Concurrent Delay in UAE Construction Projects

Concurrent delay sits in a gap UAE law was not designed to fill

The UAE Civil Code does not define concurrent delay and FIDIC standard forms do not resolve it. The framework that applies in any UAE construction dispute is built from three civil code provisions, two competing common law doctrines that arrive through the SCL Protocol and FIDIC drafting practice, and the residual discretion of the tribunal.

• True concurrent delay arises only when two independent critical-path delays, one each side, would each on their own delay completion.
• UAE tribunals lean toward apportionment under Articles 290 and 291 of the Civil Code, closer to City Inn than to the English Malmaison rule.
• A contractor with a valid EOT claim can still face full liquidated damages if the 28-day FIDIC notice was missed, regardless of who caused the delay.
• Article 390(2) of the Civil Code allows a tribunal to reduce liquidated damages to actual loss, but the burden of proof sits on the contractor.

Who needs to read this

Three reader situations turn on the concurrent delay question more than any other.

The contractor served with an LD deduction notice for a delay period in which the employer caused at least part of the loss. The deduction has already hit the next interim payment certificate or has been called against the performance bond. The contractor needs to know whether the EOT claim survives, and how much of the LD figure can be reduced.

The developer or employer reviewing an EOT determination from the engineer that grants more time than the developer's records support. A challenge under Article 390 or under the FIDIC dispute resolution clause may not just resist the EOT but unlock a separate LD recovery for the residual contractor-caused period.

The subcontractor sandwiched between a main contractor's delay claim against the employer and the main contractor's own LD deduction passed down the chain. The legal analysis is the same. The commercial position is harder because the subcontractor rarely controls the upstream programme.

This article assumes a FIDIC-form contract governed by onshore UAE law. The DIFC and ADGM positions differ, particularly on the availability of injunctive relief and the treatment of penalty clauses. The general principles below transfer to bespoke contracts but each bespoke amendment to the standard EOT and LD machinery requires its own review.

What counts as concurrent delay

Three conditions need to be satisfied before any of the legal rules engage. Without all three, the situation is not concurrent delay and the tribunal will analyse it as either sequential delay or as a single critical event with an excused or unexcused cause.

The two delays must be independent. Each must arise from a separate event with a separate cause. Late drawings from the engineer running into late material delivery from the contractor's procurement chain is concurrent delay. Late drawings causing the contractor to pace its procurement chain is not.

The two delays must be critical-path. Each must lie on the project's longest path to completion. A contractor labour shortage that runs alongside an employer-caused redesign on a non-critical activity is sequential, not concurrent, and the contractor remains liable for any critical delay.

The two delays must be causatively independent. Each must, on its own, be capable of delaying completion by the relevant period. If the employer-caused delay fully absorbs the contractor-caused delay because the employer's event would have prevented work in any event, the contractor's delay is non-causative and the analysis collapses into a single-cause case.

The Society of Construction Law Delay and Disruption Protocol (2nd edition, 2017) describes this as the "true concurrency" test. UAE tribunals routinely reference the SCL Protocol where the contract is silent, both because FIDIC 2017 Sub-Clause 8.5 specifically points to it and because no UAE statutory rule fills the gap.

The Malmaison and City Inn approaches and where UAE practice lands

English and Scottish law diverge on what happens once true concurrency is established. UAE tribunals draw on both lines but anchor the result in the Civil Code, which produces an outcome closer to the Scottish position than the English one.

The three Civil Code provisions that drive UAE apportionment

Article 290 allows the tribunal to reduce compensation where the injured party contributed to the harm. In a concurrent delay case, this means the employer's contribution to the delay reduces the LD recovery proportionately, even if the contract sets a fixed daily rate.

Article 291 provides that where multiple parties are responsible for damage, each is liable in proportion to their responsibility. This is the textual hook for the apportionment approach. UAE tribunals routinely apply Article 291 to split EOT and LD entitlements between contractor-caused and employer-caused periods within a window of concurrent delay.

Article 106 prohibits the unlawful exercise of a right. An employer who caused or contributed to delay and then deducts the full LD figure for the same period is exercising the contractual LD right in a way that conflicts with the substantive cause of the delay. UAE tribunals have used Article 106 to disallow LD deductions for periods where the employer was the dominant cause.

Article 246 imposes good faith on contractual performance. It frames the analysis under the other provisions but rarely produces an independent result.

The Article 390(2) reduction route

Where the contract sets a daily LD rate, Article 390 of the Civil Code controls enforceability. Two features matter for concurrent delay specifically.

First, Article 390(2) allows the tribunal to vary the agreed compensation to match actual loss on application by either party. The provision cannot be excluded by contract. Any clause in the FIDIC Particular Conditions that purports to make the LD rate "binding and final" is overridden by Article 390(2) for contracts governed by onshore UAE law.

Second, the burden of proving that the agreed rate exceeds actual loss sits on the contractor. The Dubai Court of Cassation has held repeatedly that the LD figure stands unless the contractor produces evidence that the employer suffered a smaller loss. The standard evidential package includes the employer's own loss schedule, financial models from the project, comparable evidence of market conditions, and where available, the actual letting or sale revenues for the affected units.

In a concurrent delay case, the Article 390(2) argument runs in parallel with the apportionment argument under Articles 290 and 291. The contractor is asking the tribunal to do two things at once: reduce the period over which LDs apply (apportionment) and reduce the daily rate at which LDs accrue (Article 390(2)). The two reductions are cumulative.

The notice trap that destroys most concurrent delay claims

The technical legal position above assumes the contractor has preserved its EOT claim. In practice, most concurrent delay disputes turn on a procedural point that comes long before the apportionment analysis: did the contractor issue the 28-day notice required under FIDIC Sub-Clause 20.1?

The DIFC Court of Appeal addressed this directly in Panther Real Estate v Modern Executive Systems. The contractor was responsible for only 19 of 325 days of delay. The employer caused the rest. The court still upheld the full LD deduction because the contractor had not issued timely notices. The notice requirement operated as a condition precedent. Without compliant notice, the EOT claim never crystallised and the apportionment analysis never began.

For full treatment of the notice point and the implications across FIDIC contracts in the UAE, see the parent article on delay claims under UAE construction law. The summary for concurrent delay purposes is brief: the legal framework above protects only the contractor that documented its claim contemporaneously and issued every required notice within 28 days.

How UAE tribunals run a concurrent delay analysis

A tribunal asked to decide a concurrent delay claim under onshore UAE law typically works through five stages. Each stage is evidence-led, and the contractor that arrives with thin contemporaneous records loses ground at every stage.

Stage 1: establish the as-planned and as-built programmes

The tribunal compares the baseline programme accepted by the engineer at contract award against the actual progress recorded on site. Without a credible baseline, the as-built record cannot be measured against anything and the entire analysis collapses. UAE tribunals routinely accept programmes prepared in Primavera P6 or similar tools where the underlying logic is sound and the updates are contemporaneous.

Stage 2: identify each critical-path delay event

Each delay event needs to be characterised by date, cause, party responsible and effect on the critical path. Generic categories ("late drawings," "labour shortage") are not enough. The tribunal needs document trails — instructions, RFIs, site memos, correspondence — that anchor each event to a date and a cause.

Stage 3: test for true concurrency

Apply the three-condition test described above. Independent. Critical-path. Causatively independent. Events that fail any condition are removed from the concurrent delay analysis and treated as sequential delay or single-cause delay.

Stage 4: apportion under the Civil Code

Where true concurrency is established, the tribunal applies Articles 290 and 291 to assess relative culpability. The split is rarely 50/50. A typical result might be 70 per cent employer responsibility for site access delays running alongside 30 per cent contractor responsibility for slow MEP procurement, with the EOT and LD periods adjusted accordingly.

Stage 5: apply Article 390(2) to the residual LD figure

The contractor-attributable LD period, having been reduced under apportionment, is then tested against actual employer loss. Where the contractor can prove the employer suffered no loss or a smaller loss than the contractual rate, the tribunal reduces the LD figure further. Where the employer can prove its actual loss exceeds the contractual cap, the tribunal can also lift the cap, although this is far less common in practice.

The cumulative effect is that an LD deduction of, for example, AED 10 million on the original notice can reduce to AED 2 to 3 million by the end of the analysis, even where the contractor accepts some responsibility for the underlying delay.

Drafting around concurrent delay before it bites

The cheapest concurrent delay dispute is the one prevented at contract stage. FIDIC 2017 Sub-Clause 8.5 explicitly invites the parties to specify in the Particular Conditions how concurrent delay will be assessed. Most parties leave the clause silent, which forces the tribunal back to the SCL Protocol and the Civil Code. A party that wants certainty drafts the rule.

Three drafting options work well in UAE-governed contracts:

A Malmaison-style clause giving the contractor full EOT but no prolongation costs for any concurrent delay period. This favours the contractor on time and the employer on money. It is the simplest rule to administer.

An apportionment clause stating that EOT and prolongation costs will both be apportioned according to relative culpability, with the engineer making the initial assessment and the dispute resolution clause governing challenges. This tracks the Civil Code position and reduces the gap between the contractual rule and the rule a UAE tribunal would apply by default.

A time-bar clause strengthening Sub-Clause 20.1 to make notice an express condition precedent and tying it to a specific contractual remedy for non-compliance. This does not address concurrency directly, but it accelerates the resolution of EOT claims and reduces the volume of disputed material the tribunal has to work through.

For high-value projects, the parties should also agree the methodology for delay analysis (windows analysis, time impact analysis, as-planned-versus-as-built) and specify how float is owned. FIDIC 2017 treats float as belonging to the contractor by default. A bespoke amendment to allocate float to the employer or to share it changes the substantive outcome of every concurrent delay claim.

What records actually win these cases

Five categories of contemporaneous records carry most of the evidential weight in a UAE concurrent delay arbitration:

The contractor's monthly progress reports, signed and submitted to the engineer, with critical-path commentary that flags delay events as they arise. A run of 12 monthly reports covering the disputed period is more persuasive than a 200-page expert report prepared after the dispute crystallises.

The engineer's instructions, variations and site memos, dated and recorded in the project register. These anchor employer-caused events to specific dates and causes.

The contractor's own internal records of labour deployment, plant utilisation and procurement deliveries. These are the evidence the contractor produces to apportion responsibility for the contractor-caused part of any concurrent period.

The 28-day notices issued under FIDIC Sub-Clause 20.1, with proof of delivery to the engineer. The notice register is the single most important document the contractor will produce in any dispute. Without it, the substantive analysis above does not run.

The financial records the contractor needs for the Article 390(2) argument. These include the employer's actual sales and letting performance during the delay period, where available, and the project finance schedule that quantifies the employer's actual cost of delay.

A contractor that can produce all five categories at the start of the dispute is in a strong position even where its own delay was material. A contractor that cannot is usually settling early at significantly reduced figures.

How should UAE contractors and employers approach concurrent delay claims in 2026?

The UAE legal framework gives both parties tools that work, but neither side gets to use them without the underlying record. The contractor that documents events in real time, issues every 28-day notice, and engages a delay analyst before the dispute escalates preserves its position under Articles 290, 291 and 390(2). The contractor that arrives at arbitration with reconstructed schedules and missing notices is asking the tribunal to apportion delay on faith.

For employers, the position is the inverse. The clean LD deduction depends on a clean engineer's record showing the contractor caused the critical delay, no missed determinations on EOT applications, and a defensible position on actual loss. An employer that issues an LD deduction without these supporting documents finds the deduction reduced or set aside under Article 390(2), often by margins of 60 to 80 per cent.

For UAE contractors, developers and project owners managing live exposure on EOT claims or LD deductions, our construction lawyers in Dubai advise on apportionment strategy, prepare and defend claims in arbitration, and coordinate with delay analysts and quantum experts to anchor the legal position to the underlying record. For projects still in delivery, the same support also covers contemporaneous notice management and contract drafting. For closed projects, our liquidated damages guide and the parent article on delay claims cover the surrounding framework.

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