Liquidated Damages in Construction

Disputes Myth and Reality of the

Sought Predictability

26 October 2022
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Overview of
AACE Qatar Section
Liquidated Damages in
Construction Disputes Myth
and Reality of the Sought
Predictability
Liquidated Damages in Construction Disputes
Myth and Reality of the Sought Predictability
This is a joint webinar presented by the CIArb Qatar Branch and AACE Qatar Section.

Most standard forms of construction contracts provide for liquidated damages in case of
delayed completion of the works. Including liquidated damages in construction contracts has
been explained by the intention to provide certainty and to save the expenses of proving loss.
What is the concept of liquidated damages and how do they apply in the region and,
particularly, in Qatar? Do they really provide certainty? Is there any role for experts when
liquidated damages clauses provide for an agreed amount payable when the contractual
completion date is overrun? What are the best practices in approaching these? Numerous
questions arising from this important topic will be discussed during this webinar with our
experienced speakers: a lawyer will touch upon the issues from a counsel and arbitrator
standpoints while an expert will give his insight from his practice. Construction practitioners,
contract managers, consultants, experts, lawyers and in-house counsel who participate at the
webinar will have the opportunity to put their questions and share their experience at the Q&A
session.
Speakers
Liquidated Damages in Construction Disputes
Myth and Reality of the Sought Predictability
Opening Remarks Moderator: Speaker Speaker Closing Remarks

Dr. Nasser AlAdba Saad Hegazy Ahmed Habib Eng. Abduljabbar Prof. Dr. Mohamed
Managing Partner Partner Attorney, International Saifaldeen Abdel Wahab
Omani & Partners LLP Resolve International Arbitration & Dispute Qatari Court Expert CIArb MENA Trustee
Doha, Qatar AACE Qatar Section President Resolution DWF LLP, Doha & Arbitrator and Mediator Head of International Arbitration,
CIArb Qatar Branch Chair CIArb Qatar Branch Vice Chair Paris offices Zulficar & Partners Law Firm
Moderator

Saad Hegazy
CIArb Qatar Vice-Chair
AACE Qatar President

Saad Hegazy is a Delay and Quantum Testified Expert Witness, Member of the Academy of Experts with over 20
appointments, Expert Determinator, Arbitrator and CEDR Accredited Mediator based between Doha and Dubai with more
than 17 years’ experience in Delay Analysis, Construction Contracts, Quantity Surveying, Claims, and Disputes Resolution in
various industries and project types in GCC, Middle East, Asia, and Africa.

Saad has a wealth of experience and knowledge having worked on airports, metros, infrastructures, industrials, oil & gas,
water treatment, utilities, luxuries and high-rise buildings projects. His expertise extends to arbitration, mediation and
litigation work. His education includes BSc in Civil Engineering, MSc in Strategic Project Management, LLM in Construction
Law and International Arbitration.

Saad is the President of AACE Qatar Branch, and Vice-Chair of CIArb Qatar Branch, previous ICC YAF MENA Regional
Representative. Saad is a Fellow of the Chartered Institute of Arbitrators (FCIArb), Expert Witness and Member of the Royal
Institution of Chartered Surveyors (MRICS), CEDR Accredited Mediator, and Arbitrator listed at QICCA, SCCA, CIArb, and
W&W rosters.
Guest Profile

Dr. Nasser AlAdba

CIArb Qatar Branch Chair

Dr. Nasser Al-Adba is an accomplished and highly recognized lawyer in Qatar and MENA region, having studied and practiced
law extensively throughout the world. He specializes in the drafting and review of major construction contracts and practices
the fields of International Investment Law and International Trade and Dispute Resolution, having been chosen for the World
Trade Organization roster of panelists in World Trade Organization (WTO).

He is renowned for his skills as a commercial negotiator; mediator and arbitrator in Arbitration & Alternative Dispute
Resolution (ADR) . He is full time assistant Professor teaching the areas of Public International Law, ADR and Investment
Arbitration at Qatar University (QU).

Recently, elected as the Chair of Chartered Institute of Arbitrators CIArb – Qatar and Qatar Financial Center (Branch).

Academics:
• Ph.D. in International Investment Arbitration from University of Manchester, UK • G.D.L. in International Negotiation. Mediation
and Dispute settlement from Harvard Law School, USA • L.L.M. from Graduate Institute of International and Development
Studies, Geneva, Switzerland • L.L.B. Qatar University, Qatar.
Speaker Profile

Ahmed Habib
Attorney-at-Law, DWF LLP

Ahmed Habib is an Attorney-at-Law, Member of Paris & Cairo Bars. He is an international arbitration and dispute resolution
specialist, practising at DWF LLP. His practice emphasises on Europe, the Middle East and Africa.

He acts as counsel and arbitrator and is on the list of arbitrators of the ICC French National Committee. He has handled
international arbitrations subject to a variety of applicable laws (civil and common law), covering several jurisdictions and
conducted under the auspices of various arbitration centres (notably the ICC, ICSID, CRCICA, DIAC, LCIA and PCA) as well as
ad hoc arbitration proceedings. His experience has covered a wide range of industries, including construction.

He is a member of the ICC Commission on Arbitration & ADR and was appointed as member of the committee entrusted with
the reform of the Egyptian arbitration law.
Liquidated Damages in Construction Disputes
Myth and Reality of the Sought Predictability

Ahmed Habib
Attorney-at-Law, DWF LLP

dwfgroup.com
My Presentation will touch upon the following
questions:

1. Definition of liquidated damages clauses in construction contracts

2. How common are they in practice?

3. What is the purpose/rationale behind liquidated damages clauses?

4. Liquidated damages in Comparative law

5. Focus on liquidated damages in Qatari law

6. Best practices and final remarks

1 DWF | Liquidated Damages in Construction Disputes

Liquidated Damages clauses in construction
contracts

Definition
• Clauses reflecting a fixed rate, agreed in advance, to compensate the
employer for the delay of the contractor, if any

• The clause often:

 Reflects a daily rate for every day of delay from the agreed completion date
until the actual completion date

 Mentions a cap for the payable compensation (legally serving as a limitation of

liability clause), commonly by a reference to a percentage of the contract’s
price, for example 10% of the price

2 DWF | Liquidated Damages in Construction Disputes

 How often would you find them in
practice?
• Liquidated damages clauses are very common in the construction industry

• Most standard forms of construction contracts provide for liquidated

damages payable upon late completion

• For example, Sub-clause 8.7 of the 1999 FIDIC Red Book provides in part as
follows:

“If the Contractor fails to comply with Sub-Clause 8.2 [Time for Completion], the Contractor shall subject to
Sub-Clause 2.5 [Employer’s Claims] pay delay damages to the Employer for this default. These delay
damages shall be the sum stated in the Appendix to Tender, which shall be paid for every day which shall
elapse between the relevant Time for Completion and the date stated in the Taking-Over Certificate. However,
the total amount due under this Sub-Clause shall not exceed the maximum amount of delay damages (if any)
stated in the Appendix to Tender."

3 DWF | Liquidated Damages in Construction Disputes

What is the rationale behind their
common inclusion in contracts?
• Certainty/predictability for both co-contractors from the very
beginning
• Saving time, effort and cost of proving loss whenever there is a delay
(from a legal technical point of view, the burden of proof is shifted)

 But do liquidated damages provisions really achieve these

purposes?

The answer depends on the legal regime applicable to these provisions in

every jurisdiction, for instance whether under the applicable law:
• They are considered valid or not; and
• Arbitrators and judges are bound by the agreed fixed rate or could
modify it

4 DWF | Liquidated Damages in Construction Disputes

Comparative law
 Common law

• Generally common law courts validates or invalidates the clause but, when validated, they do
not interfere with the agreed amount

• The criterion on which it would be considered enforceable or not is whether it is a pre-

estimate of loss or a penalty

• Under English law, courts are mandated to balance the provision against the legitimate
interest of the party seeking to enforce it or, alternatively, to consider whether there is a
commercial justification for the clause (UK Supreme Court in Cavendish Square Holdings BV v.
Tatal El Makdessi [2015] UKSC 67).

 Civil law

• Civil law jurisdictions empower the arbitrator and the judge:

- To enforce (or not) the liquidated damages clause in certain circumstances; but also

- To modify the agreed amount in other circumstances

5 DWF | Liquidated Damages in Construction Disputes

Comparative law
 Focus on Civil law jurisdictions in the region

We can distinguish two main schools:

(i) On the one hand, the position taken for instance by Qatar, Egypt and Bahrain
(ii) On the other hand, the position taken for instance by Jordan, Oman and the UAE

• Qatar, Egypt and Bahrain:

Under the law of these jurisdictions, in principle, a liquidated damages clause is valid and
enforceable. Yet, these laws empower the arbitrators and the courts: (i) not to enforce the
liquidated damages clause if there was no actual harm or; (ii) to decrease the amount of liquidated
damages if it was grossly/greatly exaggerated in comparison to the loss actually suffered

• Jordan, Oman and the UAE:

Whilst the laws of those jurisdictions also entitle contractual parties to agree on liquidated
damages amount in their contracts, they empower the arbitrators and the courts in all cases if
requested by one of the parties to entirely disregard the liquidated damages clause and assess the
damages as equal to the actual loss incurred by the employer

6 DWF | Liquidated Damages in Construction Disputes

Qatar law
The relevant provisions
Liquidated damages under Qatar law are governed by Articles 265, 266 and
267 of Law no. 22 of 2004 promulgating the Civil Code:
• Article 265 entitles the parties to agree on liquidated damages as follows:
“Where the subject of the obligation is not payment of money, the contracting parties
may calculate the amount of damages in advance in the contract or in any subsequent
agreement.”

• Article 266 allows their non-enforcement or the reduction of the amount:

“No agreed indemnity shall be payable if the obligor proves that the obligee has suffered
no damages. The court may decrease the agreed amount of indemnity if the obligor
proves that the calculation is exaggerated to a considerable degree or if the obligation has
been performed in part. Any agreement to the contrary shall be invalid.”

• Article 267 allows LD clauses to be used for limitation of liability, except in

cases of fraud or gross negligence:
“Where the damages exceed the agreed amount of indemnity, the obligee may not claim
a higher amount unless he proves the obligor's fraud or gross negligence.”

7 DWF | Liquidated Damages in Construction Disputes

Qatar law
In a nutshell
To sum up Qatar law pertaining to Liquidated Damages:
• When delay occurs, arbitral tribunals and judges enforce Liquidated
damages unless:
 The obligor (for instance, the employer/contractor) proves that
the obligee (for instance, the contractor/ sub-contractor) has
suffered no damages, in which case the liquidated damages will
be disregarded
 (i) The amount of Liquidated damages is grossly exaggerated; or
(ii) the obligation has been partially performed, in which cases
arbitral tribunals are entitled to decrease the agreed amount
 Whenever the real damage exceeds the amount of the Liquidated
damages and the obligee proves that the delay is a result of the
obligor’s gross negligence or fraud, in which case the obligee
may claim a higher amount reflecting its actual loss
8 DWF | Liquidated Damages in Construction Disputes
Qatar law
Application reflected in Case law
• Court of Cassation’s judgment dated 5 December 2006 (Challenge no.
70 for judicial year no. 2006), Civil and commercial circuit:
The judgment of the court of appeal challenged before the court of cassation
has not enforced the liquidated damages agreed upon in a subcontract because
it considered that the contractor suffered no damages since it delivered the
works in time to the employer despite the delay of the subcontractor.
The court of cassation endorsed the court of appeal’s judgment in this respect.
• Court of Cassation’s judgment dated 10 December 2013 (Challenge no.
210 for judicial year no. 2013), Civil and commercial circuit:
The court of cassation partially quashed the judgment of the court of appeal as
it considered that it has decreased the liquidated damages agreed upon in the
contract whilst there was delay and the contractor has not proved that: (i) the
employer has suffered no damages; (ii) the liquidated damages were grossly
exaggerated; or (iii) the contractor delivered some of the units that it was
constructing to the employer on the agreed time.
9 DWF | Liquidated Damages in Construction Disputes
Best practices and final remarks

• Include liquidated damages in your construction contracts

Even if they do not provide an “absolute certainty”, handled correctly they increase legal
(and business) predictability and allow a more efficient resolution of any dispute in this
respect.

• Think at the same time of the law governing the liquidated damages
clause pursuant to your contract and get a legal advice
This is a good practice to be done: (i) at the phase of drafting of the clause as well as;
(ii) the phase of its execution to check the law’s impact on the clause’s applicability.
Getting a legal advise from the competent persons is definitely the right business decision.

• Do not hesitate to involve a quantum expert

Involving an expert to assist in the determination of the amount of liquidated damages to
be agreed upon in the contract would ensure that this amount is reasonable (not
characterised as “penalty” under common law or as “grossly exaggerated” under civil
law) and thus enforceable as such. Involving an expert whenever there is a dispute about
the clause would allow to determine the best strategy regarding its applicability.

10 DWF | Liquidated Damages in Construction Disputes

 Contact us…

Ahmed Habib
Attorney-at-Law (Counsel and Arbitrator)
DWF LLP

E Ahmed.Habib@dwf.law

11 DWF | Liquidated Damages in Construction Disputes

Speaker Profile

Eng. Abduljabbar Saifaldeen

Qatari Court Expert, Arbitrator and Mediator

Abduljabbar has over 30 years of experience in the fields of oil & gas, construction, manufacturing and international
collaborative and JV agreements, in Qatar and internationally. He is a member of the Chartered Institute of Arbitrators (CIArb)
and registered arbitrator at LCIA and QICCA. He is a certified mediator by the National Association of Certified Mediators
(NACM), International Mediation Institute (IMI) and CIArb. He is a subject matter expert registered with Qatar courts and
Ministry of Justice and a certified FIDIC contracts claim determiner. Abduljabbar holds a master’s in professional civil
engineering from the University of Northern Arizona, BSc in oil and gas from the University of Southern California, LLM in oil &
gas law from the University of Aberdeen, LLM in International business law from the University of Cumbria, and currently doing
an LLM in construction law at RGU in Aberdeen. He is a member of the American Society of Civil Engineers, Society of
Petroleum Engineers, and Society of Construction Law. He has handled over 300 civil and commercial disputes in construction
and Oil & Gas sectors, with claims of up to QAR 3 billion.
Liquidated Damages in Construction
Disputes:
Myth and Reality of the Sought
Predictability
(An expert’s perspective with a Qatar focus)

Abduljabbar Saifaldeen

MCIArb, LLM-Oil & Gas, LLM –IBL, LLM-Const., MEng (Civil), BSc - PetEng
Arbitrator, mediator, expert adjudicator

October 26, 2022

My presentation will cover the following topics:

1. Brief introduction to various construction delay risk damages

2. The LD/EOT Dilemma
3. Common issues encountered in LD/EOT Assessment
4. Qatar Construction Dispute Adjudication Landscape
5. Case Law on LD in Qatar - The Court of Cassation
6. Suggestions to Enhance the Enforcement Predictability of LD
 1. Risks of Delay Damages and Remedies in Contract
Qatar Civil Law No. 22 of 2004 - Compensatory Performance Articles 256 – 268

1. Delay Liquidated Damages (DLD)

• agreed and pre-estimate of loss remedy before the breach of contract
• in Qatar LD has a cap of 10% of the contract value (Article 80 of By-law no.
16/2019 of the Public Tendering and Purchase Law No. 24/15)
2. Liquidated and Ascertained Damages (LADs)
• Essentially the same as LD but with an emphasis on a pre-ascertained amount
of daily/weekly applicable LD
• Remedy for owner, but what if the actual delay losses are greater than LD –
what other remedies available for the owner?
3. Performance Liquidated Damages (PLD)
• Applicable to plant process output performance
• May involve multi-stage performance tests until performance certificate
• PLD maybe triggered after DLD cap out
 1. Risks of Delay Damages and Remedies in Contract

4. Unliquidated damages
• determined post-breach of contract (not pre-specified in the contract)
• remedies for the contractor – Prolongation/disruption cost, compensable termination,
price escalation, change of circumstances

5. Payment delay LD
• normally interest and financial charges (i.e., Clause 14.8 FIDIC Redbook)
• not common in Qatar construction contracts
• remedy for the contractor, but what if no interest/financial - what other remedies are
available for the contractor?

6. Consequential damages
• loss of use damages and lost profits, consultant fees, (direct and indirect)
• could be potentially an enormous risk, for both the owner and contractor
• normally the practice is to include a limitation or waiver clause, except for fraud or gross
negligence
 2. The LD/EOT Dilemma

1. It doesn’t take long in construction contracts for the contractor to

face an LD claim, if you realize that 0.5% of CV/Day is only 20 days of
delay to reach the 10% cap, and for 0.2% is 50 days

2. 10% loss of contract value is a huge hit for the contractor, it may
wipe out his margin or render the project a loss

3. The contractor will normally resort to EOT claim (often with an eye
on prolongation cost recovery and the practice of “get the time first
and the money will follow”)

4. The employer will try to avoid EOT and prolongation cost

 2. The LD/EOT Dilemma

5. Balancing the role of the “Engineer” consultant (the certifier)

is a delicate undertaking. He/she is paid by the employer to
safeguard his interest,

but at the same time owes a duty of care, for professional

honesty and fairness, towards both the employer and
contractor.

Can or must always the Engineer objectively maintain

neutrality and impartiality?
 3. Common issues encountered in LD/EOT Assessment

1. Employer/Engineer reluctant to issue a substantial completion (or final)

certificate to the contractor

2. Payments delay and delay in releasing the retention money by the

employer

3. Unless a remedy is expressly stated otherwise in the contract, normally the

payment delay time, if determined, can be considered an EOT, with
compensation, if applicable.

4. In majority cases of the completion delay disputes, there are elements of

concurrent events, from the employer and contractor, causing the delay.
 3. Common issues encountered in LD/EOT Assessment

5. Contentious and conflicting work schedules and programs, and at times

clearly manipulated

6. None Compliance with contractual conditions precedent and time bar for
claim application and evaluation, if applicable

7. Objectivity and professional neutrality of the “Engineer” certifier

8. Ambiguous and uncertain LD clause

9. lack of clear EOT clause in the contract

10. Missing project progress meeting records and slow in production of

relevant documents (consultants' evaluation, design and as built drawings)
and correspondence
 4. Qatar Construction Dispute Adjudication Landscape

1. No statutory adjudication method for quick resolution for

project ongoing construction disputes

2. Project’s Dispute Adjudication Board is also not a

common practice

3. Adjudication, will be either via litigation or arbitration route

4. Bundled interrelated dispute claims (in one single

application) will typically get to court or arbitration

5. The courts usually appoint an MOJ registered subject expert

to assess claims and determine damages/remedies
 4. Qatar Construction Dispute Adjudication Landscape

6. The court expert determination is not binding, it requires the final court
approval

7. The court is not obliged to go with the expert determination but in

majority of cases the expert report is endorsed by the court

8. The newly established Court of Investment and Trade is not compelled to

appoint only MOJ registered experts. The Court is also expected to activate
mediation, as an ADR, in the near future

9. When the arbitrator is not an engineer, he will need to rely on expert

witnesses (mostly appointed by the parties, but the arbitrator/tribunal
can also appoint a neutral expert)
 4. Qatar Construction Dispute Adjudication Landscape
Typical bundled claims in a construction dispute for adjudication may include:

1. completion delay, who was at fault and damage/quantum

2. defects and related damages

3. payments delays and quantum

4. contract breach - whose fault?

5. contract termination, determine the contractual grounds for termination

6. performance bank or personal check guarantees issues

7. other damages suffered by any party

8. reconcile the final claims and remedies quantum between the parties
 5. Case Law Authorities on LD disputes in Qatar
The Court of Cassation cases : 70/2006, 92/2007, 18/2009*, 210/2013 and 107/2014

1. Qatar courts honor parties’ agreements and intentions to include a pre-

estimated LD in their contract - “Pacta Sunt Servana – ‫"العقد رشيعة المتعاقدين‬

2. Contract genuine LD will be applied. However, the court may waive or

reduce the amount of LD if contractor can prove:
a. Owner did not suffer damages
b. He partially completed the work
c. Owner himself caused the delay
d. The LD was exaggerated
3. Courts may award higher damages if owner can prove contractor’s fraud and
gross negligence caused him excessive loss not covered by the pre-estimated
contact LD
* Interesting authority on LD after contract termination
CAS 18/2009

In this case case, the Court of Cas upheld the Appeal Court’s decision that when the
construction contract was terminated earlier by the Court on owner’s request, previous
agreed LD provision will no longer be applicable and nullified, and owner will not succeed in
seeking contractual LD damages against the contractor, even if the LD was established prior
to contract termination. (narrated from the original Arabic decision - unofficial translation)

Note:

This is an interesting decision from the Court of Cassation and one that may need a deeper prognosis,
based on more recent Qatar case law authorities, if available. The same issue came recently to UK’s
Supreme Court decision in Triple Point Technology v PTT [2021] UKSC 20, (reversing a Court of Appeal
ruling) that asserted the contractor, although the contract was terminated, remained liable for LD for
incomplete or unapproved work
 6. Suggestions to Enhance the Enforcement Predictability of LD

1. LD clauses must be conspicuous and ascertained pre-determined liability of the

contractor

2. Separating DLD from PLD in clearly drafted and understood clauses

3. Treatment of LD in the event of contract termination

4. LD needs to be treated as a reasonable compensation for the owner, and not applied as
to penalize the contractor

5. A Balanced and events-triggered EOT clause should go hand-in-hand with the LD clause

6. Clearly and unambiguous clauses on availability (or lack) of additional remedies for
genuine damages beyond the LD period and in the event of contract termination

7. Remedy clauses for delayed contractor payments – EOT could be one option
 Thank you for your attention

Abduljabbar Saifaldeen
• MCIArb arbitrator
• Expert adjudicator– Oil & Gas, Construction, Manufacturing,
Furniture and Fitout, JVA,JOA
• Certified Mediator (CIArb, IMI, NACM, PDSL)
• Certified FIDIC Claim Assessor
• LLM (oil & gas), LLM (IBL), MEng (Civil), BSc (PetEng), LLM
(Const. – ongoing)

Mobile call/Whatsspp: +97455544528

Email: ajsaifaldeen@gmail.com
Special Guest Profile
Prof. Dr. Mohamed Abdel Wahab
CIArb MENA Trustee
Head of International Arbitration,Zulficar & Partners Law Firm

Prof. Dr. Mohamed Abdel Wahab is a Professor of International Arbitration, Private International Law and English Contract Law at
Cairo University; Founding Partner and Head of International Arbitration, Construction and Energy Groups at Zulficar & Partners Law
Firm (Egypt); ICCA Treasurer & Member of the Governing Board; Dean of the Africa Arbitration Academy; Chair of the International
Expert Committee of the Permanent Forum for China Construction Law; Vice-Chair of the ICC Governing Body for Dispute Resolution
Services; Co- Chair, IBA Arab Regional Forum; Vice-Chair of the Advisory Committee of the CRCICA; Member of the CIMAC Court of
Arbitration; Member of the Advisory Board of the MIAC; Member of the LACIAC Court of Arbitration; Member of the ITA Academic
Council; Member of the Advisory Board, Indonesian Arbitration Centre; and Member of the Court, PCA.

He served as ‘Arbitrator’, ‘Legal Expert’ and ‘Counsel’ in more than 245 cases, involving parties from the Africa, Asia, Canada, Europe,
the Middle East and the United States. He featured in cases under the auspices of the AAA, BCDR (Bahrain), ADCCAC (UAE), CRCICA
(Egypt), DIAC (UAE), DIFC-LCIA (UAE), ICC (France), ICSID (USA), KIAC (Rwanda), LCIA (UK), LMAA (UK), QICCA (Qatar), RCICAL
(Nigeria), SCC (Sweden), SIAC (Singapore), TIAC (Uzbekistan), as well as ad hoc UNCITRAL proceedings, involving mega multi-
hundred million dollars disputes involving private parties, investors, States and State-owned entities. He received the LAW Magazine
2017 Best Legal Practitioner Award, the 2018 ASA International Arbitration Advocacy Prize, the 2019 AYA Hall-of-Fame African
Arbitrator Award, the 2020 and 2021 Client Choice International Award. He is listed in Who’s Who Global Elite Thought Leaders:
International Arbitration (2021 and 2022); selected among the Legal500 Africa Powerlist (2021) and the AYA’s Africa's Top 30 Powerlist
(2021). He is the coeditor (with Prof Maxi Scherer and Ms. Niuscha Bassiri) of “International Arbitration and the COVID-19 Revolution”
(2020); coeditor (with Prof Ethan Katsh and Mr. Daniel Rainey) of “Online Dispute Resolution: Theory and Practice” (2021); and is the
author of the Abdel Wahab Pandemic Pathway to Virtual/Remote Hearings.
Thanks