Introduction: Understanding Concurrent Delay and Shared Accountability in UAE Projects

In today’s dynamic UAE construction and infrastructure landscape, timely project delivery is a critical driver of commercial success and legal compliance. However, the reality of major projects often involves complex interactions, unforeseen obstacles, and—inevitably—delays. Among the most challenging delay scenarios is ‘concurrent delay.’ This occurs when both employer (such as a developer or government) and contractor actions or omissions independently cause delays during overlapping timeframes. As the UAE pursues ambitious development agendas under Vision 2025 and beyond, understanding how tribunals allocate responsibility for such delays has become crucial for project owners, contractors, consultants, and legal professionals alike.

Recent changes in UAE laws, updated regulatory interpretations, and sophisticated dispute resolution mechanisms have added further complexity—and opportunity—to addressing concurrent delay claims. This article provides in-depth analysis of concurrent delay in the UAE, describes legal frameworks governing risk allocation, and offers practical strategies for minimizing exposure. It is tailored to inform business leaders, legal practitioners, and HR professionals managing contractual and compliance risks in the UAE market.

Table of Contents

Statutory Underpinnings and Contractual Norms

While the UAE’s construction sector is often governed by bespoke contracts, statutory guidance remains foundational. The cornerstone legislation is the Federal Law No. 5 of 1985 (the ‘UAE Civil Code’), supplemented by regulations such as Federal Decree-Law No. 6 of 2021 (recent amendments), Cabinet Resolutions, and provisions from the UAE Ministry of Justice. FIDIC-based contracts—favoured in large-scale UAE projects—also heavily influence delay analysis. However, when parties dispute responsibility for delays, it is UAE law and the interpretations of local courts and arbitral panels that prevail.

Key UAE Law References

  • Article 246, UAE Civil Code (Federal Law No. 5 of 1985): Establishes the requirement for parties to perform contracts in good faith.
  • Article 390, Civil Code: Provides that the party suffering harm due to a breach is entitled to compensation, subject to agreed limitations.
  • Articles 872–896, Civil Code: Address the contract of muqawala (works contracts), including provisions for delays.
  • Federal Decree-Law No. 6 of 2021: Introduced refinements to contractual obligations and the allocation of risk.

Defining Concurrent Delay in the UAE Context

Concept of Concurrent Delay

The term ‘concurrent delay’ typically refers to a situation where two or more delay events—arising independently from the employer and the contractor—occur during overlapping periods, each capable of causing project delays. In many international contexts, concurrent delay is a source of significant controversy regarding the apportionment of blame and the entitlement to extensions of time (EOTs) and/or financial compensation.

UAE’s Unique Approach

While FIDIC provisions offer guidance on extensions of time, the UAE judiciary and arbitral tribunals have developed a distinctive approach grounded in principles of good faith, causation, and equitable risk sharing, with emphasis on the actual impact of each party’s actions and the specifics of the contract at hand.

Relevant Legal Provisions

  • UAE Civil Code, Article 882: Specifies that the contractor is not responsible for delays caused by the employer or force majeure events.
  • Article 246 and 290: Require good faith performance and limit liability in case of contributory negligence.
  • Federal Decree-Law No. 6 of 2021: Emphasizes equitable allocation of risk and updated remedies for breaches in contractual obligations.

Ministry and Governmental Guidance

The UAE Ministry of Justice periodically issues circulars and clarifications guiding the judiciary on applying delay-related provisions, referencing international best practices and regional legal principles. In addition, Cabinet Resolutions—such as those governing contractual force majeure distillations (see Cabinet Resolution No. 33 of 2020)—inform the handling of exceptional delay events.

How UAE Tribunals Address Concurrent Delay

Judicial and Arbitral Practice

Unlike some common law systems, UAE tribunals do not apply a rigid “first cause” or “prevention principle” approach. Instead, they seek a pragmatic, evidence-based determination of responsibility. The primary factors considered include:

  • Causation: Whether each party’s actions independently caused delay.
  • Actual Delay Impact: Detailed analysis of which delay (if any) was dominant and whether the delays truly overlapped in effect.
  • Contractual Terms: What the contract stipulates regarding extensions of time or compensation, including any modification by special conditions.
  • Good Faith and Equitable Risk Sharing: Per UAE Civil Code principles, courts favour a fair allocation based on proven conduct.

The Apportionment Doctrine

If both employer and contractor have contributed to the delay, tribunals may ‘split’ responsibility—often granting EOTs to the contractor while denying, limiting, or apportioning financial damages claims. This prevents either party from benefitting unfairly from their own acts or omissions. Notably, compensation may still be adjusted based on evidence and proportionality.

Illustrative Table: Tribunal Approaches

Tribunal Delay Analysis Principle Compensation Implications
UAE Local Courts Fact-driven analysis of causation, contractual risk, and balance of justice Extension of time often granted; monetary claims may be proportionally reduced
UAE Arbitral Panels Reflect international practice but apply UAE law; focus on evidence and contract language Grant EOT, apportion damages, or dismiss claims lacking proof

Old vs. New Approaches: Key Developments in Handling Delay

Evolution of Legal Thinking

The approach to concurrent delay has evolved with the 2021 reforms and updated Cabinet Resolutions. Below is a comparative analysis.

Aspect Before Decree-Law 6/2021 After Decree-Law 6/2021
Good Faith Principle Applied but less emphasized in delay apportionment Central to determining fair risk allocation, per updated statutes
Compensation for Concurrent Delay Uncertainty; some courts followed ‘no compensation’ for concurrent delay Proportional apportionment and evidence-based damages adjustments
EOT Claims Rigid or inflexible—often all-or-nothing outcomes Greater flexibility; partial EOTs to reflect causation and contractual terms
Force Majeure/Exceptional Events Limited mechanisms for extraordinary circumstances Broader protection and clearer Cabinet guidance (see Resolution 33/2020)

Case Studies and Hypotheticals: Concurrent Delay in Action

Real-World Example 1: Infrastructure Project

Facts: A UAE government entity awarded a major roadworks contract. The employer delayed site access by 30 days, while the contractor simultaneously failed to procure critical materials for 25 of those days.

Outcome: The tribunal found the delays overlapped for 25 days. Based on evidence and the principle of good faith, the contractor was granted an EOT reflecting only the employer-caused delay, with no entitlement to monetary damages during the period of concurrent delay. Responsibility for non-overlapping delay days was split accordingly.

Visual Suggestion:

Insert a Gantt chart showing employer and contractor delay periods, overlap, and resulting EOT grant.

Real-World Example 2: Commercial Tower Project

Facts: The employer changed major architectural requirements, causing a 40-day delay. Simultaneously, the contractor’s workforce was insufficient, adding another 40 days in the same period.

Tribunal Ruling: The evidence did not distinguish each party’s unique contribution, so both were denied their respective claims for compensation, but the contractor received an EOT for 40 days to avoid unfair penalty.

Practical Insight:

These examples underscore the critical importance of robust documentation and contemporaneous records. Parties who clearly track causes and effects of delays greatly improve their chances of a favourable outcome.

Mitigating Risks: Compliance and Best Practices for UAE Entities

Key Risks of Non-Compliance

  • Financial Exposure: Failure to properly apportion responsibility can result in unnecessary penalties or uncompensated losses.
  • Reputational Damage: Prolonged disputes or unfair claims can harm business relationships and brand standing.
  • Legal Proceedings: Weak records and lack of contractual clarity often lead to expensive, time-consuming litigation or arbitration.

Best Practice Checklist (Visual Suggestion: Compliance Checklist Table)

Best Practice Description
Contract Drafting Incorporate clear risk allocation, EOT, and concurrent delay clauses based on latest legislation
Contemporaneous Record-Keeping Keep detailed diaries, emails, and progress reports to evidence delay causes
Regular Contract Reviews Update template contracts to reflect new legal standards and Cabinet Resolutions
Active Delay Mitigation Implement strategies for minimizing both client- and contractor-caused disruptions
Legal Training Invest in legal awareness for project and HR managers to recognize and address concurrent delay risk early

Consultancy Insight

Organizations should seek periodic legal reviews to align their contracts and project management protocols with current UAE law, especially in light of legal reforms. This is especially significant in projects involving government or semi-government clients, who may be subject to stricter reporting and audit requirements.

Conclusion: Future Directions and Best Practices in Project Delivery

The approach of UAE courts and arbitral panels towards concurrent delay reflects a maturing legal ecosystem, balancing international best practices with local legal traditions and statutory reforms. The 2021 legal updates, together with proactive Cabinet guidance, signal a drive towards fairer, more predictable outcomes in complex project disputes. Businesses operating in the UAE should expect this trend to continue, with increasing emphasis on documentation, good faith conduct, and risk-sharing as the foundation of successful project delivery and dispute resolution.

In summary:

  • The legal framework now fundamentally supports fact-based, equitable allocation of delay responsibility.
  • Compliance best practices focus on contractual clarity and comprehensive records.
  • Ongoing legal reforms and regulatory guidance will further clarify rights and obligations for all parties.

We recommend all stakeholders to consult UAE-qualified legal counsel in order to update contract standards, develop robust delay management systems, and stay ahead of regulatory developments as the UAE enters a new era of infrastructure and commercial expansion.