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.
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. 
The Position in the Middle East
The position in Qatar is set out in Article 172 of the Qatar Civil Code:
“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 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 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.
 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.
 Law Number 22 of 2004
 Law Number 5 of 1985
 Law Number 19 of 2001
By Harriet C. Jenkins, K&L Gates, Doha
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. 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.
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.