Citation: [2022] DIFC CA 016
The DIFC Court of Appeal has handed down judgment in Panther Real Estate Development LLC v Modern Executive Systems Contracting LLC: a delay claim and termination dispute arising out of a construction project on a FIDIC 1999 (red book) contract.
The case considered a number of grounds of appeal and cross appeal, with a few key points being:
– consideration of Obrascon v AG for Gibralter (2014) (Akenhead J): when time starts for the purposes of giving notice under FIDIC clause 20.1; the DIFC CoA disagreed with the TCC decision;
– rejection of Gaymark v Walter Construction (1999);
– consideration of the interface between (1) the parties’ duties of good faith under DIFC law and (2) the operation of contractual conditions precedent barring an otherwise valid claim;
– whether clauses requiring that a claim be pursued within a fixed period of time (an amended clause 3.5 or clause 20.1) offend against the DIFC Contract Law governing prescription or limitation (article 123).
This judgment is likely to be of interest to those brining or contesting a delay claim under a FIDIC form, in the MENA region or elsewhere. Of particular interest will be the extent to which the approach adopted towards the DIFC good faith obligation in this judgment might be considered in arbitrations subject to eg UAE law / civil code systems where the good faith obligation is relied upon to defeat time bars.
Justin Mort KC, instructed by Al Tamimi & Company, acted for the Claimant/Respondent/Cross-Appellant.
