United Arab Emirates: Concurrent Delay: From North Sea To Arabian Gulf

Last Updated: 12 December 2017
Article by Alastair Young and Jodie Reindorf

Questions surrounding which party is at fault and which party bears the risk commonly occur in construction projects where there are issues of concurrent delay.

Concurrent delay arises where there are two or more events of equal causative potency, where one event is the fault of the Contractor and the other of the Employer. Last month's TCC decision in North Midland Building Limited v. Cyden Homes Limited [2017] EWHC 2424 further contributed to this ongoing discussion, clarifying the position of English law on concurrent delay.

In this article, we discuss the impact this English law decision could have on the construction market in the UAE and broader region.

The English law position

Generally, English law considers the question of causation in a significant amount of detail. Though there is little guidance in this area by way of statute, over time, different causation-related concepts have emerged from common law, including:

  • "but-for" causation: where a loss is deemed to have been caused by an event if, but for the event, the loss would not have occurred; and
  • the prevention principle: in the situation where a contractor is prevented from progressing his work as a result of an act by the Employer and therefore unable to complete by the agreed completion date, in the absence of any contractual mechanism, time under the contract becomes "at large" and the contractor is no longer bound by the completion date, but must complete the works within a reasonable time.

Construction contracts will usually provide a set of circumstances under which the Contractor can claim an extension of time (EOT) and compensation for additional costs and expenses, if delays in the progress of construction work are caused by external factors outside his control. However, the waters are muddied where a delay is caused by two or more concurrent factors where one is the fault of the Contractor, and the other the fault of the Employer.

The general position under English law is that the Contractor can claim an EOT where the delay is caused by factors covered in the relevant contractual provisions, even if these factors are not the sole cause of the delay. The common law presumption is that the parties have agreed to grant EOTs as long as the factor relied upon has at least equal causative potency as the other factors, unless there is an agreement to the contrary.

The North Midland case

North Midland Building Limited v. Cyden Homes Limited was a construction case where the Employer, Cyden, appointed North Midland Building Limited as the Contractor for the construction of a stately home. Over the course of the project, works were delayed by two concurrent factors: one was the fault of Cyden and the other was the fault of North Midland. The factors were of equal causative potency and each had caused a significant amount of delay to the works. However, the contract provided as follows:

  1. any of the events which are stated to be a cause of delay is a Relevant Event; and
  2. completion of the Works or of any Section has been or is likely to be delayed thereby beyond the relevant Completion Date,
  3. and provided that

    1. the Contractor has made reasonable and proper efforts to mitigate such delay; and
    2. any delay caused by a Relevant Event which is concurrent with another delay for which the Contractor is responsible shall not be taken into account
    then, save where these Conditions expressly provide otherwise, the Employer shall give an extension of time by fixing such later date as the Completion Date for the Works or Section as he then estimates to be fair and reasonable.

In other words, where each party was the cause of factors resulting in concurrent delay, the parties were to disregard the factor caused by Cyden. The court upheld the contract and ruled that, because there were contractual provisions to the contrary, North Midland had lost the right to invoke the prevention principle1 to make time at large.

The UAE law position

One place where the North Midlands decision would have application in the UAE is in the DIFC courts, an "offshore" free zone in Dubai, whose legal system is derived from English law. It is possible that the case may guide DIFC court decisions in future cases where concurrent delay arises.

However, what is less clear is how the North Midlands case could affect the interpretation of construction contracts in traditional UAE law. Being a civil law jurisdiction, UAE law bears some marked differences to English law and, furthermore, the law of causation is less developed than in England. There is no "but for" causation and no prevention principle to guide us when deciding who bears the risk in difficult factual matrices involving concurrent delay.

Under UAE law, in the absence of a contractual provision addressing concurrent delay and without a prevention principle, it is difficult to predict how issues of concurrent delay would be resolved. A court would have to look beyond the contract to the intention of the parties deduced from contemporaneous correspondence to give the contract meaning in the facts. In certain cases, it may be easy to identify what the parties intended. However, it may be more difficult to deduce whether the parties planned to apportion the liability for jointly-caused delays, or whether they had another method in mind for allocating risk.

Even if, like in North Midlands, there is a contractual provision addressing concurrent delay, there is a concern about the duty of good faith that exists not only in UAE law, but in other civil law jurisdictions across the Gulf. The duty of good faith means that even where there is an agreement between the parties as to how EOT claims will be handled, the contract could be enforced according to how the court sees fairest (and not necessarily in line with a strict reading of the contract).

It is now accepted practice in the Gulf that where concurrent delays arise, the parties apportion the liability for the delay between them2. This is likely to be most helpful with respect to apportioning damages for delay. However, it is not clear how this would apply with respect to EOT claims. Furthermore, the process of apportionment will necessarily require input from a judge or arbitrator as to how the costs ought to be divided. With no prescribed formula for apportionment of liability, this area of law will be subject to large amounts of judicial and arbitral discretion in future decisions, and we can expect more uncertainty in this area of law for some time to come.


1. For more information on the details of the case and the prevention principle, see Dentons article " Contracting parties can agree up front who will take the risk of concurrent delay"

2. See "Construction Law in the United Arab Emirates and the Gulf" 1st ed., Michael Grose, pp 131-134

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
23 Jan 2019, Seminar, Los Angeles, United States

Dentons is pleased to offer a full day of classes, just in time for the California MCLE compliance period deadline of January 31, 2019.*

24 Jan 2019, Other, New York, United States

Join Dentons’ Health Care Partner Lori Mihalich-Levin and White Collar & Government Investigations Counsel Christine Genaitis as they lead conference sessions at AHLA Academic Medical Centers and Teaching Hospitals Institute.

30 Jan 2019, Other, Chicago, United States

Please join us on January 30, 2019, for the Fifth Annual Courageous Counsel Leadership Institute. This year's theme is "Risk and reward: Creating a culture that promotes innovation, change and growth.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions