The courts have opened a one month public consultation on the draft rules for the division. These are based on and follow the structure of the UK's Technology and Construction Court (TCC) practice directions and include very similar, though, in some respects, slightly simplified provisions.
For example, the draft rules provide for only a single TCD judge to be appointed and are slightly more limited in the scope of disputes which may be dealt with by the proposed new division. The case management conference procedure is similar to that of the UK's TCC, although notably, the draft TCD rules expressly provide for the court to make orders in respect of a court-appointed expert and inspections, and the production of a 'Scott schedule', itemising the claims and the other party's response.
Unlike the UK's TCC pre-trial review procedure the TCD's proposed pre-trial review does not appear to be compulsory, although it proceeds in a similar way and requires the parties to complete a pre-trial review questionnaire in a very similar form to that of the TCC.
The introduction of a specialist TCD in the DIFC courts could be a positive step in the UAE, particularly if parties to relevant disputes have access to an appropriately qualified and experienced judge. The TCD would provide an English-language forum which has the potential to be more time and cost effective than other forums. In this regard the establishment of the TCD may affect the number of litigants using the local UAE courts, the proceedings of which are in Arabic only, and the conduct of arbitration in the UAE, in particular at the Dubai International Arbitration Centre.
As a court division the proceedings in the TCD would lack the confidentiality that comes with arbitral proceedings, but this potential disadvantage may be off set by the attraction of a cheaper and more streamlined proceeding, especially in the case of smaller disputes..
Both parties and their advisors should consider the drafting of dispute resolution provisions in relevant contracts to ensure that the new division can be adopted as a possible forum for dispute resolution.
This consultation follows closely on the expansion of the DIFC courts' jurisdiction earlier this month to include labour law claims and actions arising out of labour contracts signed between DIFC-established entities and their employees. It remains to be seen how popular a specialist technology and construction division will be in practice, but given the continuing high levels of construction and technology related disputes in the UAE, it will certainly provide a viable alternative to arbitration which is currently the 'go to' forum for dispute resolution, in particular of construction disputes, in the UAE.
Dubai-based Mark Raymont is a construction and engineering law expert with Pinsent Masons, the law firm behind Out-Law.com.