Introduction

For decades, the construction sector in the United Arab Emirates (UAE) has underpinned the nation’s rapid urbanization and economic diversification. In this high-stakes environment, the role of the Engineer—entrusted with certifying claims, authorizing payments, and adjudicating variations—has gained new prominence and scrutiny. Recent legal developments, including updates under Federal Laws and regulatory guidance from UAE courts and arbitral tribunals, underscore a growing insistence on Engineers’ strict independence and impartiality. These expectations are now central in the adjudication of disputes, particularly under FIDIC (Fédération Internationale Des Ingénieurs-Conseils) contracts commonly used across the Emirates.

With the 2025 updates to UAE laws and renewed attention from entities such as the UAE Ministry of Justice and Federal Legal Gazette, businesses must understand both the legal framework and practical consequences of Engineers’ conduct. This article offers an expert legal analysis for executives, HR managers, in-house counsel, and other stakeholders who operate within the UAE’s legal and commercial context. We examine statutory requirements, prevailing judicial trends, and best practices, equipping your organization to mitigate risk, foster compliant relationships, and improve dispute outcomes.

Table of Contents

Overview of Relevant Laws and Regulations

The expectation of independence and impartiality for Engineers is anchored in UAE’s civil law tradition, regulatory framework, and contractual practices—especially within the construction, infrastructure, and development sectors.

  • Civil Transactions Law (Federal Law No. 5 of 1985): Article 246 enshrines the principle of good faith (“the contract must be performed in accordance with its contents and in a manner consistent with the requirements of good faith”). This applies directly to Engineers acting as contract administrators.
  • Federal Decree-Law No. 6 of 2018: Regarding Arbitration, especially as referenced in the interpretation of Engineer’s decisions during dispute resolution.
  • Relevant Circulars and Ministerial Resolutions: The Ministry of Human Resources and Emiratisation has also issued sectoral directives guiding Engineers’ ethical obligations and professional conduct—buildings on the UAE’s commitment to high standards of business integrity.
  • FIDIC 1999/2017 Red Book (widely incorporated into UAE projects): Clause 3.5, 3.7 sets out Engineers’ obligation to act “fairly” when making determinations between Employer and Contractor; though not law, the FIDIC standard is often enforced or interpreted by local courts and arbitral tribunals.

These instruments collectively recognize that the Engineer is not merely an Employer’s agent but often a quasi-arbitral figure and must therefore exercise their powers impartially—even where they are contractually appointed and remunerated by one party.

The 2025 UAE Law Update: Focus on Engineer’s Function

Recent Federal Decree-Law amendments and interpretative court rulings have clarified the intensity of scrutiny attached to Engineer’s decisions:

  • Increased emphasis on procedural transparency and written reasoning in the Engineer’s determinations;
  • Clarification that lack of independence or bias may underpin a challenge to enforceability (especially in disputes referred to local courts or domestic arbitral tribunals, as per Cabinet Resolution No. 57 of 2018 and its updates);
  • UAE courts have supported the trend of allowing re-examination of “biased” Engineer determinations, especially if the Engineer’s role is considered to have shifted from agent to quasi-adjudicator (see Dubai Cassation Court Case No. 266/2018).

FIDIC Standard, Local Practice, and UAE Case Law

Understanding the FIDIC Engineer’s Role

Under the FIDIC contract (most frequently the Red or Yellow Book, 1999/2017), the Engineer serves a dual function:

  • Agent of the Employer: Acting on the Employer’s instructions for day-to-day contract administration;
  • Quasi-arbitral Adjudicator: When making decisions or determinations on claims, extensions, or variations; here the Engineer’s duty to act impartially is paramount.

Clause 3.5 (1999) / 3.7 (2017) states that the Engineer “shall make a fair determination in accordance with the contract, taking due account of all relevant circumstances.” Compliance with this standard is central to Engineer’s conduct.

UAE Judicial Attitude: Recent Decisions

UAE courts and arbitral tribunals have repeatedly interpreted FIDIC and similar contracts to uphold the duality of the Engineer’s role but have imposed an enhanced duty of fairness when the Engineer is asked to determine disputes between the parties.

Notable illustrative cases include:

  • Dubai Cassation Court No. 266/2018: The court held that where the role of the Engineer involves making binding determinations affecting both parties’ rights, the Engineer must exercise independence, even where contractually appointed by the Employer.
  • Abu Dhabi Court of Cassation Case No. 651/JY/2019: The court questioned the enforceability of an Engineer’s determination where an apparent conflict of interest was documented (e.g., where the Engineer was involved in contract negotiations and failed to recuse themselves as a dispute adjudicator).
  • Dubai Court of Appeal Cases 516/2016 and 800/2017: Both reinforce the requirement for the Engineer to document impartiality and transparency in their process, and failure to do so may enable challenge under UAE arbitration and enforcement law.

These cases demonstrate that the UAE judiciary is willing and able to interrogate the Engineer’s compliance with standards of fairness, especially in the context of high-value construction disputes.

Suggested Visual: Role of the Engineer Flow Diagram

(Suggested placement of an infographic here showing the split between “Employer’s Agent” and “Quasi-Arbitral Adjudicator” with examples of tasks under each capacity.)

What UAE Tribunals Expect: Analysis and Trends

Key Tribunal Expectations for Engineers’ Conduct

Recent arbitral and court awards identify several clear expectations:

  • Procedural Fairness: Engineers are increasingly expected to ensure both parties can present their views and evidence, echoing the due process standards under UAE Civil Procedure Law (Federal Law No. 11 of 1992, as amended);
  • Transparency of Reasoning: A mere statement of outcomes is insufficient; detailed, evidence-based justifications should be provided for each determination;
  • Active Avoidance of Conflicts: Tribunals scrutinize possible direct and indirect conflicts, including prior relationships, financial interests, and involvement in disputed events;
  • Independence of Judgment: Even if contractually appointed by one party, Engineers are accorded a duty to separate their directive/agency responsibilities and their quasi-adjudicative duties.

Real-World Application: How Tribunals Measure Compliance

In practice, UAE tribunals evaluate the Engineer’s independence by examining:

  • The explicit terms of reference within the contract;
  • The degree of autonomy exercised in the determination process;
  • The degree to which both employer and contractor are kept informed and adequately heard;
  • The consistency of decisions with past precedent and their conformity to established standards;
  • Disclosure of relevant relationships, interests, or prior conduct.

A clear evolution has occurred in the way UAE law and legal practice treats the Engineer’s role in construction contracts, especially around fairness and independence. The following table outlines the principal contrasts:

Characteristic Before Recent Developments After Recent Developments (2024-2025)
Engineer’s Status Mainly regarded as Employer’s agent; findings occasionally final unless egregious error Recognized as both agent and quasi-adjudicator; must demonstrate independence when making determinations
Legal Scrutiny Judicial review rare unless gross misconduct or bad faith alleged More frequent judicial/arbitral inquiry into procedural fairness and independence, especially if challenged
Duty of Disclosure Not strictly mandated; disclosures rare Expectation of proactive disclosure of potential conflicts, prior involvement, or interests
Remedies for Bias Challenging Engineer’s determination uncommon, burden on challenger Easier to challenge; burden lighter if procedural irregularities or bias found
Documentation Brief summaries of reasoning acceptable Detailed, written, and evidence-based reasoning preferred or required

Suggested Visual: Penalty and Risk Comparison Chart

(Suggested placement for a chart summarizing the risks/penalties to parties if Engineer’s decisions are set aside for bias or lack of independence.)

Case Studies and Hypotheticals

Case Study One: Engineer Appointed from Project Inception

Scenario: Employer appoints Engineer firm at pre-contract phase. During project, disputes on change orders arise. Contractor alleges Engineer has sided exclusively with Employer, disregarding Contractor’s evidence on scope changes.

Legal Analysis: Under the new interpretive trend, a tribunal will examine:

  • Whether the Engineer considered Contractor’s submissions in detail;
  • If the Engineer’s determination is accompanied by cogent reasoning;
  • Any evidence of pre-existing bias or conflict due to early engagement.

Risk: If non-compliance or bias is established, the Engineer’s determination may be set aside, requiring potential re-determination or direct tribunal assessment.

Case Study Two: Non-Disclosure of Conflicts

Scenario: Engineer firm failed to disclose an organisational relationship with a subcontractor. Subsequently, the Engineer’s determinations are challenged as tainted by undisclosed conflict.

Legal Analysis: The tribunal references Federal Decree-Law No. 6 of 2018 and relevant Ministerial Resolutions to conclude the Engineer breached their duty of disclosure and impartiality.

Outcome: The Engineer’s findings are vacated, pending an independent expert’s review, which costs client parties additional time and increases liability exposure.

Suggested Visual: Compliance Checklist Table for Engineers

Compliance Requirement Description Practical Steps
Disclosure of Conflicts Identify and disclose any direct/indirect interest in the dispute Implement written conflict checks before adjudication
Written Reasoning Document all decisions with evidence-based explanations Standardize templates for determinations
Procedural Fairness Ensure both parties are invited to present their position Adopt meeting records and transparent correspondence
Separation of Roles Delineate operational and adjudicative responsibilities Assign independent personnel for dispute reviews where feasible

Legal Risks and Compliance Strategies

Main Legal and Commercial Risks

  • Unenforceable Determinations: If Engineer’s conduct is found lacking in impartiality, outcomes can be set aside, leading to delay, cost overruns, and damages exposure.
  • Reputational Damage: Parties and Engineer firms risk future exclusion from tenders or contractual relationships.
  • Potential Civil Liability: Engineering firms may be subject to claims for breach of contract or professional negligence if found to have caused loss due to partiality.
  • Consequential Dispute Escalation: Failure of an impartial determination increases likelihood of expedited progress to formal arbitration or court proceedings.

Risk Mitigation and Compliance Recommendations

  1. Institute Robust Internal Policies: Engineering firms should implement written policies for conflict checks, assignment separation, and procedural fairness.
  2. Standardize Reasoned Decision-Making: Consistent documentation of reasoning supports enforceability and limits allegations of bias.
  3. Engage in Transparent Communications: Both Employer and Contractor should be equally informed at each stage of the Engineer’s determination process.
  4. Proactive Legal Review: Employ legal counsel to review significant determinations or where the Engineer’s role may shift from “agent” to “adjudicator.”
  5. Regular Training: Invest in ongoing training for Engineers on their dual obligations and the evolving expectations of UAE law and tribunals.

Best Practices and Forward Outlook

Recommendations for Businesses and Engineer Firms

  • Maintain Documentation: Keep comprehensive records of all communications, invitations to the parties, and written explanations for decisions. This is essential both for compliance and for defending determinations in any subsequent litigation.
  • Review and Update Contract Templates: Consider incorporating clear and detailed procedural provisions regarding independence, impartiality, and disclosure obligations, aligned with FIDIC 2017 and recent UAE legal guidance.
  • Engage Independent Experts Where Necessary: For high-value or contentious disputes, consider third-party review of Engineer determinations before finalization.
  • Monitor Legal Developments: Regularly consult the UAE Government Portal, Federal Legal Gazette, and reliable legal advisories to remain current on evolving obligations and tribunal expectations.
  • Establish Escalation Protocols: Define clear processes for escalation and review of Engineer’s determinations, including triggers for independent review.

A Forward-Looking Perspective

As the UAE continues to modernize its legislative and regulatory approach, developments in 2025 and beyond will reinforce the crucial importance of independence and impartiality, not only for Engineers but for all professionals involved in certifying, adjudicating, or arbitrating disputes in complex infrastructure projects. Organizations committed to embedding best practices, supported by legal and procedural rigour, will be best placed to manage risk, enhance collaboration, and unlock the full value of their UAE investments.

Conclusion

The heightened focus on the independence and impartiality of Engineers by UAE tribunals reflects a broader shift in the Emirati legal and business landscape towards professionalism, transparency, and robust dispute resolution. For businesses, the implications are clear: non-compliance poses legal, commercial, and reputational risk, while proactive adherence opens doors to smoother project execution and enduring trust with counterparties. This evolving landscape demands that Employers, Contractors, and Engineers alike understand and implement the latest legal expectations—ensuring documentation, disclosure, and procedural fairness are embedded throughout their operations. By doing so, parties not only ensure regulatory compliance but also create a competitive advantage in the Emirates’ thriving construction and infrastructure sectors.