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Middle East project disputes increasing

8 November 2023

 

The number of project disputes recorded every year in the Middle East and North Africa (Mena) is trending upwards as project activity increases and the pressure grows to execute projects on a fast-track basis.

Greater use of fast-track project models, where project execution starts before all the details of the preparatory design work are complete, can lead to a “triple whammy” of design issues that trigger disputes, according to Jad Chouman, a partner and the head of Middle East for the consultancy HKA, which specialises in risk mitigation and dispute resolution.

The three key causes of disputes related to fast-track projects are changes to the scope, design information being issued late, and incomplete designs supplied to contractors.

“In many fast-track projects, they start work before the design is 100 per cent complete,” says Chouman. “The fast-track nature of these projects is a major reason why we are seeing what we refer to as the ‘triple design whammy’.

“Owners want the projects quickly and they push the contractors to start early, and changes to the designs can cause serious problems to the projects.”

Growing pains

Due to the expanding Mena projects market, increasing project complexity and growing tendency to use fast-track project schedules, Chouman says he would not be surprised to see an upturn in the volume of project disputes every year until 2030.

“The rise in disputes related to fast-track projects is something that we’ve noticed over the past two or three years,” he says.

“The very compressed time frames for projects means that if there is disruption due to a change or a delay to an approval, the overall impact of that delay is often magnified.”

HKA also says some contractors are not fully considering the impact of the shortage of skilled labour in the region when estimating how quickly projects can be executed.

While these are all significant challenges, HKA also has reason to believe that many of the disputes could be resolved amicably.

Saudi resolution

In Saudi Arabia, Chouman says a share of future disputes could be resolved amicably because the kingdom is so focused on rapid project execution and will want to avoid projects stalling due to drawn-out legal disputes.

“In order for projects to be successful and to be completed within a reasonable time period, it is in the interest of everyone that they are resolved amicably.”

Another factor that could reduce the number of legal disputes is the increased use of more collaborative contract models.

In these contracts, the parties share the risk. The main contractor usually gets involved in the project at an earlier stage so they have a say in how the design is created.

One model increasingly used in Saudi Arabia is the early contractor involvement (ECI) model.

Under the ECI model, a single contractor is selected at an earlier stage of the design process. This may be either at the concept or detailed design stages, depending on the employer client’s preference and the level of involvement required.

A key objective of using an ECI contract and selecting a contractor early is to allow the contractor to use its knowledge and experience to influence design decisions to increase buildability or value during the process.

The contractor is appointed by the client during the first stage to perform services similar to a professional consultant.

“One of the main positive impacts that this sort of contract is likely to have is avoiding the worst kind of disputes between clients and contractors,” says Chouman.

“At the end of the day, the leadership in Saudi Arabia wants to be successful and get things done, and because of this, they are going to want to try and resolve any delays or cost overruns in a fair and amicable way.

“There is significant project momentum in Saudi Arabia and they want to maintain this positive environment.”

Arbitration centres

Dispute resolution processes have progressed significantly in several key markets in the Mena region over the past 20 years, which is having a positive impact on the projects market, according to Chouman.

He says Dubai and Abu Dhabi have developed mature arbitration processes that are competitive with international dispute resolution centres across the world.

The systems are maturing in Saudi Arabia and will soon reach a similar level.

“The development of these advanced dispute resolution centres has helped to make the UAE an attractive business hub,” says Chouman.

But while dispute resolution processes in some Mena markets parallel other world-leading hubs, the Middle East, on the whole, performs poorly in terms of project delays.

According to data collected by HKA, the average delay for projects in the Middle East is 82 per cent of the original time schedule.

This is high compared to the US, Europe, Asia and Oceania, where the average delay times are 59 per cent, 60 per cent, 63 per cent and 49 per cent.

Africa is the only continent that performs worse than the Middle East, with average project delays of 83 per cent of the original project schedule.

A key reason for the significant delays in the Middle East is the size of the projects market and complexity of the projects, says Chouman.

“It is a market with a lot of ambitious projects both in terms of size and complexity,” he says. “Additionally, the clients and contractors are also being even more optimistic with their predictions for project completion times, which is a factor.”

With the Mena region’s projects market continuing to expand rapidly, there are plenty of opportunities for contractors. However, there is also a growing scope for delays and disputes over project execution.

As the region’s biggest markets push ahead with ambitious project plans, it remains to be seen whether they have put enough thought into dispute resolution frameworks and methods to keep construction issues out of the courts.

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Wil Crisp

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