Tag:Qatar

1
Construction and Projects in Qatar: Overview
2
Qatar – An Opportunity for Operation and Maintenance PPPs
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K&L GATES HONORED WITH MULTIPLE QATAR BUSINESS LAW FORUM AWARDS
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Update: Collateral Warranties in Qatar
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Good Faith in the Middle East
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Liquidated Damages in the UAE, Qatar, and Saudi Arabia
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Construction Law Masterclass: FIDIC in Qatar

Construction and Projects in Qatar: Overview

By: Paweł Piotrowski, Matthew Walker, and Amjad Hussain

A Q&A guide to construction and projects in Qatar.

The Q&A is part of the global guide to construction and projects. Areas covered include trends and significant deals, the main parties, procurement arrangements, transaction structures and corporate vehicles, financing projects, security and contractual protections required by funders, standard forms of contract, risk allocation, exclusion of liability, caps and force majeure. Also covered are material delays and variations, appointing and paying contractors, subcontractors, licences and consents, project insurance, labour laws, health and safety, environmental issues, corrupt business practices and bribery, bankruptcy and insolvency, public private partnerships (PPPs), dispute resolution, tax, the main construction organisations, and proposals for reform.

Qatar – An Opportunity for Operation and Maintenance PPPs

By: Pawel Piotrowski and Hena Sial

According to MEED.com Qatar awarded projects worth over US$136 billion between 2011–2020. Over the last decade, the focus of Qatar’s investment has been on the development of infrastructure related to the FIFA World Cup to be hosted in 2022. This includes stadiums and ancillary infrastructure such as metro lines, an airport expansion, expressways, and hotels.

In light of the great investment made by Qatar and with much of this infrastructure already built and the rest well underway, it may be worth shifting focus to the future of such infrastructure. Some questions that may assist such inquiry include, what are the best means to utilize this infrastructure to its full potential and how to best fund and deliver long-term infrastructure improvements that may be required over the upcoming decades.

In this article we will consider:

  • What are the benefits of using PPPs in the context of long-term O&M and infrastructure rehabilitation
  • How Qatar may utilize the existing legal framework for PPPs to ensure proper maintenance and rehabilitation of the state infrastructure; and
  • How PPPs should be delivered in order to minimize the risk of potential failures.

K&L GATES HONORED WITH MULTIPLE QATAR BUSINESS LAW FORUM AWARDS

The K&L Gates Qatar-based Construction & Infrastructure team received two awards during the recent 2019 Qatar Business Law Forum Awards, retaining the “Property and Construction Firm of the Year” title for a second consecutive year, as well as earning a new recognition for “Alternative Dispute Resolution Firm of the Year.” The annual forum and awards ceremony recognizes exceptional achievement within Qatar’s legal community and is judged by a panel of nearly 30 industry leaders, academic practitioners, and government officials. The firm is honored to receive these awards, which highlight our commitment to not only the Qatari market but also our Middle East practice.

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Good Faith in the Middle East

By Darran J. Jenkins, K&L Gates, Doha

The concept of good faith as applicable in the Civil law jurisdictions of Qatar and the United Arab Emirates (“UAE”) is one that may be unfamiliar to lawyers from a common law background where good faith is applies in a very limited fashion, if at all. [1]

The Position in the Middle East

The position in Qatar is set out in Article 172 of the Qatar Civil Code[2]:

1.    The contract must be performed in accordance with its contents and in a manner which consistent with the requirements of good faith.

2.    The contract is not confined to obliging a contracting party to its contents, but also includes its requirements in accordance with the law, custom and equity as per the nature of the obligation.

The corresponding article in the UAE Civil Code[3] is Article 246 which states:

“(1)     The contract must be performed in accordance with its contents, and in a manner consistent with the requirements of good faith.

(2)     The contract shall not be restricted to an obligation upon the contracting party to do that which is (expressly) contained in it, but shall also embrace that which is appurtenant to it by virtue of the law, custom, and the nature of the transaction.”

In Bahrain, Article 127 of the Civil Code[4] requires:

A contract is not only limited to its expressed conditions, but also as regards everything which according to law, usage and equity is deemed in view of the nature of the obligation, to be a necessary sequel to the contract, taking into consideration custom and usage, requirements of equity, nature of business, good faith and honesty.”

And Article 129 provides:

A contract must be performed in accordance with its contents and in compliance with the requirements of good faith and honesty.”

Each of these Civil Codes takes an almost identical approach to the treatment of good faith. As a result, a contract will not be interpreted using solely its terms but will be interpreted against the requirements of customs, equity and good faith.

The requirement to act in good faith is a strong, positive obligation on the parties to a contract.  It is not merely a requirement not to act in bad faith and not to deceive one another. Each party is instead under a legal obligation to exercise good faith in the performance of its contractual obligations and it is dealings with the other party. In a construction context, the duty of good faith would require an employer to cooperate with the contractor and deal with change requests in a timely and fair manner, whilst a contractor would be obliged to avoid delaying the performance of their works.

It is interesting to note that the obligation within the Qatar Civil Code is to perform the contract in good faith but it does not extend to negotiating the contract in good faith. The parties are free to adopt an adversarial approach to negotiation of the contract to try to obtain the best possible deal for themselves. Only once the contract has been signed does the duty to act in good faith arise.

In relation to insurance contracts, the duty to perform in good faith under the Civil Code does not in any way limit the duty of the insured to act with utmost good faith when placing the policy.  This is because the Civil Code also recognizes and enforces a higher standard of care where the parties have agreed it should apply.

[1] Please note, all English extracts in this Article are taken from an unofficial English translation of the Qatar and UAE Civil Code, reference should always be made to the original Arabic text.

[2] Law Number 22 of 2004

[3] Law Number 5 of 1985

[4] Law Number 19 of 2001

Liquidated Damages in the UAE, Qatar, and Saudi Arabia

By Harriet C. Jenkins, K&L Gates, Doha

INTRODUCTION

Liquidated Damages (LDs) are treated very differently across the Gulf region and from the position as understood within the English common law jurisdiction.

The universal starting point for LDs is in contract; parties should pre-determine the rate of damages a contractor should pay to the employer in the event of a (specified) breach, most commonly that of late completion.  For the purposes of this article, we shall consider LDs solely in the context of delay damages, whereby in the event of delay to project completion, an employer can demand a fixed compensatory sum from the contractor.

The position of the civil law jurisdiction of the Middle East is very different from that understood within the English common law system.   It is commonly accepted that English courts are generally very reluctant to look beyond the contractual position and open up any agreed position on LDs.[1]  Across the Gulf however, differing civil codes empower courts (and tribunals) to look behind the parties’ contract and adjust delay damages based upon principles of actual loss and fairness.

This article discusses the differing treatments of LDs across three Gulf jurisdictions (namely, the United Arab Emirates, Qatar and Saudi Arabia), and reveals what parties can expect in regards to their compensation for delay.[2]

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Construction Law Masterclass: FIDIC in Qatar

On 15 May 2014, K&L Gates presented an interactive workshop in Doha based around a real-life construction scenario to a group of owners, developers, contractors and professional consultants involved in construction in Qatar and the GCC.

Topics covered included:

  • Drafting FIDICs in a Gulf context
  • An Employer’s view of risk allocation under FIDIC
  • The new Ashghal contract – a new dawn for FIDIC?
  • Common pitfalls and mistakes operating FIDIC on a project in Qatar
  • Dispute provisions in FIDIC Arbitration/Courts
  • Other arbitration forums in Qatar & the UAE, and problems associated with enforcement

To download a copy of the presentation, click here.

For more information, please contact Matthew Walker.

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