may reduce the amount of compensation or reject any request for compensation where the fault of the creditor contributed to or aggravated the damage.[88]

This grants a court or tribunal an express discretionary power to either reduce the amount of compensation or not to grant damages (whether agreed upon or not) altogether, as deemed reasonable, where a party has, as a factual matter, caused or contributed to the damage. An Egyptian Court of Cassation judgment held that:

[t]he right of the creditor to damages lapses, [in the sense] that he is not entitled [to damages] at all, if he solely committed the fault, if his fault prevailed over the fault of the debtor or if his fault is the cause resulted in the damage. [In this case] the creditor shall not have the right to demand the entirety of the damages if he contributed to the occurrence of the damage and it was proven that he himself failed to perform his obligation [89]

The prohibition of taking advantage of one’s own fault is indeed a general principle of law. A court or a tribunal will have to take in consideration the fault committed by the creditor (regular, gross, intentional) and how much it contributed to the overall damage (partially or fully) then weigh same with the fault and damage caused by debtor. Thus, a debtor’s liability would be wholly extinguished if the creditor’s fault outweighs and overwhelms that of the former or if the former’s fault was only an inevitable consequence of the latter’s. In other cases, the debtor’s liability may be proportionately reduced by the magnitude of fault it committed compared to that of the creditor.[90]

The Egyptian Court of Cassation has also applied the principle of the prohibition of taking advantage of one’s own wrongdoings or fault in the context of construction contracts, while addressing decennial liability. In the said judgment, the court ruled that:

A contractor’s obligation is an obligation to achieve a result, which is ensuring durability and safety of the building that he has built for a period of 10 years after its handover, which means that merely proving the non-fulfilment of the result establishes the breach of this obligation without the need to establish any fault. However, a contractor who works under the supervision of the employer, is not liable for the collapse or the defects that impose a threat to the durability of the building and its safety, if this was due to a fault in the design provided by the employer, unless the contractor is aware of this fault and approved it, or the fault is manifest to the extent that it would not be hidden from the perspective of the experienced employer.[91]

Abuse of right

A person is entitled to use his or her rights as mandated by the law or as agreed in a contract. However, a person is not entitled to use its right in an illicit or abusive manner.[92] Naturally, the person invoking abuse of right must not be acting in bad faith. While not expressly included in legal provisions regulating contracts, nothing prevents utilising abuse of right, where necessary, in the context of contractual arrangements, especially that it is arguable that non-abusive use of rights can only be characterised as an application of the overarching principle of good faith.[93]

Article (5) of the ECC[94] sets the criteria for abuse of right. The first criterion deals with the illegitimacy of the pursued interests. This denotes the absence of a legitimate and serious interest.[95] Every right is validly created to achieve a certain legitimate objective, if one utilises his or her right to achieve an illicit objective, this may be characterised as an abuse of right.[96] Indeed, the prevailing views confirm that the provisions of Islamic shariah may have a role to play in assessing the illicit nature of the pursued interests.[97] The second criterion deals with the existence of an intention of aggression. This would be the case if a person’s main intention is to inflict harm, even if its act or omission is associated with a secondary intention to achieve a benefit.[98] The third criterion denotes significant disproportionality between the benefits and prejudices resulting from the exercise of the right. This is the case whether the person who exercised the right was recklessly inconsiderate of the damage others may suffer for the sake of a minor benefit, or had a hidden intent to inflict harm under a pretext of a fictitious or minor benefit that is clearly outweighed by the damage sustained by another person.[99] The person exercising such right would be deviating from the usual conduct of an ordinary person, and is committing a breach for which he or she must be held liable.[100]

Estoppel

While the principle of estoppel is not be legislatively captured in most civil codes throughout the MENA region, estoppel, or allegans contraria non est audiendus, is a well-established legal principle derived from fundamental tenets of Islamic shariah and forms part of the legal systems of several countries in the MENA region.[101] Nevertheless, Article 70 of the UAE Civil Code (1985), Article 239 of the Jordanian Civil Code (1976) and Article 547 of the Tunisian Code of Obligations and Contracts (1907) explicitly capture the principle of estoppel. According to this sacrosanct principle, he or she who seeks to revoke what has been agreed, or engages in contradictory behaviour, shall be barred from doing so. Moreover, estoppel is explicitly endorsed and upheld by the judgments of Arab courts,[102] and it is validly argued that estoppel is a variant of good faith.[103]

Notably, in 2020, the Egyptian Court of Cassation innovatively unveiled two conditions for application of this principle: (1) a statement, an act or an omission is made by a party and contradicts with its previous conduct; and (2) that contradiction would prejudice the other party, which acted in reliance on the validity of the first party’s previous conduct. While the Court did not expressly refer to Islamic shariah in this context, it is worth noting that the principle of estoppel is also derived from Islamic shariah where no party may revoke what it has undertaken, concluded or consented to.[104]

In the specific context of construction contracts, if the employer or contractor engage in contradictory behaviour or either seeks to revoke what has been agreed or endorsed, estoppel and good faith will militate against validating such actions or omissions. For example, it was held that ‘there is no place for issuing a judgment awarding a delay penalty where the stoppage of work before the end of the contractual period is attributed to the appellant himself, in addition he who seeks to contradict his own previous actions is estopped from doing so’.[105]

In Saudi Arabia, in relation to disputes concerning the contractor’s remuneration, it was held that an employer is estopped from claiming a refund from the contractor for the works done, whether within the lump sum or extra works, if he or she has accepted the works and paid the entitlements thereto after examining the said works.[106]

Force majeure and imprévision

The laws of Arab countries in the MENA region, as well as Islamic shariah,[107] recognise and regulate the concepts of ‘force majeure’ and ‘exceptional circumstances’ (imprévision or rebus sic stantibus). Both concepts deal with events that are unforeseen at the time of contract conclusion and inevitable and beyond the control of a contracting party. However, while force majeure leads to impossibility of performance, imprévision, which only operates with respect to contracts whose performance is stretched over time, renders the performance of obligations excessively onerous (but not impossible) and threatens the debtor with exorbitant loss, if forced to specifically perform the exorbitant obligations.

Moreover, on one hand, force majeure generally leads to extinguishing the obligations that become impossible to perform,[108] unless the parties agree to regulate the ramifications of force majeure differently by allocating the risk of impossibility among themselves as they deem fit.[109] On the other hand, imprévision does not lead to extinguishing obligations, but to the possible moderation thereof by restoring the excessively onerous obligations to reasonable limits through a court judgment or an arbitral award. This could be achieved by awarding compensation or reasonably reducing the limit and scope of the cumbersome obligations. Imprévision also requires the unforeseen and inevitable supervening events to be of a general character (i.e., not exclusive to the debtor) unlike force majeure, which only requires that the unforeseen event to be due to an external cause that leads to the impossibility of performance. In addition, unlike force majeure, imprévision is generally subject to an overriding mandatory legislative regulation that does not allow the parties to a contract to derogate from such mandatory regulation by agreement.[110]

It is of utmost importance to note that, in the context of construction contracts, both force majeure and imprévision are subject to specific legislative provisions. By way of illustration, Article 664 of the ECC regulates force majeure and states: ‘A contract for works [construction contract] is extinguished if the performance of the work for which the contract was concluded becomes impossible.’[111]

With respect to imprévision, Article 658(4) of the ECC, which exclusively applies to ‘lump sum’ construction contracts (not re-measured contracts such as the FIDIC forms) states:

However, if the economic equilibrium between the obligations of the employer and the contractor collapses, due to exceptional events of general character, which were unforeseen at the time of contracting, causing the basis for the monetary valuation of the contract to fizzle, the Court may order an increase in payment to the contractor or the rescission of the contract.[112]

Obviously, Article 658/4 of the ECC is a special application of the general principle enshrined in Article 147/2 of the ECC. They share the same conditions of application, yet the court or arbitral tribunal is not entitled to rescind the contract under Article 147/2, but can so order under Article 658/4 of the ECC in the specific context of lump sum construction contracts.

Finally, the threat of a conventional loss cannot trigger imprévision, even if such conventional loss is large in value; only a threat of an exorbitant loss (naturally exceeding loss of profit) can trigger imprévision. The loss in question must also be measured according to the contract itself irrespective of the assets and solvency of the debtor.[113]

It is also worth mentioning that both theories equally apply to administrative contracts.[114]

Notices for breach and entitlement to compensation

Construction disputes regularly involve an issue of whether a notice for breach and entitlement to compensation has been validly served. A notice for breach in Egypt, Algeria, Kuwait, Libya, Syria, Iraq, Jordan, Oman, Qatar, Bahrain and the UAE[115] has the purpose of placing the debtor in the position of a defaulting party. In other words, unless the parties agree otherwise, the mere fact that the debtor has failed to meet the due date of its obligations does not, automatically, make it in default until the creditor notifies the debtor of same.[116] For instance, Article 218 of the ECC provides that ‘[a person] is not entitled to compensation except after notifying the debtor, unless otherwise provided by the law’.[117]

Although parties can agree to dispense with the notice requirement or on the form of notice, it is worth noting that, in commercial matters, the notice requirement is usually less formalistic and less stringent compared to civil matters.[118] In this regard, the strict procedural requirements of a notice in the civil code are not applicable to commercial dealings (e.g., construction contracts).[119] To a great extent, Algeria, Kuwait, Oman, Qatar and the UAE provide for a similar rule such as that provided under Article 58 of the Egyptian Commercial Code, which states that ‘[s]ummoning or notifying the debtor, in commercial matters, shall be done by virtue of an official warning, or by registered letter with acknowledgement of the receipt. In case of urgency, the demand or notification may be affected by virtue of telegram, telex, fax, or other swift communication methods’.[120] In any event, under most MENA region jurisdictions,[121] there are exceptions to having to issue a notice as captured in Article 220 of the ECC,[122] which provides that:

Notifying a debtor is not necessary in the following cases: 1- If the execution of the obligation becomes impossible or without interest because of an act of the debtor. 2- If the subject matter of the obligation is the recovery of an injury resulting from an unlawful act. 3- If the subject matter of the obligation is the restitution of a stolen thing known as such by the debtor, or something which has been unduly received by the debtor who is aware of such undue receipt. 4- If the debtor declares in writing that he is not going to perform his obligation.

In light of the above, the Egyptian Court of Cassation has ruled that a notification, in commercial matters, can be effected by a mere fax or other urgent means. Also, if the duration for performance of an obligation lapsed, a notification would no longer be required:[123]

Whereas it is also clear from the conclusions of the first instance judgement – which was not disputed between the parties – that the appellant company provided, as a proof of its claims, the originals of the faxes and expedited reminders sent to the first appellee company to induce it to send the agreed upon goods, which is enough – in the case at hand – as a notification as per Article 58 of the Commercial Code referred to above on the basis that the dispute in relation thereto is commercial between two companies, the conditions of urgency are satisfied by the failure of the appellee company to supply in the due time. This is due to the fact that the obligation of the appellee company to supply has a specific duration in the contract between it and the appellant, and by the lapse of that duration without performing its obligation for a reason attributed to its actions and defaults, it would be obliged to pay compensation without requiring a notification because a notification would not be useful – in such a case – since the specific performance in the determined duration is not possible. Whereas the challenged judgement has violated this reasoning and decided to dismiss the case for the absence of a notification, it has violated the law and erred in its application, which necessitates its cassation.

It is also worth noting that the Egyptian Court of Cassation held in 1984 that an oral notice may also be effected if so warranted by commercial custom.[124] This seems to be acceptable under the current 1999 Commercial Code, which allows, under Article 58, the use of any ‘swift communication methods’ in urgent circumstances.

As it appears from the above, the parties’ agreement and conduct determine the form and consequences of the non-fulfilment of a notice requirement in construction contracts.

On a related note, in certain construction contracts the parties may sometimes agree that if the notice is not served within a specific period of time:

  • the creditor’s right to claim would lapse;
  • the creditor would be deemed to have suffered no damages; and
  • the debtor would be deemed to have committed no fault.

Whether this operates as a limitation of liability clause or a waiver of right provision remains subject to the factual matrix of the specific case and the applicable legal provisions.[125] However, these clauses should not be confused with statutory limitation periods.

Global claims

An exceedingly pertinent question in relation to construction disputes subject to the civil laws in the MENA region is whether global claims are recognised under Arab laws. While global claims are well-established and regulated in common law countries, the terminology ‘global claim’ is alien to MENA region arbitrations subject to civil law principles. However, the inexistence of a specific terminology or specific legislative rules to address global claims does not mean that such claims are not capable of being analysed and assessed under the prevailing civil law principles.

Global claim occurs when the claimant alleges two or more breaches and says that those breaches cumulatively caused the loss or losses, but does not specify the proportion of that loss that is attributable to each breach. As mentioned above, Arab laws and provisions governing construction contracts make no express reference to global claims. However, this does not mean that they are inadmissible outright. The matter ought to be carefully scrutinised under the prevailing principles of contractual liability and specifically causation.

That said, a global claim may be permissible and may succeed as a matter of law under the generally applicable legal principles of contractual liability,[126] if the employer’s breaches were interdependent, interconnected and inseparable to an extent that it is impossible or impractical to segregate or separate same. In such event, if the contractor is able to prove that such interdependent and intertwined breaches had a cumulative effect and contributed altogether to the occurrence of the damage, without any separation, then the contractor’s claim may be accepted, provided that the contractor can show that the breaches claimed are all attributable to the employer. In such case, the burden of proof would shift to the employer to avoid liability and disprove what the contractor established. This may be supported by the principles of estoppel and prohibition of taking advantage of one’s own wrongdoing. On a related note, the Egyptian Court of Cassation had previously ruled that ‘a judgement is not subject to annulment if it awarded a lump sum compensation for a number of issues as long as it has discussed each issue separately and identified the basis of entitlement or non-entitlement of the aggrieved party in same’.[127]

Accordingly, global claims in construction may be admissible as a matter of civil law, if all three elements of contractual liability are satisfied, namely: the fault (breach), the damage and the causation,[128] and if it is established that the breaches attributable to the employer are inseparable.

Constructive acceleration

‘Constructive acceleration’ is a common construction claim derived from the common law jurisprudence, and involves, in essence, the speeding up of the progress of the works on the inferred or tacitly expressed instruction of the employer.[129] As to the law regarding acceleration, there are implied grounds for assertion of a claim. This has become known as ‘constructive acceleration’.

The doctrine of constructive acceleration is well recognised in the United States and is gaining traction in other legal jurisdictions around the world, including England and Canada. The trend in addressing constructive acceleration is to look solely to whether:

  • delays were excusable;
  • the contractor was ordered to accelerate; and
  • that actual acceleration caused the contractor to incur extra costs.

Most civil law jurisdictions do not recognise the term ‘constructive acceleration’ and Arab laws do not have legislative provisions addressing such claims. However, terminology does not matter and alternative routes to recovery exist, where the contractor is in excusable delay, but is not given corresponding schedule relief and is ordered to accelerate, and so incurs additional costs. In these situations, the contractor may recover damages under different legal principles, such as breach of contract, implied terms, mitigation of delay and damages.

In principle, it is established that a FIDIC contract does not necessarily oblige the contractor to accelerate and make up for the delay, if the delay is an act of, and caused by, the employer. Nevertheless, as a manifestation of good faith and cooperation in the performance of construction contracts, the contractor may affect ‘constructive acceleration’. Furthermore, if the contractor fears (notwithstanding a valid EOT claim) being penalised through the imposition of liquidated damages, the calling of its security bonds or termination, it will have to accelerate and then attempt to claim the costs of acceleration from the employer, assuming that the latter is wholly or overwhelmingly responsible for the delay. In such case, the contractor may have a claim for breach of contract provided that:

  • the employer breached its obligations of good faith in the performance of contracts by not granting an EOT;[130]
  • the contractor suffered damages (i.e., additional costs incurred due to accelerating the works); and
  • a direct causality exists between the breach and damage.

Again, it is worth noting that the sheer inexistence of express legislative provisions on a specific matter such as ‘constructive acceleration’ does not necessarily imply that such matter is inexistent or illegal under the applicable Arab law; the matter ought to be carefully scrutinised under the prevailing principles of contractual liability and other pertinent civil law principles to ascertain whether it, or an equivalent thereof, can be recognised under the applicable law.

Maintaining the economic equilibrium in administrative public works contracts

A large part of constructions contracts in the MENA region come in the form of public works administrative contracts that may be subject to specific principles and norms not necessarily encountered in a standard civil law context. Given the proliferated use of FIDIC in state contracts and the inherent difficulty associated with characterising a contract as administrative (noting that not all state contracts are administrative contracts), it is worth shedding some light on the specificity of administrative construction contracts as a feature of the MENA region.

Generally, it is submitted that the classification of a contract as administrative relies on the collective fulfilment of three conditions, namely:

  • the administration (public entity) must be a party to the contract;
  • the contract must relate to a public utility; and
  • the contract must include exceptional conditions anomalous to private law contracts.

In this context, the Egyptian Supreme Administrative Court held that a contract is administrative if the administration’s intention to apply public law principles appears by the inclusion of one or several anomalous conditions to private law contracts.[131] In principle, there are two types of exceptional conditions:

  • conditions reflective of public authority privileges; and
  • conditions in application of public law principles.[132]

In brief, the contract must reflect the state’s intention to showcase its jus imperii powers and to uphold public law principles in its contract.[133] In the context of construction (public works) contracts,[134] several legal principles may come into play, especially in the context of maintaining the economic equilibrium of the contract. It is in this specific situation that the administrative theories of fait du prince and imprévision gain importance.

As a general rule, fait du prince is defined as an act or measure, whether public or private (targeting only the opposing contracting party), issued or undertaken by a contracting public authority without fault or breach on its part, and that results in increasing the contractual burden of a contracting party in an administrative contract. In such case, the contracting authority is bound to compensate the other party for the damage sustained (loss suffered).[135]

The Egyptian Supreme Administrative Court upheld this doctrine, in its judgment of 11 May 1968, and ruled that ‘the interference of the Administrative Court to achieve the financial equilibrium of the administrative contract for the application of the doctrine of “fait du prince” presupposes/requires the satisfaction of its conditions’.[136] These conditions that must be collectively fulfilled are:

  • the existence of an administrative contract;
  • the act is issued from the contracting authority, and it is presumed that the contracting authority is not in default or breach by undertaking such act;
  • a harm results from the act and is suffered by the contracting party (i.e., without need for a specific degree of gravity of harm);
  • the act is unforeseen; and
  • the damage suffered by the contracting party is specific so that others (third parties) are not affected.

Additionally, the Egyptian Supreme Administrative Court upheld the doctrine of imprévision in the context of administrative contracts,[137] where imprévision remains subject to the same conditions discussed herein above. However, in an administrative public works contract, the remedy would be compensation, whereas, in civil law, the courts have broader powers to restore the cumbersome obligation to reasonable limits. Nevertheless, imprévision is not intended to compensate a contractor for all its losses; it only aims to restore the excessively onerous obligation to reasonable limits, so that the employer’s utility is not affected and the contractor is not severely harmed.

Delay damages

It is common knowledge that delay damages or liquidated damages are the employer’s strong tool and remedy for the contractor’s breaches, and they are regularly invoked and flagged in construction-related arbitrations. Liquidated damages are also an area where common law and civil law principles collide, and where administrative law principles intervene to distinguish penalties from delay damages.[138]

Generally, in civil law contracts, a party may avoid damages by proving:

  • it committed no breach;
  • the breach is attributable to an alien cause or the other party’s acts or omissions;
  • the inexistence of a causal link; and
  • no loss or harm was suffered or sustained by the aggrieved party.

A liquidated damages clause is an agreed compensation for either non-performance, delay in performance, or both. Mostly, liquidated damages clauses are drafted as an agreed compensation for delay; it is seldom drafted as a compensation for non-performance in construction contracts. Generally, a contractor is under an obligation to achieve completion of the works by the agreed time and his or her obligation to complete the works is an obligation to achieve a result.[139]

Thus, on one hand, the fault element of the contractor’s liability for delay in completion cannot simply be obviated by establishing that the contractor has exercised the due care of a reasonable person. Nevertheless, a contractor may avoid liability for delay by proving that the reason for such delay was beyond the contractor’s control, such as force majeure, supervening events beyond the contractor’s control, an act of a third party or the employer’s own fault.

On the other hand, the harm element of liability is rebuttably presumed by virtue of the liquidated damage clause. While the employer needs only to prove the contractor’s delay (fault element) to apply liquidated damages, the harm element is readily presumed and the burden of proof is shifted to the contractor to refute the said presumption and avoid liquidated damages.[140] Liability for liquidated damages would also be avoided if the delay in performance is attributed to the contractor’s lawful exercise of its right of exceptio non adimpleti contractus.[141]

In addressing damages or harm in general, Article (170) of the ECC grants courts a broad authority in quantifying damages,[142] and empowers courts and tribunals to quantify compensation, through the mechanism set out in Articles (221) and (222) of the ECC.[143]

Moreover, it is also common in construction contracts that capped liquidated damages are agreed in respect of a contractor’s failure to achieve the contractually specified and agreed performance standards.[144] Capped liquidated damages clauses work to save the employer the need to prove loss in events of delay by the contractor, and also to keep contractors informed about the magnitude of their potential exposure resulting from delay in performance. Accordingly, the general principle would be that courts or tribunals would uphold the agreed liquidated damages clause and will not reduce same in insofar as:

  • liability is not avoided;
  • the harm or damage presumption is not refuted;
  • the amount of liquidated damages is not proven to be excessively exaggerated; and
  • the contractor has not performed part of the obligation. This condition is not required if the obligation in question is indivisible.[145]

Liquidated damages also work as a limitation of liability clause. For instance, an employer cannot claim damages for delay in excess of the amount stipulated in a liquidated damages clause unless gross fault or fraud is established and attributed to the contractor.[146]

With the exception of Tunisia and Morocco, the majority of Arab laws recognise and incorporate provisions regulating capped delay damages or liquidated damages, and such laws are largely influenced by Egyptian law. Article 224 of the ECC states:

(1) Damages fixed by agreement are not due, if the debtor establishes that the creditor has not suffered any loss. (2) The judge may reduce the amount of these damages, if the debtor establishes that the amount fixed was grossly exaggerated or that the principal obligation has been partially performed. (3) Any agreement contrary to the provisions of the two preceding paragraphs is void.

While most Arab laws[147] provide for equivalently similar provisions of equal overriding mandatory nature, the Jordanian Civil Code of (1976), the UAE Civil Code (1985) and the new Omani Civil Code of (2013) offers a wider discretion to local courts. For instance, Article (267) of the Omani Civil Code, also encapsulating an overriding mandatory norm, stipulates:[148]

(1) If the object of the obligation was not an amount of money, the contracting parties may determine in advance the value of compensation by stipulating same in the contract or a subsequent agreement. (2) The Court may, in all events, based on a request by one of the parties, amend such agreement to make the quantification equal to the damage. Any agreement to the contrary shall be null and void.

Consequently, as a matter of Omani, Jordanian and UAE laws, a party can apply to the court or arbitral tribunal to override contractually agreed compensatory arrangements and adjust the specified compensation to equate it to the actual damage or harm suffered.[149] The court’s moderation of the obligation to pay liquidated damages can also be sought on different grounds such as exceptional general events, where partial or total discharge of the obligation may be also sought on grounds of force majeure causing partial or complete impossibility of performance, where applicable.

In light of the above, it may be summed up that, under Egyptian law as well as under many other MENA laws, there are a number of defences that may extinguish or reduce the obligation to pay liquidated damages, including:

  • the creditor has not served a notice on the debtor;[150]
  • the creditor has not established the debtor’s fault (i.e., that he or she has not performed or has delayed in performing his or her obligation);[151]
  • the debtor proves that the creditor has not suffered any harm;[152]
  • the debtor proves that the damages are related to an alien cause (i.e., creditor’s own fault, third parties’ actions or a force majeure event);[153]
  • the liquidated damages are related to an unforeseeable harm at the time of contract conclusion;[154]
  • the liquidated damages are related to indirect damages;[155]
  • the creditor has claimed termination of the contract;[156]
  • the creditor has claimed specific performance of the contract while also claiming liquidated damages for non-performance;[157]
  • if specific performance is still feasible and applicable;[158]
  • if the principal obligation, which the liquidated damages are related to, is null;[159]
  • if the debtor is entitled to invoke exceptio non adimpleti contractus, the debtor will not be susceptible to delay damages in relation to the non-performed obligation;[160]
  • the debtor proves that the liquidated damages are highly exaggerated;[161] and
  • the debtor proves that it has performed the respective obligation or obligations in part.[162]

Concurrent delays

Concurrent delay refers to a period of delay in a construction contract caused by one or more factors, where some of those factors are attributed to the contractor while others are attributed to the employer, which affect the project’s completion date,[163] or occur simultaneously or share a common point in time.[164]

On one hand, such case of concurrent delay might be utilised by contractors as a shield and a sword; a shield from the application of liquidated damages, and a sword to claim entitlement to an EOT. On the other hand, employers may attempt to invoke same to undermine and moderate contractor’s claims for prolongation costs.

The problem concerning this situation is who exactly should bear the consequences of such delay?

Under common law jurisprudence, different notions of causation were deployed to allocate the risk in a case of concurrent delay (the Malmaison approach, but-for causation, apportionment, and dominant cause).[165]

Under most MENA region civil codes,[166] the causation theory expressly deployed in matters of concurrent liability, whether contractual or tortious is a mixture of the theory of apportionment and the theory of dominate cause. For instance, on the issue of apportionment of liability, Article 169 of the ECC, such as the case in most of the MENA region,[167] stipulates:

[i]f there’s a number of persons liable for a wrongful act, they would be jointly liable to compensate the damage, and the liability would be divided between them equally, unless the judge decides the portion of liability attributed to each of them.[168]

This Article applies to cases where (1) there is more than one person liable for a wrongful act that causes damage; and (2) the injured party is among those who contributed to the harm (e.g., a case of concurrent delay).[169] Notwithstanding Article 169 of the ECC, Article 216 of the ECC, as is the case in many MENA region countries,[170] has also provided a special application to both the theories of apportionment and dominant cause where an injured party contributes to his or her own loss:

The court may reduce the amount of compensation or not award same at all where the fault of the creditor contributed to or aggravated the damage.[171]

Thus, courts and tribunals have the discretion to apportion liability among the wrongdoers (apportionment theory) or, according to some MENA region jurisdictions,[172] dismiss it altogether (where the dominant cause theory applies).[173] Similarly, the UAE Federal Supreme Court has held that:[174]

A judge may reduce the amount of damages or dismiss same at all if the injured party has participated by its own action in effecting the damage or aggravating same. This provision addresses the rule applied in the case of joint fault, which applies equally to both contractual and tortious liabilities.

The Egyptian Court of Cassation has applied the theory of apportionment in many cases; for instance, it was held that:[175]

Whereas the challenged judgment . . . has dismissed both appellants’ claims pertinent to the defendant company‘s fault in using the leased property [of the appellants] in a way that prejudices the integrity of the building on the basis that the defects that affected the building, subject of the dispute, have resulted from the owners’ [appellants] use of low quality types of reinforcing steel, other used materials, and iron bars, which lead to the defects and cracks in the building. . . . while the judgment ignored that the company [defendant] has contributed to the prejudice concerning the integrity of the building due to its employees and clients abusive use of the bathrooms, where they [the defendant] did not care to repair the trays and sewage pipelines, which lead the ground to be filled with humidity and dribbling, which affected the reinforcement steel and caused the cracks, thawing to the concrete roof roofing . . . Hence, the challenged judgment’s reliance, in its ruling, [only] on the fault of the owner [appellants] in causing damage to the integrity of the building and dismissing the claim . . . even though the company’s liability to those damages is proven to be 40 per cent . . . makes the judgment erroneous and necessitates its cassation.

This leads to the following conclusions.

  • Principally, the theory of apportionment applies, being dominant in many Arab civil codes.[176] In this regard, the court or tribunal shall discern the amount of delay attributable to each party so that they would be able to apportion liability between the contractor and the employer, each according to the degree of fault it committed in relation to the other.[177]
  • If, however, the court or tribunal is unable to discern the amount of delay attributable to each party according to their faults, the liability for delay would be equally divided between the employer and the contractor,[178] which is the general solution adopted under Article 169 of the ECC and similar Arab civil code provisions.[179]
  • In certain MENA region jurisdictions,[180] if one of the causes of delay highly outweighs the other to the point that one dominates or consumes the other,[181] or where one cause is merely consequent upon the other,[182] the effective cause therewith would be considered the dominant cause and the person whom the dominant cause is attributed to would bear 100 per cent of liability.[183]

Under the ECC (and many MENA region laws as mentioned above) a court or tribunal also has an authority to moderate the amount of liquidated damages if the harm is proven to be highly exaggerated or if the debtor proves that he or she has performed part of the obligation.

Professor Soliman Morkos opines that, as a preliminary issue, if one of the faults is of a ‘highly probable’ but not certain causative potency while the other is of an ‘assured’ and ‘certain’ causative potency, it is likely that only the latter would be deemed the relevant cause of the harm.[184]

The Egyptian Supreme Administrative Court generally applies the principle of apportionment.[185] In the specific context of construction contracts, the Egyptian Administrative Court also recognises the principles of apportionment and dominant cause,[186] and even Saudi law recognises the same.[187]

The exception of non-performance (exceptio non adempleti contractus)

It is not uncommon in construction disputes for parties to invoke exceptio non adempleti contractus. This is mainly due to the nature of construction contracts, which are typically bilateral contracts with reciprocal obligations that correspond to each other. A plea of exceptio non adempleti contractus is a shield that entitles the creditor to abstain from performing its obligations until the debtor performs its corresponding and due obligations.[188]

In this respect, Article 161 of the ECC sets the principle of exceptio non adempleti contractus, which is replicated in most of the MENA countries’ civil codes,[189] and provides that ‘in bilateral contracts if both reciprocal obligations fell due, each party may abstain from performing its obligation if the other party did not perform its own obligation’.

By way of illustration, the Bahraini Civil Code explicitly adds that the plea is applicable ‘unless the parties agree or the custom provides otherwise’.[190] In the same vein, the Moroccan Code of Obligations and Contracts also adds that the plea is applicable ‘unless one of them is obliged by virtue of an agreement or by law to perform his/her part of the obligation first. If performance is due vis-à-vis a number of persons, the debtor may abstain from fulfilling the obligation to any of them until a full settlement of his/her entitlements in relation to the reciprocal obligation’.[191] On a related note, in the specific context of construction contracts for works, Article 656 of the ECC provides that ‘payment shall be due upon receipt of the work, unless the custom or agreement otherwise requires’.[192]

On that basis, there are generally five conditions for the invocation of a plea of exceptio non adempleti contractus:[193]

  • first, there should be a bilateral contract;[194]
  • second, the plea shall be invoked in relation to reciprocal/correlated obligations in an existing contract. In this respect, the courts have wide discretion in determining whether and to what extent the obligations are correlated or connected;[195]
  • third, the correlated obligation must have fallen due and is legally binding;[196]
  • fourth, the party invoking the plea shall not be obliged by virtue of the parties’ agreement or the custom to perform its obligation prior to the debtor’s fulfilment of its corresponding obligation;[197] and
  • fifth, the party shall invoke the plea in good faith. Thus, the creditor invoking the plea shall refrain from abusing such plea (e.g., subject to the facts of each case and the applicable law, where the other non-performed obligation of the debtor is trivial compared to the creditor’s non-performed obligation, where the party invoking same was the one who started abstaining from performing its obligation, or where the debtor’s non-performance is attributable to the creditor).[198] However, subject to the facts of each case, the applicable law and stipulations of good faith, the creditor may still invoke exceptio non adempleti contractus even if the debtor has partially fulfilled its correlated obligation.[199]

Notably, subject to the facts of each case and the peculiarities of the applicable law, (1) it is not legally required to file an action nor serve a notice on the other defaulting party prior to relying on the plea of exceptio non adempleti contractus,[200] (2) the connection between the correlated obligations does not require a causal link between both obligations,[201] and (3) the relevant contractual obligation need not correspond to another proportionate and predetermined obligation.[202]

Decennial liability

Decennial liability is a mandatory strict regulation of a certain construction-specific liability. In the context of construction contracts, MENA region construction-related regulation includes mandatory strict decennial liability in the civil codes of countries such as Algeria, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libya, Oman, Qatar, Syria and the UAE.[203]

Contractors, according to the prevailing view, have an obligation to achieve a specific result, which is to duly perform the works without defects.[204] Decennial liability also imposes the joint and several liability of contractors, architects and engineers regarding any defects affecting the structural integrity of the building or causing total or partial collapse. This decennial liability operates as a mandatory overriding provision that may not be derogated from by agreement or choice of a foreign law, if such choice of foreign law (in relation to construction contracts relating to immovables) is legally permissible in the pertinent jurisdictions.

Under decennial liability, architects, engineers and contractors are jointly liable for partial failure or total collapse of constructions or other installations for a period of 10 years from the date of handover.[205] While most Arab laws provide for a 10-year decennial liability period, Article 876 of the Tunisian Code of Obligations and Contracts (1907) and Article 668 of the Lebanese Civil Code (1932) provide for a five-year liability.

The burden of proving that the collapse resulted from an external event beyond the jointly liable persons lies with such persons.

The liability period generally extends to 10 years, unless the parties intend to keep the building for a shorter period,[206] or the pertinent civil law provides for a shorter period, such as the former Bahraini rule providing for a five-year period.[207] Following the enactment of the Bahrain Civil Code in 2001, the liability period was extended to 10 years, as is the case in other Arab states.[208] Furthermore, any clause intending to limit or exclude the decennial liability shall be null and void.

The MENA jurisdictions share the following features of decennial liability:

  • it runs from handover and lasts for a period of five or 10 years or such lesser period, depending on the jurisdiction and whether the building is intended to last for a shorter period;
  • it arises notwithstanding that the collapse or defect resulted from a defect in the land;
  • it is joint and several, where the employer can proceed against the contractor, the engineer or the architect for the full amount of the claim; and
  • it is considered of an overriding mandatory nature and so cannot be excluded or limited by contractual arrangements or possibly choice of foreign law (assuming such choice is permissible).

Exemption of liability

It is not uncommon in construction disputes for parties to invoke exemption of liability clauses. In this respect, parties to construction contracts often add limitation and exclusion of liability clauses. This includes, by way of illustration, the following:

  • exclusion of loss of profits, opportunity loss, moral damages or other heads of losses from the scope of compensation;
  • limiting the period during which compensation may be claimed, such that a waiver of right, to the extent such waiver is unequivocal, would bar subsequent claims;[209]
  • agreeing on a certain amount as liquidated damages representing the maximum amount of compensation in relation to the contractor’s delay or defective performance; [210]
  • limiting the amount of compensation as a whole to a percentage of the contract price;
  • agreeing that the contractor will not assume certain technical risks during construction (e.g., uninterrupted operation of the facilities during construction);
  • agreeing that the employer will not assume risks in relation to the accuracy of the information given prior to the commencement of the construction works (e.g., soil or weather conditions);[211] or
  • agreeing that a contractor will not assume the risk of delayed payments to the subcontractor if the delay is attributable to a corresponding delay from the employer to make payments to the contractor.

Indeed, the validity and enforceability of these clauses will depend on the facts of each case and on the applicable law. Simply put, in a limitation or an exclusion of liability agreement, parties agree that the liability of one of these in relation to the other party is either exempted or limited.[212] Generally, with the exception of Libya,[213] limitation and exclusion of liability clauses are, to varying degrees, permissible in the MENA region.[214] However, a party cannot, as a general principle, limit or exempt itself from its own liability arising from torts, gross fault or fraud.[215] Nonetheless, Egypt, Algeria, Syria and Iraq permit limitation or exclusion of liability agreements in relation to gross fault or fraud committed by people employed by the party responsible for performance.[216]

Suspensive conditions

Parties to construction contracts uneventfully add suspensive conditions to one or more of the obligations in the contract. An obligation is deemed conditional if the obligation’s existence or extinction depends on a future uncertain event. Conditions can either be ‘suspensive’ or ‘resolutory’.

A ‘suspensive condition’ is that which has the effect of suspending the effect of an obligation until the agreed uncertain event occurs or is realised.[217] Examples of suspensive conditions include:

  • suspending the issuance of completion certificate by the employer on the completion of a successful performance test by the contractor;
  • suspending the commencement of the works on the handing over the site; and
  • suspending the performance of the works on securing any agreed financing, etc.

In specific reference to suspensive conditions, it was held that if the debtor intervenes and contributes to the non-fulfilment of the suspensive condition, the debtor would be liable and the obligation may well be deemed fulfilled, even if the suspensive condition has not actually materialised.[218]

That said, there are three types of suspensive conditions: fortuitous, voluntary and mixed conditions.[219] Both fortuitous and mixed conditions are valid.[220] As to the voluntary condition, it is either (1) a simple voluntary condition or (2) an absolute voluntary condition. The ‘simple voluntary condition’ is not simply conditional on the will of one of the parties, but is also constrained by the surrounding circumstances. For example, obtaining an approval from an independent third party (not subject to the control of the employer) as a suspensive condition for the acceptance of the works by the employer may well be a simple voluntary condition. Simple voluntary conditions are legally valid.[221]

Concerning the ‘absolute voluntary condition’, it is either dependent on the will of the creditor or the will of the debtor. If such condition is dependent on the will of the creditor, it is valid and binding. However, if such condition is subject to the will of the unilateral debtor, the obligation becomes inexistent ab initio (i.e., the obligation is considered as never having been created).[222]

The duty of mitigation

The duty of mitigation is known in both civil and common law systems. Article (221/1) of the ECC, as is the case with many MENA region civil codes,[223] states:

The judge shall fix the amount of compensation, if it has not been fixed in the contract or by law. The amount of damages includes losses suffered by the creditor and profits of which it has been deprived, provided that they are the normal result of the failure to perform the obligation or of delay in such performance. These losses shall be considered to be a normal result, if the creditor is not able to avoid them by exerting reasonable effort.[224]

Commenting on the said Article, Al Sanhoury stated that:

If the injured party did not perform reasonable efforts to avoid the damage, he would be deemed as having committed a fault; thus, there exists a common fault, and the injured party would have to bear the consequences of his fault by bearing the damage caused by that fault.[225]

This proves, from a civil law perspective, the existence of a general duty of mitigation by the aggrieved party, or it may risk moderation and reduction of the compensation due to its own fault, which contributed to the loss sustained.

The duty of mitigation can be seen as subordinate to the obligation of cooperation dictated by the general duty of good faith. This duty exists whether in the context of the contractual or tortious liability.[226] Courts throughout the MENA region have also confirmed that the damages for which the aggrieved party can seek compensation are those that could have not been avoided by taking reasonable steps by such party.[227]

While there are no strict criteria for determining what constitutes reasonable mitigation efforts, it is commonly agreed that these efforts should not be burdensome on the aggrieved party. According to the UNIDROIT principles, these efforts can either be directed to limit the extent of the harm ‘where there is a risk of it lasting for a long time if such steps are not taken’ or to avoid any increase in the initial harm.

Once the reasonable mitigation efforts are undertaken, there exists no prohibition that prevents an aggrieved party from seeking to recover mitigation costs on the basis of the principles of contractual liability as well as the general principle that a party may not benefit from its own wrongdoing.

Under Egyptian law, compensation (inclusive of incurred costs and expenses that form part of the losses) is not due if the aggrieved party did not suffer any harm. In the case of a sustained harm, the amount of compensation, subject to any limitation of liability clause, would include all direct losses incurred including mitigation expenses.

The Egyptian Court of Cassation has held that the determination of compensation is a factual matter that falls within the jurisdiction of the trial court. However, such determination must be proportionate to the sustained harm.[228] Thus, an arbitral tribunal would be at liberty to assess the value and scope of compensation, as inclusive of the costs and expenses of mitigation and their characterisation as direct and foreseen losses or not.

Finally, this chapter briefly addresses two scenarios related to recovery of mitigation costs. These scenarios specifically pertain to the situation where mitigation costs were incurred prior to a contractual breach by the employer, if at all possible. Under such scenario, the aggrieved party may have anticipated or envisaged a forthcoming breach by the other party and so acted prudently to mitigate the damage that would likely ensue as a result of the anticipatory breach materialising.

Under the first scenario, the breach happens and the damage is sustained despite the mitigation efforts. In such case, the aggrieved party would have incurred costs prior to the actual breach and damage. From a purely legal perspective, a potential breach of contract cannot be considered an actual default or breach to form the basis for recovery. However, a court or tribunal may treat this as a manifestation of good faith,[229] and if the damage unfolds, compensation may likely include mitigation costs that directly contributed to the reduction of the damage or loss sustained.

Under the second scenario, if the breach does not occur and the damage does not materialise, even though the aggrieved party had incurred mitigation costs, then one ought to distinguish between two possibilities: (1) the breach and damage have not occurred owing to the mitigation efforts undertaken by the aggrieved party; and (2) the breach and damage have not occurred for unknown reasons or reasons other than the mitigation efforts undertaken by aggrieved party. While there is no direct Arab authority or judgment on the point, yet if under (1) the aggrieved party managed to prove that the breach and damage have not materialised, in whole or in part, because of the mitigation efforts or actions, then to the extent that such actions were the direct cause for the non-materialisation of such breach or damage, a court or tribunal should order recovery of the costs on the premise that such efforts and actions led to a clear avoidance of contractual breach and harm that would have otherwise materialised. However, under (2), the aggrieved party will not be entitled to recover costs of mitigation simply because that scenario (2) confirms the lack of a causal link; hence no liability can be established.

Unjust enrichment or enrichment without cause (de in rem verso) claims

In construction contracts, parties sometimes invoke unjust enrichment or enrichment without cause claims. There are two possible scenarios that might give rise to an unjust enrichment claim. Under the first scenario, contractors in construction projects often execute extra works based on instructions from the engineer or the employers to vary the works. Normally, instructions of extra works are regulated under variation clauses, which usually entitle the contractor to the value of the extra works. However, contractors may perform extra works based on invalid instructions or without instructions at all. In such cases, variation provisions might not provide the appropriate remedy. Under the second scenario, employers may overpay contractors to accelerate the works or to overcome the contractor’s cash flow issues. In some contracts, there might be no provision regulating issues of overpayment. In both scenarios, the contractor or the employer may resort to the legal remedy of unjust enrichment.

Most MENA region jurisdictions recognise the doctrine of unjust enrichment or enrichment without cause.[230] Article 179 of the ECC provides that:[231]

Every person, even irrational ones, who is enriched without just cause at the expense of another, shall, to the extent of his/her enrichment, indemnify the other for his loss, such obligation subsists even if the enrichment ceases afterwards.

However, in Egypt, Bahrain, Kuwait, Libya, Qatar, Syria, Jordan and the UAE, an action de in rem verso is barred upon the lapse of three years from the day the party becomes aware of its right to be compensated, or, in all cases, upon the lapse of 15 years from the day of the occurrence of the event.[232] Other MENA region countries have prescribed different limitation periods: five years in Oman,[233] 10 years in Algeria[234] and 15 years in Tunisia.[235]

While as a matter of principle, a claim of unjust enrichment may not, subject to the applicable law, coexist with contractual claims, unjust enrichment may nonetheless be invoked, in the presence of a contract, if the issue of enrichment is not related to the contract or the contract is not the cause of such enrichment. The Egyptian Court of Cassation provides the following enrichment: [236]

Therefore, if a contractual relationship is found between the creditor and the debtor, there would be no place for a claim for unjust enrichment, rather, the contract will be the law that governs the relationship between the parties and provides the rights and obligations of both of them. This means that if the enrichment that happened or the impoverishment that resulted therefrom is not related to the contract concluded between them and is not the basis for that enrichment, this contractual relationship would not prevent the impoverished party to claim unjust enrichment against the enriched party.

In this regard, it was ruled that a party may be able to reimburse the expenses paid or services provided in excess of the maximum contractual limit if the other party benefited from the works associated with those expenses.[237] That said, the conditions of unjust enrichment are generally as follows.

  • Enrichment of the debtor: this condition is fulfilled when the debtor earns a right or witnesses either an increase in its assets[238] or a decrease in its liabilities.[239] Notably, enrichment of the debtor may be caused by either the enriched person or the impoverished person (the debtor) themselves.[240] The enrichment is quantified by reference to the time of its occurrence irrespective of the inflation.[241]
  • Impoverishment of the creditor: the creditor must also suffer a corresponding loss or impoverishment. This happens if the creditor loses existing assets or a benefit, becomes obliged to perform an obligation or does not acquire compensation for services rendered.[242]
  • A causal link: the impoverishment suffered by the creditor and the enrichment realised by the debtor should be connected by a causal link, such that the enrichment would not have happened but for the impoverishment.[243]
  • There shall be no legal cause justifying neither the enrichment nor the impoverishment: this condition is necessary because, if the enriched party had a legal reason justifying the enrichment, such as a contractual clause, tortious liability or an award, there would be no room for unjust enrichment.[244] In the same vein, if the impoverished party is able to claim compensation based on another source of obligation, such as a contract, there would also be no room for unjust enrichment.[245]

If the conditions of unjust enrichment are established, the creditor would be entitled to whichever is lesser: the value of the debtor’s enrichment or the value of the creditor’s impoverishment.[246]

Interest

Interest remains a hot topic in the MENA region legal systems and specifically in the context of construction disputes.

Generally speaking, interest can be claimed for delay or as compensation. However, there are certain specificities when claiming interest in certain MENA region legal systems. This includes the legality and illegality of claiming interest, the applicable rate or rates,[247] whether interest can be compounded, whether interest can be claimed for any debt, the time at which interest starts to accrue and whether the contracting parties are legally permitted to derogate from any applicable statutory regulation of interest.

While an analysis of the specificities referred to above goes beyond the purpose and scope of this chapter, and this section, which focuses exclusively on the applicable statutory interest rates, it suffices to state that the legality, scope and conditions of interest differ significantly across the MENA region jurisdictions. For example, interest is altogether prohibited under Saudi law.

Specifically, in relation to interest rates, the Egyptian and Syrian laws statutory interest rates (in non-banking transactions) vary from 4 per cent per annum in civil matters to 5 per cent per annum in commercial matters,[248] noting that an agreement on an interest rate in excess of 7 per cent is prohibited under the ECC, [249] and in excess of 9 per cent is prohibited under the Syrian Civil Code.[250] Moreover, under Syrian law, if the interest rate is not agreed, then its determination shall be according to the custom and trade usages in commercial matters.[251] Moreover, the Kuwaiti and Bahraini civil codes prohibit agreements on interest in civil law matters.[252] Furthermore, the Qatari, UAE and Omani civil codes uphold the same principles existent in the Kuwaiti and Bahraini civil codes, with the exception that they do not impose the condition of extraordinary harm.[253] In commercial law matters, the Kuwaiti Commercial Code allows for a 7 per cent interest rate on the non-payment of or delay in the payment of commercial debts.[254] It also allows parties to agree to an interest rate that does not exceed the rates published by the Central Bank of Kuwait.[255] The Bahraini Commercial Code also allows for interest rate in commercial matter.[256] The Qatari Commercial Code does not explicitly provide a different statutory approach in commercial matter, yet judgments indicate that interest rate might be upheld in the case of commercial matters by virtue of the commercial custom.[257] The Omani Commercial Code provides that parties may agree on interest subject to the ceiling specified in the pertinent Ministerial decrees.[258] In addition, the UAE Commercial Code provides that in commercial matters, the parties may agree on interest rate, and, in the absence of an agreement, such rate shall be determined according to the rate prevailing in the market during the time of the transaction, which shall not exceed 12 per cent.[259]

Revocation of contracts

In construction contracts, nullity, termination and rescission are legal doctrines that provide a way out for parties in situations where the contract seems to be legally invalid or inoperable or where there seems to be a deadlock in the life of the contract.[260] For instance, the contractor may indefinitely suspend the construction works or elect not to follow certain instructions of the employer; likewise, the employer may order the indefinite stoppage of the works or stop paying any dues under the contract. Also, both parties may simply abandon the contract or may never be able to legally, contractually or factually start performing the contract. In this respect, termination, rescission or nullification may be the appropriate legal remedy, as the case may be, for the party who wants to free itself from such contractual relationships.

In this regard, construction contracts often provide for termination or rescission clauses but rarely provide clauses that regulate the nullity of the contract.[261] Nullity or invalidity in the MENA region jurisdictions may be defined as ending the contract for (1) the failure of one of the pillars of the contract (i.e., the consent (redah) of the parties, the subject matter (mahal) of the contract and the cause (sabab) of the contract) or (2) the failure of one of the contract’s conditions of validity (i.e., the sufficiency of the parties’ capacity and the non-existence of any of the vices of consent).[262] However, termination or rescission (collectively referred to as dissolution) of the contract presupposes that the contract is initially valid, yet one of the parties requests the dissolution thereof (1) because of the failure of the other party to perform its contractual obligations (faskh), (2) because both parties agreed on the dissolution (takayol), or (3) because the law grants one of the parties to unilaterally dissolve the contract.[263] Moreover, while under nullity or invalidity, the contract is nullified retrospectively (as if it has never existed) and parties are restored to the status quo ante; under dissolution the contract does not always have to be rescinded retrospectively.[264]

Generally, in the MENA region jurisdictions, the law may grant employers the right to terminate or rescind the contract for convenience (i.e., before its completion at any time on the condition that it compensates the contractor for its incurred costs, performed services or works and the profits that it may have earned if the works were completed).[265] However, unless the parties agree otherwise, Oman, Jordan and the UAE do not seem to provide for an express legislative right for the employer to terminate the construction contract for convenience, rather it stipulates that, for termination to be valid, there should be an excuse that prevented the terminating party from performance.[266]

Parties may also resort to judicial rescission under construction contracts as well as other contracts if certain conditions under the applicable law are met, noting the court or tribunal’s discretion regarding the assessment of the fulfilment of the conditions for judicial rescission. The parties may also stipulate that termination or rescission may take place without the need for a notice, judicial decision or an arbitral award. In such case, termination or rescission will take place; the party requesting termination or rescission will no longer have to file a termination or rescission action for the termination or rescission to be valid, but will still have to issue a notice to the debtor.[267] Generally, judicial rescission, if awarded, restores the parties to the status quo ante as if the contract has never existed. However, if restoration is not possible, compensation may be awarded instead.[268]

Finally, construction contracts may also be rescinded or terminated by mere operation of the law, which is mainly the case when an impossibility of performance arises in the life of the construction contract.[269] Prof Dr Al Sanhoury opines that rescission or termination due to an impossibility of performance is confined to the case when such impossibility is attributable to an alien cause or a third party, but if the impossibility is attributable to the debtor, the creditor may resort only to judicial rescission or rescission by virtue of the parties’ agreement. However, the explanatory memorandum of the ECC seems to also allow rescission or termination by virtue of law on the basis of impossibility of performance, even if such impossibility is attributed to the debtor.[270]

Concluding remarks

The construction industry in the MENA region is booming and constructions contracts and associated disputes are on the rise,[271] and the majority of construction projects burgeoning throughout the MENA region adopt the FIDIC form of contracts with noticeable proliferation of the FIDIC Red Book form of contract.

However, the business, economic and legal reality confirms the existence of a direct relationship between the proliferation of construction contracts in the MENA region and the increase in construction disputes arising from said contracts. It has been suggested that the top causes of construction disputes in the MENA region include:[272]

  • failure to properly administer a contract;
  • failure to make interim determination of EOT and compensation;
  • employer-imposed change;
  • contract selection was not a ‘best fit’ when compared to the project’s characteristics; and
  • third-party events (force majeure, imprévision, etc.).

Construction contracts are complex agreements and require special expertise to negotiate, draft, prosecute and hear disputes arising therefrom. This complexity is further compounded in the MENA region owing to:

  • certain gaps and possible friction between the agreed terms and conditions and certain applicable civil law principles;
  • the top causes of construction disputes, given above;
  • the outdated legislative regulation of construction contracts in Arab laws;
  • relative (unwarranted) avoidance of the needed in-depth scrutiny of the applicable legal principles;
  • the existence of a bipolar (civil law–administrative law) system existing in certain Arab jurisdictions, which largely affects the characterisation and performance of construction agreements; and
  • prevailing misconceptions on the specificities of the MENA region laws.

It is in this context that the present contribution invites scholars, counsel, judges and arbitrators to carefully scrutinise the applicable civil law principles, so as to ensure that they are capable of proper implementation and adaption to the specificities of construction contracts and disputes. It remains for courts and arbitral tribunals to innovate and safeguard the application of the pertinent legal principles under the governing law regime that may not be ignored, overlooked or weighed under a totally alien legal system that may not be relevant to the applicable laws.

Legal principles in the civil laws of the MENA region are capable of accommodating the specificities and intricacies of the construction industry and catering for the disputes arising thereunder, in due consideration of the fact that arbitration is the prominent dispute resolution mechanism and the most favoured option for settlement of construction-related disputes in the region. It has indeed been seen that the principles of good faith, implied terms, abuse of right, estoppel, global claims, constructive acceleration, force majeure and imprévision, delay damages and decennial liability are among the concepts that are regularly invoked in arbitral proceedings, and so careful consideration as to their possible application and scope is required.

For ease of reference, the summary table below captures the specific construction law sections in Arab laws, as well as the pertinent arbitration legislation.

 EgyptLibyaMoroccoTunisiaOmanKuwaitUAE
Civil Law (Code)131/194819531913190729/201367/19805/1985
Construction provisions646–673645–666723–729 759–780828–834 866–887626–650661–697872–896
Arbitration law/civil procedures27/19941953*1974†42/199347/1997‡38/1980§ 11/1995¶6/2018||
 QatarLebanonAlgeriaJordanSyriaIraqBahrain
Civil Law (Code)22/2004193258/197543/197684/194940/195119/2001
Construction provisions682–715624–628 657–689549–570780–804612–633864–890584–620
Arbitration law/civil procedures2/201790/1983**9/2008††31/2001‡‡4/200883/1969§§9/2015
* Civil Procedures Law, Articles 739–777

† Civil Procedures Law, Articles 306–327

‡ Amended by Law No. 3 of 2007

§ Civil Procedures Law, Articles 173–188

¶ The Judicial Arbitration Law

|| The new Federal Arbitration Law No. 6 of 2018 revoked Articles 203–218 of the Civil Procedures Law No. 11 of 1992

** Civil Procedures Law, Articles 762–821 amended by Law No. 440 of 2002

†† Civil and Administrative Procedures Law, Articles 1006–1061

‡‡ Amended by Law No. 16 of 2018

§§ Civil Procedures Law, Articles 251–276

In specific reference to construction disputes, it is also clear that the International Chamber of Commerce and the London Court of International Arbitration remain the leading arbitral institutions that administer, inter alia, large-scale construction disputes and arbitrations in the MENA region. Other notable regional arbitral institutions are the Bahrain Chamber for Dispute Resolution (BCDR), the Cairo Regional Centre for International Commercial Arbitration (CRCICA), the Dubai International Financial Centre-London Court of International Arbitration (DIFC-LCIA), the Dubai International Arbitration Centre (DIAC), the Abu Dhabi Commercial Conciliation and Arbitration Centre (ADCCAC), Qatar International Centre for Conciliation and Arbitration (QICCA) and the up-and-coming newly established Casablanca International Mediation and Arbitration Centre (CIMAC).

Finally, and in light of the above, given the complex and competitive environment of the construction industry, it is common knowledge that construction projects and contracts offer recipes for disputes no matter how well-drafted such contracts are. In such environment, since differences in perception exist among the participants of the projects, conflicts are inevitable.[273] As explained above, in practice, there are a certain number of common causes for dispute in the construction industry; these are classified into six main categories, as follows.[274]

Category of disputesCauses of disputes
Owner-relatedVariations initiated by the owner
Excessive change of scope
Late giving of possession
Acceleration or suspension of works
Payment delays
Decision-making delays
Financial failure
Site conditions
ConsultantErrors and omission in design
Differing site conditions
Defective design
Excessive quantity variations
Inadequate or incomplete specifications
Contractor-relatedDelays in work progress
Time extensions
Financial failure of the contractor
Technical inadequacy of the contractor
Excessive change orders
Defects in maintenance
Incompetency
Defective construction and quality of works
Subcontractor‘s inefficiency
Contract-relatedAmbiguities in contract documents
Different interpretations of the contract provisions
Risk allocation
Human behaviour-relatedAdversarial or controversial culture
Lack of communication
Lack of team spirit
Unrealistic expectations
External factorsEnvironmental hazards
Unforeseen changes
Market inflation
Labour disputes
Legal and economic factors
Fragmented structure of the sector

Consequently, it is always preferable in the context of construction to adopt measures and techniques for dispute avoidance. In this respect, it is advisable that the contracting parties do the following:

  • carefully select the best-fit contract with proper drafting;
  • acknowledge the need for contractual balance;
  • engage in proper and careful choice of law and forum;
  • maintain a high-level team with sensible contract administration and implementation;
  • maintain efficient policies for documentation, correspondences, records and claims;
  • scrutinise legal and factual rights and follow procedures;
  • evaluate and share risks;
  • consider the proper utilisation of dispute avoidance and adjudication boards; and
  • opt for amicable settlement options prior to proceeding with fully fledged arbitration proceedings.

Notes

[1] Mohamed S Abdel Wahab is a founding partner at Zulficar & Partners Law Firm.

[2] The region is witnessing large-scale infrastructure projects and international events such as Qatar’s 2022 World Cup, the Dubai World Expo 2020, Egypt’s New Administrative Capital, Jeddah Tower, which is set to be the tallest skyscraper in the world, the Grand Egyptian Museum, which is set to be the largest archaeological museum in the world and Egypt’s Rod al-Farag Axis Bridge, which is ranked as the world’s widest cable-stayed bridge, as well as airports, metro lines, monorails, bullet trains, oil processing factories and mega power generation plants.

[3] See M Allen, ‘Global Construction Disputes: A Longer Resolution’, Global Construction Dispute Report (2013), p. 2: ‘the Middle East still experienced the largest disputes at of an average US$65 million’; M A M Ismail and R A Koura, ‘International Construction Contracts Arbitration in the MENA Region’, (2015), p. xiii.

[4] See Arcadis, ‘Global Construction Disputes Report 2017: Don’t Get Left Behind’, p. 24, available at: www.arcadis.com/media/C/9/C/%7BC9C32C0C-34CD-4D6D-8B12-083EE0349170%7DGlobal%20Construction%20Disputes%202018.pdf.

[5] See, for example, Article 148/1 Egyptian Civil Code (ECC) (1948), Article 107/1 Algerian Civil Code (1975), Article 129 Bahraini Civil Code (2001), Article 197 Kuwaiti Civil Code (1980), Article 148 Libyan Civil Code (1953), Article 172 Qatari Civil Code (2004), Article 149 Syrian Civil Code (1949), Article 202 Jordanian Civil Code (1976), Article 246 UAE Civil Code (1985), Article 231 Moroccan Code of Obligations and Contracts (1913), Article 221 Lebanese Code of Obligations and Contracts (1932) and Article 243 Tunisian Code Obligations and Contracts (1907).

[6] See, for example, Article 148/2 ECC, Article 107 Algerian Civil Code (1975), Article 127 Bahraini Civil Code (2001), Article 195 Kuwaiti Civil Code (1980), Article 148 Libyan Civil Code (1953), Article 156 Omani Civil Code (2013), Article 172 Qatari Civil Code (2004), Article 149 Syrian Civil Code (1949), Article 202 Jordanian Civil Code (1976), Article 246 UAE Civil Code (1985), Article 231 Moroccan Code of Obligations and Contracts (1913) and Article 243 Tunisian Civil Code (1907).

[7] See, for example, Article 5 ECC, Article 124 bis Algerian Civil Code (1975), Article 28 Bahraini Civil Code (2001), Article 30 Kuwaiti Civil Code (1980), Article 5 Libyan Civil Code (1953), Article 59 Omani Civil Code (2013), Article 63 Qatari Civil Code (2004), Article 6 Syrian Civil Code (1949), Article 66 Jordanian Civil Code (1976), Article 106 UAE Civil Code (1985), Article 49 Moroccan Code of Obligations and Contracts (1913), Article 123 Lebanese Code of Obligations and Contracts (1932) and Article 103 Tunisian Code of Obligations and Contracts (1907).

[8] See, for example, Article 224 ECC, Article 184 Algerian Civil Code (1975), Article 226 Bahraini Civil Code (2001), Article 303 Kuwaiti Civil Code (1980), Article 226 Libyan Civil Code (1953), Article 267 Omani Civil Code (2013), Article 266 Qatari Civil Code (2004), Article 225 Syrian Civil Code (1949), Article 364 Jordanian Civil Code (1976), Article 390 UAE Civil Code (1985) and Article 266 Lebanese Code of Obligations and Contracts (1913).

[9] See, for example, Article 147/2 ECC, Article 107 Algerian Civil Code (1975), Article 130 Bahraini Civil Code (2001), Article 198 Kuwaiti Civil Code (1980), Article 147(2) Libyan Civil Code (1953), Article 159 Omani Civil Code (2013), Article 171 Qatari Civil Code (2004), Article 148 Syrian Civil Code (1949), Article 249 UAE Civil Code (1985) and Article 282 Tunisian Code of Obligations and Contracts (1907).

[10] See, for example, Article 373 ECC, Article 307 Algerian Civil Code (1975), Article 364 Bahraini Civil Code (2001), Article 437 Kuwaiti Civil Code (1980), Article 360 Libyan Civil Code (1953), Article 339 Omani Civil Code (2013), Article 402 Qatari Civil Code (2004), Article 371 Syrian Civil Code (1949), Article 472 UAE Civil Code (1985), Article 341 Lebanese Code of Obligations and Contracts (1932) and Article 282 Tunisian Code of Obligations and Contracts (1907).

[11] See for example, Article 157 ECC; Article 119 Algerian Civil Code (1975), Article 140 Bahraini Civil Code (2001), Article 192 Kuwaiti Civil Code (1980), Article 159 Libyan Civil Code (1953), Article 171 Omani Civil Code (2013), Article 272 UAE Civil Code (1985), Article 254 Moroccan Code of Obligations and Contracts (1913), Article 260 Lebanese Code of Obligations and Contracts and Article 268 Tunisian Code of Obligations and Contracts (1907).

[12] See, for example, Article 651 ECC, Article 554 Algerian Civil Code (1975), Article 615 Bahraini Civil Code (2001), Article 692 Kuwaiti Civil Code (1980), Article 650 Libyan Civil Code (1953), Article 634 Omani Civil Code (2013), Article 711 Qatari Civil Code (2004), Article 617 Syrian Civil Code (1949), Article 788 Jordanian Civil Code (1976), Article 880 UAE Civil Code (1985), Article 769 Moroccan Code of Obligations and Contracts (1913), Article 668 Lebanese Code of Obligations and Contracts (1932) and Article 876 Tunisian Code of Obligations and Contracts (1907). However, Tunisia and Lebanon only provide for a five-year term liability.

[13] Richard Ward, Nasser Ali Khasawneh, Gurmeet Kaur, Mohamed Khanaty and Fahad AlDehais, ‘Construction Arbitration in the Middle East’, available at https://globalarbitrationreview.com/chapter/1139765/construction-arbitration-in-the-middle-east, published on 19 April 2017.

[14] M Grose, Construction Law in the United Arab Emirates and the Gulf, Wiley (2016), p. 6.

[15] www.fidic.org/sites/default/files/FIDIC%20in%20the%20Middle-East.pdf. The public sector has adopted and modified to some extent the FIDIC forms of contract in countries such as Algeria, Tunisia, Iraq, Oman, Qatar, Saudi Arabia and Kuwait. Furthermore, international institutions such as the World Bank have adopted the FIDIC conditions when entering into contracts with MENA countries to fund engineering and infrastructure projects. See generally www.worldbank.org. See also M Bell, ‘Will the Silver Book become the World Bank’s new gold standard? The interrelationship between the World Bank’s procurement policies and FIDIC construction contracts’, International Construction Law Review (2004), p. 164.

[16] Cited by Abd El-Wahab Ibrahim Abo Soliman and Mohamed Ibrahim Ahmed Ali, the editors of Ahmed Abd Allah Al-Kary, Majalat Elahkam Elshareya, Third edition, Matbo’at Tohama (2005), pp. 27 and 31.

[17] Article 1 Algerian Civil Code (1975), Article 1(1) Bahraini Civil Code (2001), Article 1(1) Kuwaiti Civil Code (1980), Article 1(1) Libyan Civil Code (1953), Article 1 Omani Civil Code (2013), Article 1(1) Qatari Civil Code (2004), Article 1(1) Syrian Civil Code (1949), Article 2(1) Jordanian Civil Code (1976), Article 1 UAE Civil Code (1985).

[18] Article 1(1) ECC.

[19] Prof Dr A Al Sanhoury and Dr A Abosteet, The Principles of Law or the Introduction to the Study of Law (1950), p. 241, Prof Dr S Tanagho, The General Theory of Law (undated), p. 759.

[20] Prof Dr Mohamed S Abdel Wahab, ‘The Egyptian Court of Cassation Sets Standards and Affirms Arbitration-Friendly Principles and Trends in a Ground-Breaking Judgment’, available at: http://arbitrationblog.kluwerarbitration.com/2020/12/22/the-egyptian-court-of-cassation-sets-standards-and-affirms-arbitration-friendly-principles-and-trends-in-a-ground-breaking-judgment/, published on 22 December 2020 and Egyptian Court of Cassation, Challenge No. 18309 of judicial year 89, hearing session dated 27 October 2020.

[21] Article 1(2) ECC, Article 1 Algerian Civil Code (1975), Article 1(2) Bahraini Civil Code (2001), Article 1(2) Kuwaiti Civil Code (1980), Article 1(2) Libyan Civil Code (1953), Article 1 Omani Civil Code (2013), Article 1(2) Syrian Civil Code (1949), Article 2(2) Jordanian Civil Code (1976) and Article 1 UAE Civil Code (1985).

[22] J Bailey, Construction Law, Routledge (2011), p. 131 [3.20].

[23] On 5 December 2017, the International Federation of Consulting Engineers (FIDIC) published the second edition of its Rainbow Suite of contracts. See http://fidic.org/sites/default/files/press%20release_rainbow%20suite_2018_03.pdf.

[24] The principle of good faith forms part of the Islamic shariah principles, where the maxim that ‘no harm and no reciprocated harm’ unequivocally remains a fundamental tenet in a contractual and non-contractual relationships. Prof Dr Mohamed S Abdel Wahab, ‘Reflections on the Principle of Good Faith: Variants Derivatives and Related Issues in MENA Region Jurisdictions’, published in New York Dispute Resolution Lawyer (a publication of the Dispute Resolution Section of the New York State Bar Association), Spring 2020, Volume 13, No. 1, p. 30.

[25] See, for example, Article 148 ECC, which provides that: ‘1. A contract shall be performed in accordance with its content and in a manner consistent with the requirements of good faith.’ This provision has been reproduced and included in the law of other Arab States such as Article 246 UAE Civil Code, Article 172 Qatari Civil Code and Article 197 Kuwaiti Civil Code.

[26] See, for example, Article 217 ECC, which provides that: ‘2. It is also permissible to agree to exempt a debtor from any liability arising out of his non-performance of his contractual liability except those that arise out of fraud [bad faith] or gross negligence . . . ,’ see also, for example, Article 259 Qatari Civil Code (2004), Article 290 Kuwaiti Civil Code (1980), Article 224 Libyan Civil Code (1953) and Article 261 Omani Civil Code (2013).

[27] See Mahmoud Khayal, The General Theory of Obligation under Qatari Law, Volume 1 (2015), pp. 248–249.

[28] See R Karim, Negotiating the Contract, First edition (2000), pp. 416–417, also see R R Abdel Rahman Sheikh, The Consequences of Bad Faith in Bilateral Contracts in Civil Law (2015), p. 65.

[29] See R Karim, Negotiating the Contract, First edition (2000), pp. 424, 426, 428, where the author states: ‘In order to act in good faith, the negotiating party shall disclose information to the other party in full transparency without any dissimulation, and without keeping the latter deceived by a matter known by the former. He/She shall inform the other party of all acquired information without concealment or hiding as long as such information is important for the purpose of contracting in order to ensure that the negotiations are based on transparency and sincerity.’

[30] Most importantly, the duty to negotiate in transparency and to offer advice is derived from Islamic shariah, which binds a negotiating party to enlighten [inform] the other party of the reality of the subject matter of negotiation and disclose its vices before its benefits: See R Karim, Negotiating the Contract, First edition (2000), pp. 474–475.

[31] See Prof Dr S Morkos, El Wafi in the Explanation of Civil Law, Volume 2 (1992), p. 236.

[32] See the principle set by the Arbitral Award dated 2 November 2014, CRCICA Case No. 732 of judicial year 2011, Journal of Arab Arbitration, Volume XXIII December 2014, p. 379.

[33] More specifically, acting in good faith necessitates the consideration of honesty, moderation and care so that the performance of the contracts does not adversely impact the interests of the other party. See Prof Dr S Morkos, El Wafi in the Explanation of Civil Law, Volume 2, Fourth edition (1987) p. 509.

[34] For example, where a contractor has a choice to perform a task in a simpler and more cost-effective manner (without compromising on quality and standards) but chooses to engage in a more costly performance; and where a contractor is expected to connect the power cords from a nearby place but elects to connect same from further away. See M A Bakry, The Encyclopaedia of Doctrine, Judiciary, and Legislations in the New Civil Code, Volume 2 (1985), p. 622.

[35] See Egyptian Court of Cassation, Challenge No. 3473 of judicial year 75, hearing session dated 27 April 2006.

[36] Under Egyptian law, a party who had committed, in the performance of its contract, an act of wilful misconduct or fraud is considered to be acting in bad faith, regardless of its real intentions. See A Tolba, Explanation of Civil Law, Volume 1 (2010), p. 747.

[37] See Tunisian Court of Cassation, Challenge No. 7461 of judicial year 2005, hearing session dated 4 April 2005.

[38] See footnote 36.

[39] See ibid.

[40] See Mohamed Kamal Abd AlAziz, The Civil Code in Light of the Jurisprudence and Doctrine, Volume 1 (1985), pp. 79–80.

[41] See Egyptian Court of Cassation, Challenges Nos. 4726 and 4733 of judicial year 71, hearing session dated 15 April 2004.

[42] By way of illustration, this would be the case for a contractor that chooses to perform its obligations by using unnecessary expensive material within its possession, to dispose of the same at the expense of the employer. See footnotes 38 and 42.

[43] See Case No. 310/2003. Extract from final award dated 8 August 2005, cited by Mohi-Eldin Ismail Alam-Eldin, ‘Construction Arbitral Awards Rendered Under the Auspices of CRCICA’ (2010), p. 5.

[44] See Egyptian Supreme Administrative Court, Challenge No. 1226 of judicial year 35, hearing session dated 23 April 1996. See also Egyptian Supreme Administrative Court, Challenge No. 303 of judicial year 48, hearing session dated 7 March 2006. See also State Council, General Assembly for Advice and Legislation, Opinion No. 793, dated 26 April 2017. Moreover, the General Assembly of Advice and Legislation of the Egyptian State Council concluded in one of its opinions that good faith is a prevailing principle in all contracts whether in the context of determination of its subject matter or the manner of its performance. See State Council, General Assembly for Advice and Legislation, Opinion No. 402, dated 7 June 2007. See also State Council, General Assembly for Advice and Legislation, Opinion No. 11, dated 11 January 2014 and Libyan Supreme Court, Challenge No. 19 of judicial year 23, hearing session dated 26 October 1978.

[45] See Walid S Morsey, The Binding Power of a Contract and the Exceptions therewith a comparative study between Islamic jurisprudence and Civil Law (2009), p. 265.

[46] See Mohi-Eldin Ismail Alam-Eldin, ‘Construction Arbitral Awards Rendered under the Auspices of CRCICA’, Case No. 43/1995 dated 15 November 1995, p. 228 et seq.

[47] See Egyptian Court of Cassation, Challenge No. 3473 of judicial year 75, hearing session dated 27 April 2006 and Challenge No. 163 of judicial year 32, hearing session dated 15 November 1966. See also Dubai Cassation Court, Challenge No. 298 of judicial year 2008, hearing session dated 5 April 2009.

[48] See Egyptian Cassation Court, Challenge No. 811 of judicial year 43, hearing session dated 16 June 1977, Challenge No. 323 of judicial year 37, hearing session dated 9 May 1972 and Challenge No. 210 of judicial year 70, hearing session dated 18 April 2012. See also Kuwaiti Court of Cassation, Challenge No. 914 of judicial year 2011, hearing session dated 10 December 2012.

[49] See Prof Dr A Al Sanhoury, Al Wasit in the Explanation of the Civil Code, Volume 7 (2010), pp. 122–123.

[50] Furthermore, it is established that the employer shall issue the required licences within a reasonable time so that completion is not delayed. If the employer is required to submit the construction material or equipment, it shall do this within a reasonable time to allow the contractor to complete the works. If the works shall be performed according to the drawings or data provided by the employer, the latter shall submit the same within the contractually agreed period or within a reasonable time. See footnote 49, p. 123.

[51] Articles 148, 150 and 151 ECC, Articles 111 and 112 Algerian Civil Code (1975), Articles 59, 125 and 126 Bahraini Civil Code (2001), Articles 82, 193 and 194 Kuwaiti Civil Code (1980), Articles 152 and 153 Libyan Civil Code (1953), Articles 165 and 166 Omani Civil Code (2013), Articles 169 and 170 Qatari Civil Code (2004), Articles 151 and 152 Syrian Civil Code (1949), Articles 213 to 240 Jordanian Civil Code (1976), Articles 257 to 267 UAE (1985), Articles 461 to 473 Moroccan Code of Obligations and Contracts (1913), Articles 366 to 371 Lebanese Code of Obligations and Contracts (1932) and Articles 513 to 531 Tunisian Code of Obligations and Contracts (1907).

[52] See, for example, Egyptian Court of Cassation, Challenge No. 498 of judicial year 4, hearing session dated 29 June 1963, Omani Court of Cassation Challenge No. 147 of judicial year 1995, hearing session dated 14 January 1996 and Kuwaiti Court of Cassation Challenge No. 1093 of judicial year 2002, hearing session dated 6 March 2007.

[53] See, for example, Egyptian Court of Cassation No. 1735 of judicial year 80, hearing session dated 10 July 2012, Bahraini Court of Cassation Challenge No. 129 of judicial year 2014, hearing session dated 10 January 2017, Kuwaiti Court of Cassation Challenge No. 1016 of judicial year 2005, hearing session dated 7 January 2007 and Qatari Court of Cassation Challenge No. 323 of judicial year 2014, hearing session dated 17 February 2015.

[54] See Prof Dr A Al Sanhoury, Al Wasit in the Explanation of the Civil Code, Volume 1 (2010 edition), pp. 504–505.

[55] See, for example, Egyptian Court of Cassation Challenge No. 2220 of judicial year 69, hearing session dated 26 June 2018, Egyptian Court of Cassation, Challenge No. 394 of judicial year 31, hearing session dated 9 June 1966 and Qatari Court of Appeal Challenge No. 14 of judicial year 1989, hearing session dated 2 June 1989.

[56] See, for example, Egyptian Court of Cassation, Challenge No. 169 of judicial year 37, hearing session dated 7 May 1974; see also, Qatari Court Cassation Challenge No. 5 of judicial year 2012, hearing session dated 20 March 2012, Qatari Court Cassation Challenge 237 of judicial year 2011, hearing session dated 20 March 2012 and Qatari Court Cassation Challenge 81 of judicial year 2011, hearing session dated 16 June 2011.

[57] See Article 464 Moroccan Code of Obligations and Contracts (1913), Article 368 Lebanese Code of Obligations and Contracts (1932) and Articles 516 and 517 Tunisian Code Tunisian Code of Obligations and Contracts (1907).

[58] Egyptian Court of Cassation, Challenge No. 169 of judicial year 37, hearing session dated 7 May 1974, where the Court held that contractual provisions supplement and interpret each other.

[59] See Qatari Court Cassation Challenge No. 41 of judicial year 2011, hearing session dated 25 October 201, Egyptian Court of Cassation Challenge No. 5660 of judicial year 65, hearing session dated 27 June 2006 and Kuwaiti Court of Cassation Challenge No. 1093 of judicial year 2002, hearing session dated 6 March 2007.

[60] See, for example, Qatari Court Cassation Challenge 36 of judicial year 2008, hearing session dated 13 May 2008.

[61] See Prof Dr A Al Sanhoury, Al Wasit in the Explanation of the Civil Code, Volume 1 (2010 edition), p. 520; Qatari Court Cassation Challenge No. 323 of judicial year 2014, hearing session dated 17 February 2015.

[62] See, for example, Article 150 ECC, Article 111 Algerian Civil Code (1975), Article 125 Bahraini Civil Code (2001), Article 193 Kuwaiti Civil Code (1980), Article 152 Libyan Civil Code (1953), Article 165 Omani Civil Code (2013), Article 169 Qatari Civil Code (2004), Article 151 Syrian Civil Code (1949), Article 239 Jordanian Civil Code (1976), Article 265 UAE Civil Code (1985), Article 463 Moroccan Code of Obligations and Contracts (1913) and Article 371 Lebanese Code of Obligations and Contracts (1932).

[63] See Soliman Morkos, Al Wafy on Explanation of Civil Law. Obligations – Theory of Contract and Individual Will, Volume 2 (1987 edition), p. 492.

[64] ibid.

[65] See, for example, Article 225 Jordanian Civil Code (1976), Article 264 UAE Civil Code (1985) and Article 463 Moroccan Code of Obligations and Contracts (1913).

[66] Article 150 ECC, Article 111 Algerian Civil Code (1975), Article 125 Bahraini Civil Code (2001), Article 193 Kuwaiti Civil Code (1980), Article 152 Libyan Civil Code (1953), Article 165 Omani Civil Code (2013), Article 169 Qatari Civil Code (2004), Article 151 Syrian Civil Code (1949) and Article 371 Lebanese Code of Obligations and Contracts (1932).

[67] See, for example, Article 1(2) ECC, Article 1 Algerian Civil Code (1975), Article 1(2) Bahraini Civil Code (2001), Article 1(2) Kuwaiti Civil Code (1980), Article 1(2) Libyan Civil Code (1953), Article 1 Omani Civil Code (2013), Article 1(2) Syrian Civil Code (1949), Article 2(2) Jordanian Civil Code (1976) and Article 1 UAE Civil Code (1985).

[68] See Articles 257 to 266 UAE Civil Code (1985), Articles 213 to 240 Jordanian Civil Code (1976) and Articles 513 to 531 Tunisian Code of Obligations and Contracts (1907).

[69] Article 3 of Majalet Al-Ahkam Al-Adliya issued by the Ottoman Empire in 1877 AD, cited in E Hwaweni, Al-Majalah: Jamaa Al-Adella Ala Mawad Al-Majallah (The Compilation of the Proofs of the Articles of the Majallah), Al-Matbaa Al-Sharkiya Belhadath (1905), p. 19, Article 258 UAE Civil Code (1985), Article 214 Jordanian Civil Code (1976) and Article 515 Tunisian Code of Obligations and Contracts (1907).

[70] Article 12 of Majalet Al-Ahkam Al-Adliya issued by the Ottoman Empire in 1877 AD, cited in footnote 69, p. 19; Mr Justice A Hedar, Dorar Al-Ahkam fe Sharh Majalat Elahkam (The Pearls of Judgements in the Explanation of Majalat Al-Ahkam), Volume I, special edition, translated by Fahy El-Hussieny (2003), p. 30; Dr Abdel Karim Zidan, Introduction to the Study of Islamic Sharīah, First edition, Al-Resala Nasheron Institution (2005), p. 11 and Article 519 Tunisian Code of Obligations and Contracts (1907).

[71] Article 13 of Majalet Al-Ahkam Al-Adeyla issued by the Ottoman Empire in 1877 AD, cited in footnote 69, p. 20, Mr Justice A Hedar, Dorar Al-Ahkam fe Sharh Majalat Elahkam (The Pearls of Judgements in the Explanation of Majalat Al-Ahkam), Volume I, special edition, translated by Fahy El-Hussieny (2003), p. 31; Dr Abdel Karim Zidan, Introduction to the Study of Islamic Sharīah, First edition, Al-Resala Nasheron Institution (2005), p. 21, Article 259 UAE Civil Code (1985), Article 215 Jordanian Civil Code (1976) and Article 519 Tunisian Code of Obligations and Contracts (1907).

[72] Article 61 of Majalet Al-Ahkam Al-Adeyla issued by the Ottoman Empire in 1877 AD, cited in footnote 72, p. 27, Dr Abdel Karim Zidan, Introduction to the Study of Islamic Sharīah, First edition, Al-Resala Nasheron Institution (2005), p. 13, Article 258 UAE Civil Code (1985), Article 214 Jordanian Civil Code (1976) and Article 519 Tunisian Code of Obligations and Contracts (1907).

[73] Article 60 of Majalet Al-Ahkam Al-Adeyla issued by the Ottoman Empire in 1877 AD, cited by Ezzetlo Naguib Bek Hwaweni, Al-Majalah: Jamaa Al-Adella Ala Mawad Al-Majallah (The Compilation of the Proofs of the Articles of the Majallah), Al-Matbaa Al-Sharkiya Belhadath (1905), p. 27; Dr Abdel Karim Zidan, Introduction to the Study of Islamic Sharīah, First edition, Al-Resala Nasheron Institution (2005), p. 15, Article 260 UAE Civil Code (1985), Article 216 Jordanian Civil Code (1976) and Article 518 Tunisian Code of Obligations and Contracts (1907).

[74] Article 67 of Majalet Al-Ahkam Al-Adeyla issued by the Ottoman Empire in 1877 AD, cited by E Hwaweni, Al-Majalah: Jamaa Al-Adella Ala Mawad Al-Majallah (The Compilation of the Proofs of the Articles of the Majallah), Al-Matbaa Al-Sharkiya Belhadath (1905), p. 28.

[75] Article 64 of Majalet Al-Ahkam Al-Adeyla issued by the Ottoman Empire in 1877 AD, cited by E Hwaweni, Al-Majalah: Jamaa Al-Adella Ala Mawad Al-Majallah (The Compilation of the Proofs of the Articles of the Majallah), Al-Matbaa Al-Sharkiya Belhadath (1905), p. 27; Dr Abdel Karim Zidan, Introduction to the Study of Islamic Sharīah, First edition, Al-Resala Nasheron Institution (2005), p. 25, Article 262 UAE Civil Code (1985) and Article 218 Jordanian Civil Code (1976).

[76] See Prof Dr S Morkos, El Wafi in the Explanation of Civil Law, Volume 2 (1987), pp. 502–503. See Mohamed Kamal Abd AlAziz, The Civil Code in Light of the Jurisprudence and Doctrine, Volume 1 (1985), p. 428.

[77] See Article 107 Algerian Civil Code (1975), Article 127 Bahraini Civil Code (2001), Article 195 Kuwaiti Civil Code (1980), Article 148 Libyan Civil Code (1953), Article 156 Omani Civil Code (2013), Article 172 Qatari Civil Code (2004), Article 149 Syrian Civil Code (1949), Article 246 UAE Civil Code (1985), Article 231 Moroccan Code of Obligations and Contracts (1913) and Article 243 Tunisian Code of Obligations and Contracts (1907).

[78] See Prof Dr S Morkos, El Wafi in the Explanation of Civil Law, Volume 2 (1987), p. 503.

[79] Egyptian Cassation Court, Challenge No. 3099 of judicial year 72, hearing session dated 24 December 2003.

[80] See Prof Dr A Al Sanhoury, Al Wasit in the Explanation of the Civil Code, Volume 1 (2010), p. 533.

[81] See Petruzzino, Chapter II: ‘The Arbitrator and The Arbitration Procedure, Relevance and Applicability of Trade Usages in International Arbitration’, p. 191, in Klausegger, Klein et al. (eds), Austrian Yearbook on International Arbitration, 2017; Abuka and Edward, ‘Nigeria: Construction & Engineering Laws and Regulations 2020’, ICLG blog, 2020, https://iclg.com/practice-areas/construction-and-engineering-law-laws-and-regulations/nigeria.

[82] Trade usage may be incorporated by law into contracts as is the case in Egypt in relation to commercial matters where trade usage becomes applicable if the issue is not governed by the contract, commercial laws or custom as per Article 2 of the Egyptian Commercial Code (1999).

[83] See footnote 81, p. 180.

[84] id. at p. 191.

[85] id. at p. 180.

[86] ibid.

[87] Egyptian Court of Cassation, Challenge No. 18309 of judicial year 89, hearing session dated 27 October 2020.

[88] See also, for example, Article 177 Algerian Civil Code (1975), Article 217 Bahraini Civil Code (2001), Article 234 Kuwaiti Civil Code (1980), Article 219 Libyan Civil Code (1953), Article 177 Omani Civil Code (2013), Article 257 Qatari Civil Code (2004), Article 217 Syrian Civil Code (1949), Article 264 Jordanian Civil Code (1976), Article 290 UAE Civil Code (1985), Article 282 Tunisian Code of Obligations and Contracts (1907), Article 268 Moroccan Code of Obligations and Contracts (1913) and Article 135 Lebanese Code of Obligations and Contracts (1932).

[89] See Egyptian Court of Cassation Challenges Nos. 1859, 2444 and 2447 of judicial year 70, hearing session dated 12 June 2001, Qatari Court of Cassation Challenge No. 8 of judicial year 2012, hearing session dated 27 March 2012 and Egyptian Court of Cassation Challenge No. 152 of judicial year 41, hearing session dated 26 April 1980: ‘A wrongdoer may neither shift to others the consequences of his wrongdoing, whether his fault was fraud or negligence, nor may he benefit from his fault vis-à-vis others, even if the other was in return a wrongdoer.’

[90] See Prof Dr A Al Sanhoury, Al Wasit in the Explanation of the Civil Code, Volume 1 (1998), pp. 809–822.

[91] See Egyptian Court of Cassation, Challenge No. 443, judicial year 51, hearing session dated 12 June 1989.

[92] See Qatari Court of Cassation, Challenge No. 176 of judicial year 2013, hearing session dated 7 January 2014. See Egyptian Cassation Court, Challenge No. 253 of judicial year 74, hearing session dated 25 December 2012.

[93] Article 4 ECC provides that: ‘Whoever legitimately exercises its rights is not responsible for the harm resulting therefrom.’

[94] Article 5 ECC provides that: ‘The exercise of a right shall be illicit in the following cases: (a) if it is only intended to harm a third party, (b) if the pursued interests pursued are of minor importance, so that they are significantly disproportionate to the harm sustained by the other(s) as a result thereof, (c) if the pursued interests are illegitimate.’ Article 63 Qatari Civil Code (2004) and Article 30 Kuwaiti Civil Code (1980) added to the ECC’s criteria: ‘if the exercise of a right would cause outrageous unfamiliar harm’. Article 66 Jordanian Civil Code (1976) and Article 59 Omani Civil Code (2013) added to the ECC’s criteria: ‘if the exercise of a right exceeds customs and habit’. Article 104 UAE Civil Code (1985) also adds that the exercise of a right is abusive (1) if it exceeds the bounds of usage and custom, and (2) if it contradicts Islamic shariah principles, laws, public policy or morals. Article 103 Tunisian Code of Obligations and Contracts (1907) and Article 49 Moroccan Code of Obligations and Contracts (1913) provide for only one criterion: ‘[i]f exercising that right may cause outrageous harm to a third party whilst it is possible to avoid such injury or remedy same without causing significant injury to the right holder, civil liability would arise if the person does not do what needs to be done to prevent or stop the injury from happening’. Article 123 Lebanese Code of Obligations and Contracts (1932) provides two criteria: ‘compensation is also payable by whomever injures others by exceeding, while exercising one’s right, the boundaries of good faith or the purpose for which the right was granted.’

[95] See Mohamed Kamal Abd AlAziz, The Civil Code in Light of the Jurisprudence and Doctrine, Volume 1 (1985), pp. 79–80.

[96] See Prof Dr A Al Sanhoury, Al Wasit in the Explanation of the Civil Code, Volume 1 (2010), pp. 761–762.

[97] Mohamed Kamal Abd AlAziz, The Civil Code in Light of the Jurisprudence and Doctrine, Volume 1 (1985), p. 83, citing the Preparatory Works of the ECC.

[98] See Prof Dr A Al Sanhoury, Al Wasit in the Explanation of the Civil Code, Volume 2 (1998), pp. 758–759.

[99] See id. at p. 761.

[100] See Egyptian Court of Cassation, Challenge No. 22 of judicial year 46, hearing session dated 25 April 1981. See also Egyptian Cassation Court, Challenge No. 1238 of judicial year 56, hearing session dated 24 March 1991.

[101] See Egyptian Court of Cassation, Challenge No. 76 of judicial year 73, hearing session dated 13 March 2007. See also Egyptian Court of Cassation, Challenge No. 171 of judicial year 20, hearing session dated 17 April 1952. See also Kuwaiti Court of Appeal, Appeal No. 14 of judicial year 87, hearing session dated 16 November 1987. See also Dubai Court of Cassation, Challenge No. 66 of judicial year 2007, hearing session dated 20 May 2007.

[102] See Kuwaiti Court of Cassation, Challenges Nos. 59, 64, 65 and 71 of judicial year 1995, hearing session dated 12 December 1995. In this regard, the Kuwaiti Court of Cassation held that: ‘the principle of fraus omnia corrumpit . . . is founded on moral and social considerations combating fraud, deceit and cheating, as well as considerations of non-deviation from the principle of good faith that should be generally upheld in transactions and dealings in order to safeguard the interests of people and the society. The court deciding the dispute enjoys the discretion to infer satisfaction of elements of fraud from the facts supporting it . . . In this regard, the Explanatory Memorandum has elaborated that good faith and honorable dealing invalidate a contract not only with regard to its content, but also with regard to its means of performance. This is indeed in application of the principle entailing that ‘a person attempting to revoke what has been endorsed thereby shall be barred from succeeding in this attempt’. See also Cairo Court of Appeal, Challenge Nos. 35, 41, 44 and 45 of judicial year 129, hearing session dated 5 February 2013: ‘In Arbitration practice, in compliance with the overarching principle of good faith, prevailing in the commercial arena, the ‘Estoppel’ doctrine has become fortified and well-vested. According to the said doctrine, it is possible to frustrate an opponent’s efforts to benefit from its contradicting statements, behavior, and legal positions in order to acquire privileges to the disadvantage of its counterparty. The aforementioned principle – noting the different classification according to the legal system in application – has become explicitly and directly applied, and even a rule of thumb, as one of the primary legal principles, which may not be disregarded or denied, or else this shall be a serious encroachment on the values of justice, which any community considers indispensable.’

[103] ibid.

[104] See Egyptian Court of Cassation, Challenge No. 18309 of judicial year 89, hearing session dated 27 October 2020.

[105] See UAE Court of Cassation, Challenge No. 87 of judicial year 27, hearing session dated 26 June 2006.

[106] See Saudi Court of Cassation, Challenge No. 112 of judicial year 3, hearing session dated 7 December 2009.

[107] Walid S Morsey, ‘The Binding Power of a Contract and the Exceptions therewith: a comparative study between Islamic jurisprudence and Civil Law’ (2009), pp. 570 and 653.

[108] e.g., a contractor who undertakes to cover the road with asphalt would be totally released from liability if the defect in the asphalt was owing to a sudden drop to the ground. See Prof Dr Al Al Sanhoury, Al Wasit in the Explanation of the Civil Code, Volume 7 (2010), p. 115.

[109] Article 373 ECC states: ‘An obligation is extinguished if the debtor establishes that its performance has become impossible by reason of causes beyond his control.’ Similar provisions can be found under Article 307 Algerian Civil Code (1975), Article 364 Bahraini Civil Code (2001), Article 437 Kuwaiti Civil Code (1980), Article 360 Libyan Civil Code (1953), Article 339 Omani Civil Code (2013), Article 402 Qatari Civil Code (2004), Article 371 Syrian Civil Code (1949), Article 472 UAE Civil Code (1985) and Article 282 Tunisian Code of Obligations and Contracts (1907).

[110] Article 147(2) ECC states: ‘If, however, as a result of exceptional and unforeseen events of a general character, the performance of the contractual obligation, though not impossible, becomes excessively onerous in such a way as to threaten the debtor with exorbitant loss, the judge may, according to the circumstances, and after weighing the interests of both parties, reduce the onerous obligation to reasonable limits. Any agreement to the contrary is void.’ Similar provisions could be found under Article 107 Algerian Civil Code (1975), Article 130 Bahraini Civil Code (2001), Article 198 Kuwaiti Civil Code (1980), Article 147(2) Libyan Civil Code (1953), Article 159 Omani Civil Code (2013), Article 171 Qatari Civil Code (2004), Article 148 Syrian Civil Code (1949) and Article 249 UAE Civil Code (1985).

[111] See Article 567 Algerian Civil Code (1975), Article 608 Bahraini Civil Code (2001), Article 685 Kuwaiti Civil Code (1980), Article 663 Libyan Civil Code (1953), Article 646 Omani Civil Code (2013), Article 704 Qatari Civil Code (2004), Article 630 Syrian Civil Code (1949) and Article 892 UAE Civil Code (1985). The FIDIC Red Book, which had its origin in the common law system, used the doctrine of ‘Frustration’ until its fourth edition when Clause 66 was renamed ‘Release from Performance’. In its 1999 edition, FIDIC shifted to the civil law concept of force majeure. In 2008, FIDIC abandoned both concepts in favour of having these events identified as exceptional risks in its Gold Book. In its new 2017 edition, and in line with the development introduced under the Gold Book, FIDIC changed the terminology to ‘Exceptional Event’, enshrined under Clause 18. See http://fidic.org/sites/default/files/press%20release_rainbow%20suite_2018_03.pdf.

[112] See Article 561 Algerian Civil Code (1975) and Article 657(4) Libyan Civil Code (1953).

[113] See Prof Dr A Al Sanhoury, Al Wasit in the Explanation of the Civil Code, Volume 1 (2010), p. 556.

[114] See Egyptian Supreme Administrative Court, Challenge No. 689 of judicial year 4, hearing session dated 12 December 1959.

[115] Article 218 ECC, Article 179 Algerian Civil Code (1975), Article 297 Kuwaiti Civil Code (1981), Article 221 Libyan Civil Code (1953), Article 219 Syrian Civil Code (1949), Article 256 Iraqi Civil Code (1951), Article 361 Jordanian Civil Code (1976), Article 265 Omani Civil Code (2013), Article 260 Qatari Civil Code (2004), Article 220 Bahraini Civil Code (2001) and Article 387 UAE Civil Code (1985).

[116] See Samiha El-Alyoubi, Al Wasit in the Explanation of the Egyptian Commercial Law, Volume I, Dar Elnahda ElArabya (2007), p. 93, Prof Dr A Al Sanhoury, Al Wasit in the Explanation of the Civil Code, Volume II, Ahmed Medhat Almaraghy (ed.), Dar Alsherouk (2010), p. 779.

[117] See Article 218 ECC.

[118] Article 219 ECC, Article 180 Algerian Civil Code (1975), Article 298 Kuwaiti Civil Code (1981), Article 222 Libyan Civil Code (1953), Article 220 Syrian Civil Code (1949), Article 256 Iraqi Civil Code (1951), Article 261 Qatari Civil Code (2004) and Article 221 Bahraini Civil Code (2001). Some jurisdictions, such as Oman and the UAE, do not provide for a similar provision, which may be construed as an inclination towards a liberal approach with respect to the form of a notice even in civil matters.

[119] See Samiha El-Alyoubi, Al Wasit in the Explanation of the Egyptian Commercial Law, Volume I, Dar Elnahda ElArabya (2007), p. 93.

[120] See Article 58 Egyptian Commercial Code (1999), Article 80 Algerian Commercial Code (1987), Article 80 Article 108 Kuwaiti Commercial Code (1981), Article 68 Omani Commercial Code (1990), Article 81 Qatari Commercial Code (2006) and Article 85 UAE Commercial Code (1993).

[121] See Article 220 ECC, Article 181 Algerian Civil Code (1975), Article 299 Kuwaiti Civil Code (1981), Article 223 Libyan Civil Code (1953), Article 221 Syrian Civil Code (1949), Article 258 Iraqi Civil Code (1951), Article 362 Jordanian Civil Code (1976), Article 266 Omani Civil Code (2013), Article 262 Qatari Civil Code (2004), Article 222 Bahraini Civil Code (2001) and Article 388 UAE Civil Code (1985).

[122] See Article 220 ECC.

[123] See Egyptian Court of Cassation, Challenge No. 10529 of judicial year 78, hearing session dated 1 February 2017 and Egyptian Court of Casssation, Challenge No. 5953 of judicial year 79, hearing session dated 21 February 2017.

[124] See Egyptian Court of Cassation, Challenge No. 1110 of judicial year 49, hearing session dated 6 February 1984.

[125] Prof Dr A Sanhory, Al Wasit Fi Sharh Al Qanun Al Madani (A Treatise on the Explanation of the Civil Code), Volume 1, Part 2 (2021 edition), p. 904.

[126] Articles 163 and 169 ECC deal with the situation where multiple tortfeasors are jointly and severally liable in compensating the loss or harm sustained. Liability shall be apportioned equally between them, unless the judge can attribute the contribution of each to the loss or harm. The same logic can apply in the context of contractual liability. If the judge cannot finally estimate the final amount of compensation, he or she can preserve the right for the aggrieved party to ask, within a prescribed period, for a recalculation of compensation. For an overview of all pertinent legislative provisions regarding the joint liability of tortfeasors and allocation of compensation, see Articles 163, 169 and 170 ECC, Articles 46, 176, 200 and 180 Omani Civil Code, Articles 50, 51, 166, 167 and 172 Libyan Civil Code, Articles 47, 48, 124, 126 and 131 Algerian Civil Code, Articles 77, 78, 94 and 99 Moroccan Civil Code, Articles 192, 227 to 229, 303 and 304 Kuwaiti Civil Code, Articles 124, 140, 160 and 166 Bahraini Civil Code and Articles 272, 282 to 285, 290 and 291 UAE Civil Code.

[127] Egyptian Court of Cassation, Challenge No. 102 of judicial year 17, hearing session dated 3 February 1949; Prof Dr S Morkos, El Wafi in the Explanation of Civil Law, Volume 2, Part 2 (1988), p. 540.

[128] In some civil law jurisdictions, such as Egypt, the aggrieved party need only prove the existence of the breach and the damage or harm and causation would be presumed. The burden then shifts to the other party to prove the inexistence of the breach, damage or harm, or causation.

[129] R W W Ray, ‘Constructive acceleration’, available at www.corporate.findlaw.com/litigation-disputes/constructive-acceleration.html.

[130] An employer’s breach of good faith would be established by the fact that: (1) the delay was excusable (i.e., caused by the employer or otherwise not attributable to the contractor); (2) the contractor should have been granted its extension of time under the contract but was denied such right; and (3) the contractor was forced to take acceleration measures, in aversion of the employer’s threatened sanctions or penalties.

[131] See Egyptian Supreme Administrative Court, Challenge No. 576 of judicial year 11, hearing session dated 30 December 1967.

[132] Exceptional and anomalous conditions include: the administration’s right to unilaterally amend or terminate the contract, the administration’s stringent monitoring and supervisory rights, the administration’s right to impose contractual penalties (fines) or perform certain obligations at the expense of the other contracting party, the administration’s right to revoke the contract without notifying the other contracting party, the administration’s right to inspect the contractor’s works anytime, the administration’s exclusive and unilateral right to amend the contract’s provisions or granting the administrative courts the power to amend the contract to best suit the public utility.

[133] For example, in Challenge No. 3128 of judicial year 35, hearing session dated 24 January 1995, the Egyptian Supreme Administrative Court held that ‘It is established in the practice of this Court that an administrative contract is concluded by public law entities with an intention of administering a public utility, or in the course of operating same, and the intention of such entities in upholding public law methods is demonstrated by the inclusion of contractual condition(s), which are anomalous to private law contracts. It is well established in administrative law doctrines that the implementation of public law methods is the key condition in distinguishing administrative contracts. While the pertinence of the contract concluded by the administration to a public utility is a prerequisite for its administrative nature, it does not solely suffice to characterise the contract as such.’

[134] Egyptian Supreme Administrative Court, Challenges Nos. 1320 and 1340 of judicial year 12, hearing session dated 15 February 1969 defines an administrative public works contract as ‘Since the contract . . . is a contract concluded between respondents whom are administrative body units and claimant to build real-estates to the benefit of a public law person and for the purpose of public interest, it would be considered as a Public Works contract.’

[135] See S El Tamawy, The General Principles of Administrative Contracts (2008), pp. 598, 602.

[136] See Egyptian Supreme Administrative Court in Challenges Nos. 1562 of judicial year 10 and 67 of judicial year 11, hearing session dated 11 May 1968. See also Egyptian Cassation Court, Challenge No. 4424 of judicial year 61, hearing session dated 15 November 1997.

[137] See Egyptian Supreme Administrative Court, Challenges Nos. 549 and 801 of judicial year 35, hearing session dated 4 April 1993. See also Egyptian Supreme Administrative Court, Challenge No. 22367 of judicial year 53, hearing session dated 30 November 2010.

[138] The Abu Dhabi Cassation Court in Challenge No. 426 of judicial year 18, hearing session dated 17 February 1998, stated that delay damages in private moqawala [construction] contracts are different from: ‘[T]he amount specified in moqawala contracts concluded by the administration, which is payable by the contractor in case of delay, which is in fact, one of the monetary penalties to which the administration resorts, as a penalty imposed on the other contracting party in case of default and negligence, irrespective of any damage suffered by the administration, and does not require a prior notification, because in administrative contracts, damage materialises upon occurrence of the delay, as it deprives the beneficiaries of those utilities from the intended benefit’. Thus, the Abu Dhabi Court of Cassation carefully differentiates between ‘delay damages in private contracts’ and ‘delay penalties in administrative contracts’, where the damage or loss is irrebuttably presumed. This does not apply if the contractor’s delay has not prevented the use of public utility by the beneficiaries. The above distinction made by the Abu Dhabi Court of Cassation may be slightly different from the approach taken by the Egyptian Supreme Administrative Court. While the Egyptian Supreme Administrative Court equally differentiated between delay penalties in administrative contracts and delay damages in private construction contracts, the Court still denied liability if the party (in a contract with the administration) was able to prove that he or she has not committed a breach or fault. The Supreme Administrative Court in Challenge No. 1226 of judicial year 35, hearing session dated 23 April 1996, stated: ‘It is established in the doctrine of administrative law that the delay penalty in administrative contracts is prescribed to guarantee performance of such contracts during the agreed duration to ensure the uninterrupted and systemic operation of public utilities. Legal characterisation of delay penalty as a form of agreed compensation is different from an agreed compensation in private law, owing to the existence of special terms, the most important of which is that damage is presumed upon occurrence of the delay. However, the other party may prove the absence of breach or fault, and once one of the conditions of liability is negated, there is no room to exercise the administration’s right to receive compensation owing to the lack of the legal basis thereof.’ See also Egyptian Supreme Administrative Court, Challenge No. 1333 of judicial year 49, hearing session dated 18 April 2017 and Egyptian Supreme Administrative Court, Challenge No. 21215 of judicial year 57, hearing session dated 28 November 2017.

[139] Prof Dr A Al Sanhoury, Al Wasit in the Explanation of the Civil Code, Part 7, Volume 1 (2010), p. 64.

[140] Prof Dr A Al Sanhoury, Al Wasit in the Explanation of the Civil Code, Volume 2 (2010 edition), Dar Alsherouk, p. 817. See also Egyptian Court of Cassation Challenge No. 743 of judicial year 49, hearing session dated 11 January 1983.

[141] e.g., Egyptian Court of Cassation Challenge No. 5287 of judicial year 83, hearing session dated 17 February 2014.

[142] Article (170) states: ‘The judge shall quantify compensation for the damage(s) suffered by the aggrieved party in accordance with Articles (221) and (222) taking into consideration the circumstances. If the judge was unable, at the time of judgment, to finally quantify the compensation, he may reserve for the aggrieved party the right to request revisiting the quantification within a specified period.’

[143] Article 221 ECC stipulates that: ‘(1) if compensation was not quantified in the contract or by a provision in the law, the judge shall quantify it. Compensation shall include the loss suffered, and profit lost by the creditor, provided that they are a natural result of the non-fulfilment or delay in fulfilment of the obligation. A damage shall be considered a natural result if the creditor could not have avoided it by exerting reasonable efforts. (2) However, if the obligation originates from the contract, a debtor not involved in fraud or gross negligence shall not be liable save for compensation of damage commonly foreseeable at the time of contracting.’ Moreover, Article 222/1 ECC states that: ‘(1) Compensation shall include moral damages, however, in such case it may not be transferred to a third party unless specified by an agreement or claimed by the creditor before courts.’

[144] J Jenkins and S Stebbings, International Construction Arbitration Law, Volume 1 (2006), p. 43. Clause 8.7 of the FIDIC Red Book 1999 edition (the Red Book) provides for the contractor to pay delay damages to the employer if it fails to complete the works, or each section of the works, by the time for completion (subject to any extensions of time). The clause also states that such ‘delay damages shall be the only damages due from the contractor for such default.’ The rate of such delay damages is quantified in the Appendix to Tender: www.fidic.org/node/911, accessed on 22 February 2017. Moreover, in the new 2017 edition, the FIDIC Red Book defined delay damages as: ‘The damages for which the Contractor shall be liable under Sub-Clause 8.8 [Delay Damages] for failure to comply with Sub-Clause 8.2 [Time for Completion]’.

[145] Egyptian Court of Cassation, Challenge No. 5980 of judicial year 65, hearing session dated 15 May 2007.

[146] Article 225 ECC (1948), Article 267 Lebanese Code of Obligations and Contracts (1913) and Article 226 Syrian Civil Code (1949).

[147] See, for example, Article 184 Algerian Civil Code (1975), Article 226 Bahraini Civil Code (2001), Article 303 Kuwaiti Civil Code (1980), Article 226 Libyan Civil Code (1953), Article 266 Qatari Civil Code (2004), Article 225 Syrian Civil Code (1949), Article 390 UAE Civil Code (1985) and Article 266 Lebanese Code of Obligations and Contracts (1913).

[148] See also Article 364/2 Jordanian Civil Code (1976) and Article 390/2 UAE Civil Code (1985).

[149] D Courtney-Hatcher, S Tee, D Hamilton and J Barton, Dentons & Co, ‘Construction and projects in Oman: Overview’, available at: www.uk.practicallaw.com/7-519-6003?source=relatedcontent#.

[150] e.g., Egyptian Court of Cassation, Challenge No. 6363 of judicial year 88, hearing session dated 19 January 2019 and Egyptian Court of Cassation, Challenge No. 7359 of judicial year 63, hearing session dated 30 May 2002.

[151] e.g., Egyptian Court of Cassation, Challenge No. 5302 of judicial year 86, hearing session dated 27 February 2018, Egyptian Court of Cassation, Challenge No. 11215 of judicial year 75, hearing session dated 3 November 2014 and Prof Dr A Al Sanhoury, Al Wasit in the Explanation of the Civil Code, Volume II (2010), p. 801.

[152] e.g., Egyptian Court of Cassation, Challenge No. 5302 of judicial year 86, hearing session dated 27 February 2018, Egyptian Court of Cassation, Challenge No. 11215 of judicial year 75, hearing session dated 3 November 2014 and Article 224/1 ECC.

[153] e.g., Egyptian Court of Cassation, Challenge No. 5302 of judicial year 86, hearing session dated 27 February 2018, Egyptian Court of Cassation, Challenge No. 13319 of judicial year 78, hearing session dated 22 February 2010 and Egyptian Court of Cassation Challenges Nos. 1859, 2444 and 2447 of judicial year 70, hearing session dated 12 June 2001.

[154] See Prof Dr A Al Sanhoury, Al Wasit in the Explanation of the Civil Code, Volume I (2010), pp. 601–602.

[155] ibid.

[156] e.g., Egyptian Court of Cassation, Challenge No. 5487 of judicial year 88, hearing session dated 6 April 2019, Egyptian Court of Cassation, Challenge No. 10332 of judicial year 83, hearing session dated 21 June 2014 and Egyptian Economic Court, Appellate Circuit, Case No. 824 of judicial year 3, hearing session dated 10 December 2012.

[157] e.g., Egyptian Court of Cassation Challenge No. 5302 of judicial year 86, hearing session dated 27 February 2018.

[158] Article 215 ECC.

[159] A Al Sanhoury, Al Wasit in the Explanation of the Civil Code, Volume II (2010), p. 806.

[160] e.g., Egyptian Court of Cassation Challenge No. 5287 of judicial year 83, hearing session dated 17 February 2014.

[161] e.g., Egyptian Court of Cassation Challenge No. 5302 of judicial year 86, hearing session dated 27 February 2018, Egyptian Court of Cassation Challenges Nos. 1859, 2444 and 2447 of judicial year 70, hearing session dated 12 June 2001 and Egyptian Court of Cassation Challenge No. 3141 of judicial year 61, hearing session dated 7 December 1996.

[162] ibid.

[163] See, for example, Society of Construction Law Delay and Distribution, 2nd edition, February 2017, p. 6, available at www.scl.org.uk/sites/default/files/SCL_Delay_Protocol_2nd_Edition.pdf.

[164] See Hamish Lal, Brendan Casey and Josephine Kaiding, ‘Comparative Approaches to Concurrent Delay’, 2 October 2019, available at https://globalarbitrationreview.com/guide/the-guide-construction-arbitration/third-edition/article/comparative-approaches-concurrent-delay. In the FIDIC Red Book, fourth edition, Clause 8.5 addresses the principle of concurrent delay and reads ‘If a delay caused by a matter which is the Employer’s responsibility is concurrent with a delay caused by a matter which is the Contractor’s responsibility, the Contractor’s entitlement to EOT shall be assessed in accordance with the rules and procedures stated in the Particular Conditions (if not stated, as appropriate taking due regard of all relevant circumstances).’

[165] On one hand, the Malmaison approach entitles the contractor to a full extension of time notwithstanding the fault attributed to the contractor itself given that the delay attributed to or falls within the responsibility of the employer has at least equal causative potency with all other matters causing delay. On the other hand, the but for causation test is usually invoked by employers, arguing that, notwithstanding the employer’s own fault, contractor’s acts on their own would have delayed the works beyond the completion date. The apportionment and dominant cause are explained bellow. See John Marrin QC, ‘Concurrent Delay Revisited’, 2013, Published in the Society of Construction Law in London, available at: https://tecbar.org/wp-content/uploads/2016/05/2014-Concurrent-Delay-Revisited-John-Marrin-QC.pdf.

[166] See, for example, Articles 126 and 177 Algerian Civil Code (1975), Articles 160 and 217 Bahraini Civil Code (2001), Articles 228 and 234 Kuwaiti Civil Code (1980), Articles 172 and 219 Libyan Civil Code (1953), Article 180 Omani Civil Code (2013), Article 257 Qatari Civil Code (2004), Articles 170 and 217 Syrian Civil Code (1949), Articles 264 and 265 Jordanian Civil Code (1976), Articles 290 and 291 UAE Civil Code (1985), Articles 99 and 100 Moroccan Code of Obligations and Contracts (1913), Articles 135 and 137 Lebanese Code of Obligations and Contracts (1932) and Articles 108 and 109 Tunisian Code of Obligations and Contracts (1907).

[167] Article 126 Algerian Civil Code (1975), Article 160 Bahraini Civil Code (2001), Article 228 Kuwaiti Civil Code (1980), Article 172 Libyan Civil Code (1953), Article 170 Syrian Civil Code (1949), Article 265 Jordanian Civil Code (1976), Article 291 UAE Civil Code (1985), Article 99 Moroccan Code of Obligations and Contracts (1913), Article 137 Lebanese Code of Obligations and Contracts (1932) and Article 108 Tunisian Code of Obligations and Contracts (1907).

[168] Unlike other MENA region civil codes, the Qatari Civil Code (2004) does not include a similar provision to that effect. Also, Article 180 of the Omani Civil Code (2013) explicitly excludes joint liability of debtors.

[169] See Prof Dr A Al Sanhoury, Al Wasit in the Explanation of the Civil Code, Volume 1 (2010), p. 817.

[170] Article 109 Tunisian Code of Obligations and Contracts (1907), Article 100 Moroccan Code of Obligations and Contracts (1913), Article 135 Lebanese Code of Obligations and Contracts (1932), Article 217 Syrian Civil Code (1949), Article 219 Libyan Civil Code (1953), Article 177 Algerian Civil Code (1975), Article 234 Kuwaiti Civil Code (1980), Article 290 UAE Civil Code (1985), Article 217 Bahraini Civil Code (2001), Article 257 Qatari Civil Code (2004) and Article 264 Jordanian Civil Code (1976).

[171] Unlike other MENA region civil codes mentioned above, Article 180 Omani Civil Code (2013), Article 234 Kuwaiti Civil Code (1980), Article 109 Tunisian Code of Obligations and Contracts (1907) and Article 100 Moroccan Code of Obligations and Contracts (1913) does not expressly incorporate the theory of dominant cause because these provisions have not expressly given the court/tribunal the ability dismiss a claim of damages in toto even where there exists a dominant fault. However, Article 180 Omani Civil Code (2013) gives the court/tribunal discretion to rule in a different manner than that stipulated in the provisions. Thus, the dominant cause theory might be applied by a court/tribunal under Omani law (see Prof Dr Mohamed I Bendari, Alwajeez in the Sources of Obligations (2014), pp. 353–356).

[172] MENA region laws that adopt the ‘dominant cause theory’ are: Article 135 Lebanese Code of Obligations and Contracts (1932), Article 217 Syrian Civil Code (1949), Article 219 Libyan Civil Code (1953), Article 177 Algerian Civil Code (1975), Article 290 UAE Civil Code (1985), Article 217 Bahraini Civil Code (2001), Article 257 Qatari Civil Code (2004) and Article 264 Jordanian Civil Code (1976).

[173] Prof Dr A Al Sanhoury stated, while commenting on Article 216 ECC, that ‘we observe that . . . Article [216 ECC] says [‘or reject any request for compensation’], which is the case where one fault dominates the other’ (see Prof Dr A Al Sanhoury, Al Wasit in the Explanation of the Civil Code, Volume 1 (2010), p. 819); see also Prof Dr S Morkos, El Wafi in the Explanation of Civil Law, Volume 2, Part 2 (1988), pp. 492–495.

[174] See UAE Federal Supreme Court Challenge No. 1 of judicial year 26, hearing session dated 27 June 2005.

[175] See Egyptian Court of Cassation Challenge No. 4110 of judicial year 66, hearing session dated 18 December 2008.

[176] See Article 216 ECC (1948), Article 177 Algerian Civil Code (1975), Article 217 Bahraini Civil Code (2001), Article 234 Kuwaiti Civil Code (1980), Article 219 Libyan Civil Code (1953), Article 177 Omani Civil Code (2013), Article 257 Qatari Civil Code (2004), Article 217 Syrian Civil Code (1949), Article 264 Jordanian Civil Code (1976), Article 290 UAE Civil Code (1985), Article 268 Moroccan Code of Obligations and Contracts (1913), Article 135 Lebanese Code of Obligations and Contracts (1932) and Article 282 Tunisian Code of Obligations and Contracts (1907).

[177] See Prof Dr A Al Sanhoury, Al Wasit in the Explanation of the Civil Code, Volume 1 (2010), p. 820. See also Prof Dr S Morkos, El Wafi in the Explanation of Civil Law, Volume 2, Part 2 (1988), p. 495.

[178] See Prof Dr A Al Sanhoury, Al Wasit in the Explanation of the Civil Code, Volume 1 (2010), p. 822. See also Prof Dr S Morkos, El Wafi in the Explanation of Civil Law, Volume 2, Part 2 (1988), p. 495.

[179] Qatari Civil Code (2004) and Article 180 Omani Civil Code (2013) do not expressly adopt the 50:50 approach of apportionment where discerning the degree of fault attributed to each party is not possible.

[180] See Article 169 ECC (1948), Article 135 Lebanese Code of Obligations and Contracts (1932), Article 217 Syrian Civil Code (1949), Article 219 Libyan Civil Code (1953), Article 177 Algerian Civil Code (1975), Article 290 UAE Civil Code (1985), Article 217 Bahraini Civil Code (2001), Article 257 Qatari Civil Code (2004) and Article 264 Jordanian Civil Code (1976).

[181] This is foreseen in two cases: (1) If one fault is intentional and the other is not; and (2) if one party consented to the fault of the other while being totally aware of the consequences (see Prof Dr A Al Sanhoury, Al Wasit in the Explanation of the Civil Code, Volume 1 (2010), pp. 813–815).

[182] See Prof Dr A Al Sanhoury, Al Wasit in the Explanation of the Civil Code, Volume 1 (2010), p. 816. See Prof Dr S Morkos, El Wafi in the Explanation of Civil Law, Volume 2, Part 2 (1988), p. 493.

[183] Prof Dr A Al Sanhoury stated, while commenting on Article 216 ECC, that ‘we observe that . . . Article [216 ECC] says [‘or reject any request for compensation’], which is the case where one fault dominates the other’ (see Prof Dr A Al Sanhoury, Al Wasit in the Explanation of the Civil Code, Volume 1 (2010), p. 819).

[184] See Prof Dr S Morkos, El Wafi in the Explanation of Civil Law, Volume 2, Part 2 (1988), p. 492.

[185] See Egyptian Supreme Administrative Court, Challenge No. 4663 of judicial year 47, hearing session dated 2 September 2007.

[186] See Egyptian Court of Administrative Adjudications, Challenge No. 73358 of judicial year 69, hearing session dated 31 March 2018.

[187] See Saudi Court of Cassation Challenge No. 3400 of judicial year 1, hearing session dated 31 August 2010.

[188] See M A Bakry, The Encyclopaedia of Doctrine, Judiciary, and Legislations in the New Civil Code, Volume 2 (1985), p. 848.

[189] Article 161 ECC (1948), Article 123 Algerian Civil Code (1975), Article 150 Bahraini Civil Code (2001), Article 219 Kuwaiti Civil Code (1980), Article 163 Libyan Civil Code (1953), Article 157 Omani Civil Code (2013), Article 191 Qatari Civil Code (2004), Article 162 Syrian Civil Code (1949), Article 203 Jordanian Civil Code (1976), Article 247 UAE Civil Code (1985) and Article 235 Moroccan Code of Obligations and Contracts (1913).

[190] Article 150 Bahraini Civil Code (2001).

[191] Article 236 Moroccan Code of Obligations and Contracts (1913).

[192] See Prof Dr A Al Sanhoury, Al Wasit in the Explanation of Civil Law, Volume II (2010), pp. 1057 and 1058.

[193] Egyptian Court of Cassation, Challenge No. 405 of judicial year 88, hearing session dated 3 February 2019.

[194] See Egyptian Court of Cassation, Challenge No. 405 of judicial year 88, hearing session dated 3 February 2019 and Prof Dr A Al Sanhoury, Al Wasit in the Explanation of the Civil Code, Volume 1 (1981), pp. 600–610; see also Prof Dr M Lotfi, The General Theory of Obligation: Sources - Provisions – Evidence (2008), pp. 202–203 and M A Bakry, The Encyclopaedia of Doctrine, Judiciary, and Legislations in the New Civil Code, Volume 2 (1985), pp. 834–836.

[195] See Egyptian Court of Cassation, Challenge No. 405 of judicial year 88, hearing session dated 3 February 2019 and Egyptian Court of Cassation, Challenge No. 424 of judicial year 21, hearing session dated 4 April 1955.

[196] See Egyptian Court of Cassation, Challenge No. 405 of judicial year 88, hearing session dated 3 February 2019 and Prof Dr M Lotfi, The General Theory of Obligation: Sources - Provisions – Evidence (2008), p. 204; see also M A Bakry, The Encyclopaedia of Doctrine, Judiciary, and Legislations in the New Civil Code, Volume 2 (1985), pp. 836–840.

[197] See M A Bakry, The Encyclopaedia of Doctrine, Judiciary, and Legislations in the New Civil Code, Volume 2 (1985), pp. 841–842.

[198] See Prof Dr M Lotfi, The General Theory of Obligation: Sources - Provisions – Evidence (2008), pp. 204–205; see also M A Bakry, The Encyclopaedia of Doctrine, Judiciary, and Legislations in the New Civil Code, Volume 2 (1985), pp. 841–842.

[199] See Alsanhuri, Al Wasit in the Explanation of Civil Law, Volume II, Ahmed Medhat Almaraghy (ed.) (2010), p. 1039; see also M A Bakry, The Encyclopaedia of Doctrine, Judiciary, and Legislations in the New Civil Code, Volume 2 (1985), p. 843.

[200] See Prof Dr A Al Sanhoury, Al Wasit in the Explanation of the Civil Code, Volume 1 (1981), p. 606; see also M A Bakry, The Encyclopaedia of Doctrine, Judiciary, and Legislations in the New Civil Code, Volume 2 (1985), p. 849 and Egyptian Court of Cassation Challenge No. 2894 of judicial year 64, hearing session dated 16 May 1999.

[201] See M H Lotfi, ‘The general theory of obligations’, (2007), p. 123.

[202] See Prof Dr A Al Sanhoury, Al Wasit in the Explanation of Civil Law, Volume II (2010), p. 1048.

[203] See, for example, Article 651 ECC, Article 554 Algerian Civil Code (1975), Article 870 Iraqi Civil Code (1951), Article 788 Jordanian Civil Code (1976), Article 692 Kuwaiti Civil Code (1980), Article 668 Lebanese Civil Code (1932), Article 650 Libyan Civil Code (1953), Article 634 Omani Civil Code (2013), Article 711 Qatari Civil Code (2004), Article 615 Bahraini Civil Code (2001), Article 876 Tunisian Code of Obligations and Contracts (1907), Article 769 Moroccan Code of Obligations and Contracts (1913), Article 788 Jordanian Civil Code (1976), Article 617 Syrian Civil Code (1949) and Article 880 UAE Civil Code (1985).

[204] See Egyptian Court of Cassation, Challenge No. 443 of judicial year 51, hearing session dated 12 June 1989.

[205] Before handover, the liability of the contractor, architects or engineers is subject to the general rules of contractual liability; see, for example, Dr Mohamed Shokry Sorour, ‘Responsibility of the Engineers and the Contractors of Buildings and Other Fixed structures in Egyptian and French Civil Law’, pp. 28 and 29.

[206] See Article 651 ECC.

[207] See Article 13(b) repealed Bahraini Buildings Organization Law No. 13 of 1977.

[208] See Article 615 Bahraini Civil Code (2001).

[209] See Prof Dr A Al Sanhoury, Al Wasit in the Explanation of the Civil Code, Volume 1, Part 2 (2021 edition), p. 904.

[210] ibid.

[211] See Egyptian Administrative High Court, Challenge No. 11120 of judicial year 49, hearing session dated 24 January 2017.

[212] See Prof Dr A Al Sanhoury, Al Wasit in the Explanation of the Civil Code, Volume 1, Part 2 (2021 edition), p. 904.

[213] Article 220 Libyan Civil Code (1953).

[214] See Prof Dr A Al Sanhoury, Al Wasit in the Explanation of the Civil Code, Volume 1, Part 2 (2021 edition), p. 903, Article 217(1) and (2) ECC, Article 178(1) and (2) Algerian Civil Code (1975), Article 219 Bahraini Civil Code (2001), Article 259(1) and (2) Iraqi Civil Code (1951), Article 296 Kuwaiti Civil Code (1980), Article 259(1) and (2) Qatari Civil Code (2004), Article 218(1) and (2) Syrian Civil Code (1949), Egyptian Court of Cassation, Challenge No. 3246 of judicial year 85, hearing session dated 28 January 2016 and Egyptian Court of Cassation, Challenge No. 960 of judicial year 71, hearing session dated 28 October 2003.

[215] See Articles 211(2) and 217(3) ECC, Articles 172 and 178 Algerian Civil Code (1975), Articles 290(2) and 296 Kuwaiti Civil Code (1981), Articles 212(2), 218(2) and 218(3) Syrian Civil Code (1949), Article 259(2) and (3) Iraqi Civil Code (1951), Article 358 Jordanian Civil Code (1976), Articles 183 and 261(2) Omani Civil Code (2013), Article 295(3) Qatari Civil Code (2004), Articles 214(B) and 219 Bahraini Civil Code (2001) and Articles 296 and 383(2) UAE Civil Code (1985); see also Egyptian Court of Cassation, Challenge No. 3246 of judicial year 85, hearing session dated 28 January 2016, UAE Federal High Court, Challenge No. 13 of judicial year 14, hearing session dated 25 May 1992, Kuwaiti Court of Cassation, Challenge No. 415 of judicial year 2000, hearing session dated 11 December 2000, Bahraini Court of Cassation, Challenge No. 415 of judicial year 2005, hearing session dated 17 April 2006, Qatari Court of Cassation, Challenge No. 74 of judicial year 2011, hearing session dated 16 June 2011 and Kingdom of Saudi Arabia Court of Cassation, Challenge No. 544 of judicial year 2, hearing session dated 31 January 2000.

[216] See Article 217(2) ECC, Article 178(2) Algerian Civil Code (1975), Article 218(2) Syrian Civil Code (1949) and Article 259(2) Iraqi Civil Code (1951).

[217] See Articles 265 to 267 ECC (1948), Articles 116 to 121 Tunisian Code of Obligations and Contracts (1907), Articles 107 to 112 Moroccan Code of Obligations and Contracts (1913), Articles 81 to 84 Lebanese Code of Obligations and Contracts (1932), Articles 265 to 267 Syrian Civil Code (1949), Articles 252 to 254 Libyan Civil Code (1953), Articles 285 to 287 Qatari Civil Code (2004), Articles 203 to 205 Algerian Civil Code (1975), Articles 323 to 325 Kuwaiti Civil Code (1980), Articles 420 to 423 UAE Civil Code (1985), Articles 245 to 247 Bahraini Civil Code (2001), Articles 393 to 396 Jordanian Civil Code (1976) and Articles 293 to 295 Omani Civil Code (2013).

[218] See Egyptian Court of Cassation, Challenge No. 5414 of judicial year 63, hearing session dated 13 February 2001.

[219] See Prof Dr A Al Sanhoury, Al Wasit in the Explanation of the Civil Code, Volume 3 (2010 edition), p. 19, Paragraph 12.

[220] ibid.

[221] id. at p. 20.

[222] id. at p. 20.

[223] Article 182 Algerian Civil Code (1975), Article 161 Bahraini Civil Code (2001), Article 230 Kuwaiti Civil Code (1980), Article 224 Libyan Civil Code (1953), Article 181 Omani Civil Code (2013), Article 201 Qatari Civil Code (2004), Article 222 Syrian Civil Code (1949), Article 266 Jordanian Civil Code (1976), Article 292 UAE Civil Code (1985) and Article 264 Moroccan Code of Obligations and Contracts (1913).

[224] Similarly, and in confirmation of the overarching global nature of the duty of mitigation as a general principle of law, Article (7.4.8) of the UNIDROIT principles provides that: ‘(1) The non-performing party is not liable for harm suffered by the aggrieved party to the extent that the harm could have been reduced by the latter party’s taking reasonable steps. (2) The aggrieved party is entitled to recover any expenses reasonably incurred in attempting to reduce harm.’

[225] See Prof Dr A Al Sanhory, Al Wasit Fi Sharh Al Qanun Al Madani (A Treatise on the Explanation of the Civil Code), Volume 1 (2010 edition), pp. 839–840.

[226] See, for example, Omani Court of Cassation Challenge No. 29 of judicial year 2004, hearing session dated 23 June 2004 and Egyptian Court of Cassation Challenge No. 1070 of judicial year 53, hearing session dated 6 June 1984.

[227] See, for example, Egyptian Court of Cassation Challenge No. 3956 of judicial year 68, hearing session dated 28 May 2000, Bahraini Court of Cassation Challenge No. 842 of judicial year 2014, hearing session dated 10 May 2015 and Qatari Court of Cassation Challenge No. 13 of judicial year 2010, hearing session dated 16 March 2010.

[228] Egyptian Court of Cassation Challenge No. 7085 of judicial year 63, hearing session dated 30 November 1995.

[229] For instance, good faith entails a duty by the employer to inform the contractor of his or her breach of contract because the contractor might not be aware of his or her breach; thus, if the employer intentionally fails to inform the contractor of the breach, the employer would not be entitled to compensation for the damages that he or she could have avoided by informing the contractor (see Prof Dr Mohamed Labeeb Shanab, ‘Explanation of Contract For Works’ Rules’ (2015), p. 151.)

[230] See Article 179 ECC, Article 141 Algerian Civil Code (1975), Article 182 Bahraini Civil Code (2001), Article 262 Kuwaiti Civil Code (1980), Article 182 Libyan Civil Code (1953), Articles 201 and 202 Omani Civil Code (2013), Article 220 Qatari Civil Code (2004), Article 180 Syrian Civil Code (1949), Article 294 Jordanian Civil Code (1976), Article 149 Lebanese Code of Obligations and Contracts (1932), Article 1179 Tunisian Code Obligations and Contracts (1907), Article 319 UAE Civil Code (1985), KSA Court of Cassation, Challenge No. 3023 of judicial year 1, hearing session dated 29 May 2006 and Prof Dr S Morkos, El Wafi in the Explanation of Civil Law -2-, Volume 5, Part 3 (1992), p. 65.

[231] See Article 179 ECC.

[232] See Article 180 ECC, Article 183 Bahraini Civil Code (2001), Article 263 Kuwaiti Civil Code (1980), Article 183 Libyan Civil Code (1953), Article 221 Qatari Civil Code (2004), Article 181 Syrian Civil Code (1949), Article 311 Jordanian Civil Code (1976) and Article 336 UAE Civil Code (1985).

[233] See Article 218 Omani Civil Code (2013).

[234] See Article 142 Algerian Civil Code (1975).

[235] See Article 402 Tunisian Code Obligations and Contracts (1907).

[236] See Egyptian Court of Cassation, Challenge No. 6294 of judicial year 80, hearing session dated 18 December 2017, Egyptian Court of Cassation, Challenge No. 823 of judicial year 76, hearing session 23 March 2014 and Egyptian Economic Court, Challenge No. 452 of judicial year 2014, hearing session dated 29 December 2014.

[237] See Egyptian Court of Cassation, Challenge No. 2190 of judicial year 52, hearing session dated 19 March 1984, p. 748.

[238] See Prof Dr A Al Sanhoury, Al Wasit Fi Sharh Al Qanoun Al Madani (A Treatise on the Explanation of the Civil Code), Volume II, Dar Ihya’a Altorath Al-Arabi (1998), pp. 1123–1124 and Prof Dr S Tanagho, Sources of Obligations, First edition, Maktabet Alwafa’a Alkanonya (2009), p. 307.

[239] ibid.

[240] See Prof Dr A Al Sanhoury, Al Wasit Fi Sharh Al Qanoun Al Madani (A Treatise on the Explanation of the Civil Code), Volume II, Dar Ihya’a Altorath Al-Arabi (1998), p. 1125; also see Prof Dr S Tanagho, Sources of Obligations, First edition, Maktabet Alwafa’a Alkanonya (2009), p. 308 and Soliman Morkos, Unjust Enrichment on the Expense of Others, Matabe Dar Al-Nashr Lelmaktabat Al-Masrya (1961), p. 59.

[241] See Prof Dr S Tanagho, Sources of Obligations, First edition, Maktabet Alwafa’a Alkanonya (2009), p. 320.

[242] See Prof Dr S Morkos, Unjust Enrichment on the Expense of Others, Matabe Dar Al-Nashr Lelmaktabat Al-Masrya (1961), p. 61.

[243] See id. at p. 65.

[244] See id. at pp. 67 and 68 and Samir Tanagho, Sources of Obligations, First edition, Maktabet Alwafa’a Alkanonya (2009), p. 309.

[245] See Prof Dr S Morkos, Unjust Enrichment on the Expense of Others, Matabe Dar Al-Nashr Lelmaktabat Al-Masrya (1961), p. 70.

[246] See Egyptian Economic Court, Challenge No. 452 of judicial year 2014, hearing session dated 29 December 2014 and Prof Dr S Tanagho, Sources of Obligations, First edition, Maktabet Alwafa’a Alkanonya (2009), p. 320.

[247] See, for example, Articles 226 and 227 ECC, Article 228 Bahraini Civil Code (2001), Article 305 Kuwaiti Civil Code (1980), Article 229 Libyan Civil Code (1953), Article 268 Qatari Civil Code (2004), Article 227 Syrian Civil Code (1949) and Article 389 UAE Civil Code (1985).

[248] Articles 226 and 227 ECC and Article 227 Syrian Civil Code (1949).

[249] By way of exception, Article 50 of the Egyptian Commercial Code (1999) provides that interest on the loans made by a trader for the purpose of his or her trading activities is determined according to the rate set by the Central Bank of Egypt, unless the parties agree to a rate that is less than that determined by the Central Bank.

[250] Article 227 Syrian Civil Code (1949).

[251] Article 108 Syrian Commercial Code (2006).

[252] Article 305 Kuwaiti Civil Code (1980), Article 228 Bahraini Civil Code (2001) and Article 389 UAE Civil Code (1985).

[253] Article 268 Qatari Civil Code (2004), Article 389 UAE Civil Code (1985) and Article 267 Omani Civil Code (2013).

[254] Article 110 Kuwaiti Commercial Code (1980).

[255] Article 111 Kuwaiti Commercial Code (1980).

[256] Article 81 Bahraini Commercial Law (1987) and its amendments.

[257] Qatari Court of Cassation Challenge No. 66 of judicial year 2014, hearing session dated 13 May 2014, Qatari Court of Cassation Challenge No. 40 of judicial year 2013, hearing session dated 14 May 2013 and Qatari Court of Cassation Challenge No. 208 of judicial year 2014, hearing session dated 25 November 2014.

[258] Article 80 of the Omani Commercial Code (1990) states that the interest rate shall not exceed the ceiling determined by both the Ministry of Commerce and Industry and the Omani Commercial Chamber.

[259] Article 88 UAE Commercial Code (1993).

[260] Prof Dr A Al Sanhoury, Al Wasit Fi Sharh Al Qanoun Al Madani (A Treatise on the Explanation of the Civil Code), Volume I (1998), p. 565.

[261] Construction contracts often include clauses that if one of the clauses under the contract is null and void, the nullity shall not extend to the other clauses of the contract.

[262] Prof Dr A Al Sanhoury, Al Wasit Fi Sharh Al Qanoun Al Madani (A Treatise on the Explanation of the Civil Code), Volume I (1998), p. 394 and Dr Ayman Saad, Sources of Obligation: A Comparative Study, (2018), p. 175.

[263] Prof Dr A Al Sanhoury, Al Wasit Fi Sharh Al Qanoun Al Madani (A Treatise on the Explanation of the Civil Code), Volume I (1998), p. 565.

[264] ibid.

[265] Article 663 ECC, Article 566 Algerian Civil Code (1975), Article 707 Qatari Civil Code (2004), Article 885 Iraqi Civil Code (1951), Article 688 Kuwaiti Civil Code (1980), Article 662 Libyan Civil Code (1953), Article 611 Bahraini Civil Code (2001) and Article 629 Syrian Civil Code (1949).

[266] Article 647 Omani Civil Code (2013), Article 801 Jordanian Civil Code (1976) and Article 893 UAE Civil Code (1985).

[267] See Article 157(2) ECC, Article 119(2) Algerian Civil Code (1975), Article 209(2) Kuwaiti Civil Code (1981), Article 159(2) Libyan Civil Code (1953), Article 158(2) Syrian Civil Code (1949), Article 177 Iraqi Civil Code (1951), Article 246(2) Jordanian Civil Code (1976), Article 171(2) Omani Civil Code (2013), Article 183(2) Qatari Civil Code (2004), Article 140(2) Bahraini Civil Code (2001), Article 272(2) UAE Civil Code (1985), Article 123 Lebanese Code of Obligations and Contracts (1932) and Articles 273 and 274 Tunisian Code of Obligations and Contracts (1907). Also see Prof Dr A Sanhory, Al Wasit Fi Sharh Al Qanun Al Madani (A Treatise on the Explanation of the Civil Code), Volume 1 (1998 edition), pp. 577–582 and Kasili Makhlouf, ‘Dissolution of the Contract’, University of Tizi Ouzou (2016), pp. 17–21.

[268] Article 160 ECC, Article 122 Algerian Civil Code (1975), Article 211 Kuwaiti Civil Code (1981), Article 162 Libyan Civil Code (1953), Article 16 Syrian Civil Code (1949), Article 248 Jordanian Civil Code (1976), Article 185 Qatari Civil Code (2004), Article 142 Bahraini Civil Code (2001), Article 274 UAE Civil Code (1985), Articles 234 and 235 Moroccan Code of Obligations and Contracts (1913), Article 123 Lebanese Code of Obligations and Contracts (1932) and Articles 273 and 274 Tunisian Code of Obligations and Contracts (1907). Also see Prof Dr A Sanhory, Al Wasit Fi Sharh Al Qanun Al Madani (A Treatise on the Explanation of the Civil Code), Volume 1 (1998 edition), pp. 582–583 and ‘Provisions of Contractual Rescission in Moroccan Law’, dated 14 February 2020, accessed on 11 June 2021, available at: www.elkanounia.com/2020/02/expose12.html.

[269] Article 159 ECC, Article 121 Algerian Civil Code (1975), Article 214 Kuwaiti Civil Code (1981), Article 161 Libyan Civil Code (1953), Article 160 Syrian Civil Code (1949), Article 247 Jordanian Civil Code (1976), Article 172 Omani Civil Code (2013), Article 187 Qatari Civil Code (2004), Article 145 Bahraini Civil Code (2001) and Article 273 UAE Civil Code (1985). Notably, Oman and the UAE seem to extend the rescission by virtue of law on the basis of impossibility of performance to cases of force majeure only.

[270] Prof Dr A Al Sanhoury, Al Wasit Fi Sharh Al Qanoun Al Madani (A Treatise on the Explanation of the Civil Code), Volume I (1998), pp. 596–600.

[271] See ‘The Middle East and Africa (MEA) region’s construction industry will grow by 6.9 per cent annually in 2016–20, according to Timetric’s Construction Intelligence Center (CIC)’; see www.venturesonsite.com/news/the-middle-east-and-africa-mea-regions-construction-industry-will-grow-by-6-9-annually-in-2016-20/, accessed on 22 March 2017. Presentation on Middle East and North Africa Regional Economic Outlook, 19 October 2016, accessed on 22 March 2017.

[272] See E C Harris, Global Construction Dispute Report 2013.

[273] Emre Cakmak and Pinar Irlayici Cakmak, ‘An analysis of causes of disputes in the construction industry using analytical network process’, available at www.sciencedirect.com/science/article/pii/S1877042813050738.

[274] ibid. See also Sigitas Mitkus and Tomas Mitkus, ‘Causes of Conflicts in a Construction Industry: A Communicational Approach’, available at www.sciencedirect.com/science/article/pii/S1877042813055626.

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