Introduction: The Rise of Expert Determination in UAE Engineering Disputes

In the dynamic world of engineering and construction in the United Arab Emirates (UAE), legal and contractual disputes are almost inevitable due to the complexity, scale, and pace of such projects. Against this backdrop, the mechanism of expert determination has gained significant traction as a dispute resolution method that balances technical precision with procedural efficiency. Recent changes in UAE law—reflected in updated Federal Decrees and ministerial guidance—have further clarified the legal standing and effectiveness of expert determination, making it a critical consideration for businesses, contractors, consultants, and investors operating in the country. This article explores how expert determination works in the UAE context, when it offers the most value, the regulatory frameworks that underpin it, and the practical steps to maximise its benefits in engineering disputes.

The relevance of this topic is underscored by an evolving legal landscape: new guidelines on dispute resolution under the UAE Federal Law No. 6 of 2018 on Arbitration and updated practices from ministries such as the Ministry of Justice and the Ministry of Energy and Infrastructure have cemented expert determination as a preferred tool for resolving technically complex disputes without the time and costs associated with litigation or even arbitration. As the UAE aims to further position itself as a global hub for engineering and infrastructure investment, understanding the nuances of this mechanism is not just advisable—it is essential for legal compliance, risk management, and commercial success in 2025 and beyond.

Table of Contents

Legal Framework and Overview: Expert Determination in the UAE

Defining Expert Determination within UAE Legal Context

Expert determination is a consensual, contractual process for resolving disputes—often technical in nature—by appointing an independent expert whose decision is typically binding on the parties. Distinguished from arbitration and litigation, expert determination is valued for its speed, confidentiality, and reliance on specific technical expertise rather than purely legal reasoning.

Citation of UAE Laws and Regulations

While UAE law does not have a single statute dedicated solely to expert determination, its foundation can be traced to:

  • UAE Civil Transactions Law (Federal Law No. 5 of 1985), which governs contracts and allows parties wide autonomy to structure dispute mechanisms.
  • Federal Arbitration Law (Federal Law No. 6 of 2018), which defines the scope of alternative dispute resolution but clarifies that expert determination is distinct from arbitration (see Article 1, UAE Federal Arbitration Law).
  • Ministerial Circulars from the Ministry of Justice, which have addressed the admissibility and enforcement of expert determinations, particularly regarding construction and engineering disputes.

How the Mechanism Operates

Parties typically insert an expert determination clause into their contracts. This clause outlines:

  • The triggering events (e.g., a dispute over payment certification, valuation of variations, or assessment of delay damages).
  • The process for nominating and appointing the expert, often referencing bodies such as the Society of Engineers – UAE or the Royal Institution of Chartered Surveyors (RICS).
  • The scope of the expert’s authority and the binding or non-binding nature of the expert’s opinion.
  • The procedure for submissions and hearings, where applicable.

Ministerial guidance—such as Circular No. 17 of 2020—reinforces that UAE courts will generally honour parties’ agreements to submit technical disputes to expert determination, provided the process is contractually stipulated and there is no contravention of public order.

Comparison Table: Arbitration vs. Expert Determination in the UAE

Aspect Arbitration (Federal Law No. 6 of 2018) Expert Determination
Governing Law Express statute – formalised proceedings Contractual basis, flexible procedures
Appointed Individual Arbitrator (usually a legal specialist) Subject-matter expert (engineer, surveyor, etc.)
Enforceability Enforceable as an arbitral award Subject to challenge only for procedural unfairness or contract breach
Costs and Duration Relatively higher; can be protracted Generally lower and faster
Appealability Limited judicial review Normally final and binding if so agreed

When and Why Expert Determination Works in UAE Engineering Disputes

Types of Disputes Suited for Expert Determination

Engineering contracts in the UAE often feature disputes where technical, not legal, judgement is paramount. Common scenarios include:

  • Disagreements over measurement or valuation of works completed
  • Technical compliance issues (design defects, materials quality standards)
  • Delay analyses and the quantification of time extensions
  • Calculation of performance metrics or milestone achievements

In these cases, expert determination can deliver swift, informed resolutions, minimising disruption to ongoing projects and preserving commercial relationships.

Key Success Factors in UAE Practice

In the UAE context, expert determination works best when:

  • Contracts are explicit about the scope, process, and effect of expert determination
  • Expert selection is neutral, with agreed-upon credentials or institutional nomination
  • There is a clear delineation between disputes of fact/technicality (suitable for expert determination) and law/contract interpretation (may require arbitration or litigation)

Legal advisors frequently recommend hybrid clauses, stipulating non-binding expert determination for factual issues (with escalation to arbitration if needed), or binding determination for discrete valuation/certification questions.

Recent Trends: Increasing Use in Government and Mega-Projects

Following the issuance of Federal Arbitration Law and Ministerial Circulars (2020-2023), several major government and government-linked entities—such as the Abu Dhabi Department of Municipalities and Transport, and Dubai Municipality—have standardised expert determination in their suite of engineering and infrastructure contracts. Notably, FIDIC-based UAE contracts, after updates to the 2017 Red and Yellow Books, have integrated detailed expert determination options with reference to local procedural law.

Clarifications on Legal Status in Recent Federal Decree

The most impactful recent development is the Federal Decree-Law No. 42 of 2022 on Civil Procedures (as amended through 2025), which expressly recognises contractual autonomy in dispute resolution, including expert determination, provided that core due process rights are respected (see Articles 56–62).

The Ministry of Justice’s updated guidance in early 2024 reiterated that courts must respect parties’ agreements for expert resolution on technical matters—unless there is demonstrable evidence of unfairness or manifest error.

Comparative Table of Old and New Legal Frameworks for Dispute Resolution

Legal Aspect Prior to Law 42/2022 Under Decree-Law 42/2022 (as amended 2025)
Contractual Autonomy Accepted, but subject to court override Expressly protected unless contravening public order
Challenge to Expert Decisions Often re-opened in court Narrow grounds for challenge only (e.g., manifest error, lack of impartiality)
Integration with Arbitration Frequently unclear Now commonly combined in tiered clauses, reinforced by Ministerial Guidelines
Role of Institutional Nomination Rare Increasing use—endorsed by ministries and key engineering bodies

Due Process and Enforcement Insights

For an expert determination to be enforceable, it must comply with minimum procedural requirements—advance notice of appointment, right to make submissions, impartiality, and no breach of public order. The new Civil Procedures Decree further narrows the circumstances under which a UAE court will review or set aside an expert’s decision. Parties are thus afforded greater commercial certainty and predictability—a trend underlined by recent enforcement cases in Abu Dhabi and Dubai Courts (see Federal Judicial Gazette, 2023-2024).

Recommended Contractual Clauses for Compliance (Sample)

Legal consultants recommend that, for compliance with updated laws, contracts should specify:

  • Clear scope of disputes subject to expert determination
  • Detailed appointment mechanism (name institution or set criteria)
  • Process for exchange of submissions
  • Explicit binding nature of the expert’s decision, with any permitted exceptions

Visual suggestion: A compliance checklist infographic outlining required expert determination clause elements under Decree-Law 42/2022.

Case Studies and Strategic Insights for UAE Businesses

Case Study 1: Expert Determination in Mega-Project Delay Claims

Scenario: An Emirati-government backed infrastructure project faces significant delays, with disputes arising between the main contractor and consultants over entitlement to time extensions and compensation. The contract, referencing FIDIC Red Book and amended per Decree-Law 42/2022, stipulates binding expert determination for technical matters.

Outcome: A qualified delay analysis expert, nominated by the Society of Engineers, issues a determination granting a partial extension and recalculated compensation. With the legal grounding of Law 42/2022, the decision is upheld, and the project proceeds without arbitration. Parties save extensive legal costs and months of delay.

Case Study 2: Valuation Dispute in Building Renovation Contract

Scenario: A Dubai-based real estate developer engages a contractor for a high-value renovation. Disputes arise over variations and value engineering. The contract contains an expert determination clause, referencing RICS for appointment.

Outcome: The expert’s report, supported by technical site visits and document review, produces a binding and enforceable decision. No party challenges the outcome, and the decision is honoured without court involvement. Both parties acknowledge the technical soundness of the ruling.

Consultancy Insights and Practical Recommendations

  • Early Adoption is Key: Insert detailed expert determination clauses at contract drafting, not as an afterthought
  • Neutral Expert Selection: Use credible institutions for appointment to avoid perceived bias
  • Escalation Clauses: Where appropriate, combine non-binding expert determination with arbitration as a fallback on mixed legal/technical issues
  • Documentation Management: Preserve all records relevant to the technical dispute, as the expert’s decision will be heavily document-based

Sample Process Flow Diagram

Suggested Visual: A process diagram showing: Contract triggers dispute → Parties agree on expert/nomination → Submissions exchanged → Expert decision issued → Decision implemented or escalated if permitted.
Clear, visual step-by-step summary for client contracts.

Risks of Non-Compliance and Mitigation Strategies

Legal and Commercial Risks

  • Ignoring or Unclear Contractual Provisions: May result in courts declining to honour the expert’s decision, forcing parties into protracted litigation or arbitration.
  • Procedural Failures: Appointment of a conflicted or unqualified expert, or lack of due process (e.g., one party not heard), can render the determination unenforceable under the Civil Procedures Decree.
  • Public Order Constraints: If the determination violates UAE public order, courts may intervene regardless of contract wording (e.g., illegality, fraud).

Best Practice Mitigation Strategies

Risk Area Mitigation Strategy
Vague expert determination clauses Engage legal consultants at drafting stage to align with Decree-Law 42/2022
Potential expert bias/conflict Insist on institutional nomination or strict qualification criteria
Unclear enforcement pathways Stipulate explicit process and integrate with escalation provisions
Poor documentation Maintain documentary discipline, anticipating possible expert review or court challenge

Conclusion and Future Outlook

Expert determination is a stalwart of risk management and commercial certainty for engineering and construction disputes in the UAE, thanks to enhanced legal clarity from the Federal Decree-Law No. 42 of 2022 (as amended 2025) and authoritative ministerial guidance. As more organisations adopt standardised expert determination clauses, and as government and megaproject sponsors lead by example, the prevalence and reliability of this method will only increase. The shift away from blanket arbitration and lengthy court proceedings towards specialised, expedited resolution aligns with UAE’s ambitions as a regional and global construction powerhouse.

Best Practice Advice: To maximise the value and enforceability of expert determination, businesses should:

  • Engage legal advisors at the contract-drafting stage to tailor expert determination clauses in line with the latest legal updates
  • Follow procedural best practices, ensuring appointment neutrality and fair process
  • Integrate expert determination with wider dispute-resolution protocols, leveraging the improved legal certainty of current UAE law

Ultimately, understanding and optimising expert determination is not just a matter of contract compliance but a competitive advantage in the UAE’s fast-paced engineering sector. Staying ahead of legal updates and industry trends will ensure organisations are well-positioned as the legal landscape continues to evolve in the coming years.