Engineering and construction in Middle East and Africa

In summary

This article provides an overview of important developments in engineering and construction in the Middle East and Africa. It analyses the main trends in the construction market in the region, and focuses on recent cases and awards in construction-related investment arbitration and commercial awards to assess the main causes of disputes. The article ends by addressing some of the particularities of engineering and construction arbitration in the region, including the common law and civil law influences on the practice of arbitration.

Discussion points

• Saudi Arabia as new centre of attention in engineering and construction
• Increasing investments in Africa by Gulf countries, China’s decreasing financial support, and the European Union’s ‘Global Gateway’
• Strengthening presence of Turkish contractors in Africa
• Construction-related investment treaty arbitration as key tool for contractors
• Differences in construction law and arbitration practice between common law and civil law legal cultures

Referenced in this article

• Saudi Arabia Civil Transactions Law
• SCCA Arbitration Rules 2023
• Güriş İnşaat v Saudi Arabia
• Piccini v Cameroon
• Eurofinsa v Gabon
• Panther v MESC
• Rwanda Energy Group v KivuWatt

Introduction

The article provides an overview of key topics, recent trends and important market developments in engineering and construction-related arbitrations in the Middle East and Africa region. The vast area and the various legal systems encompassed by this region mean it would be impossible to cover all relevant developments in this article; therefore, this article will only cover topics, trends and developments over the past two years that are representative of general trends and will be of the most interest to the reader.

Green energy projects are important to the environmental sustainability of the numerous mega-projects mentioned in this article and are essential in the fight against climate change. However, given that energy-related arbitrations are covered by another article of this publication, this article will only peripherally refer to the energy-related infrastructure projects burgeoning in the region.

Saudi Arabia: the new centre of attention

In the Middle East, the Gulf Cooperation Council (GCC) countries have significantly contributed to the surge in infrastructure and construction projects in the past 30 years. Fuelled by oil revenues and sovereign wealth funds, iconic cities such as Dubai, Abu Dhabi and Doha have experienced remarkable growth and expansion.

Very large projects in the Gulf have made, and continue to make, headline news. Among other projects, after the intensive preparations for the 2022 FIFA World Cup in Qatar, the past year has seen the opening of the new Midfield Terminal Building at the Zayed International Airport (formerly the Abu Dhabi International Airport). This new terminal stands as one of the largest in the world, with a reported capacity of up to 45 million passengers per year.^[1]

Over the past few years, the attention of engineering and construction specialists has been diverted almost entirely to Saudi Arabia and the grand ambitions for development exposed in its ‘Vision 2030’ programme, which was first announced in 2016. Saudi Vision 2030 rests on three main pillars: making Saudi Arabia the ‘heart of the Arab and Islamic worlds’, becoming a global investment powerhouse and leveraging the country’s unique and strategic location to become a hub connecting Asia, Europe and Africa.^[2]

Under Vision 2030 and the dynamism it has brought to the country, Saudi Arabia has embarked on an array of megaprojects, the list of which would be too long for this article. To name but a few, the new King Salman International Airport stands out with its budget of US$50 billion and its aim of competing with the neighbouring rival airports of Doha, Dubai and Abu Dhabi. The emblematic NEOM project aims to build, among other things, a new and unique urban area spanning 170km from the Red Sea to the mountains in the northeast of the Kingdom (the LINE). NEOM is also set to host the Trojena project – a tourist mountain resort equipped with ski facilities slated to host the 2029 Asian Winter Games – two new islands and other tourism mega complexes.

The shift in the centre of attention towards Saudi Arabia is not only attributable to the proliferation of large-scale projects in Saudi Arabia, but also to the many legal reforms undertaken in the country. In particular, in June 2023, Saudi Arabia enacted its new Civil Transactions Law, which entered into force retroactively on 16 December 2023 and aims to provide greater legal certainty and predictability to the country’s contract law.

The prior state of Saudi law created certain complexities and risks in construction disputes, notably because of the prevalence of uncodified Islamic law and sharia principles. The Civil Transactions Law marks an important milestone in the country’s plan to modernise its legal system and attract foreign investors: it is derived from and compliant with sharia but is based on international best practices and standards.

The Civil Transactions Law is expected bring more certainty for contracting parties by regulating the formation, interpretation and performance of contracts in a manner similar to the Arab civil codes predominant in the region. In particular, articles 461 to 478 concern contracts ‘for works’ – the category under which engineering and construction contracts fall.

Arbitration in Saudi Arabia has also been modernised. On the legislative side, the Arbitration Law 2012 was supplemented by executive regulations in 2017^[3] to provide a definitive framework to arbitration. The real novelty, however, are the Arbitration Rules 2023 of the Saudi Centre for Commercial Arbitration (SCCA), the country’s arbitration centre established in 2014, which aim to enhance the SCCA’s attractiveness and promote arbitration.

Among other things, the SCCA Arbitration Rules establish a new SCCA court that replaced the SCCA committee for administrative decisions. The court comprises 15 world-renowned practitioners from 12 countries who will be responsible for key administrative decisions relating to SCCA-administered arbitrations.^[4]

Regarding the substance, the Arbitration Rules now provide arbitral tribunals with wider discretionary powers, in line with best practices in international arbitration, and allow the use of technology, notably to file documents electronically and to hold hearings by teleconferencing.

Finally, Saudi Arabia has recently implemented new regulations permitting foreign firms to set up a direct presence in the country, abandoning the earlier requirement of a partnership with existing local firms.^[5]

Africa: the GCC countries as new investors

Although the African continent does not benefit from the significant oil revenues and sovereign wealth funds enjoyed by its Gulf neighbours, it still has its fair share of construction projects. According to Statista,^[6] in 2020 Africa counted 385 construction projects that had a value exceeding US$50 million, with Egypt, South Africa, Ghana, Nigeria and Kenya^[7] by far representing the largest share of those projects. These statistics are a testament to the vivacity of English-speaking countries (with the exception of Egypt, which is starting to encounter certain difficulties) in the construction sector on the African continent. The trend was confirmed the following year, for which the African continent counted 462 construction projects with a total value of US$521 billion.^[8]

Among the very large construction projects in Africa, a number of megacities are under construction, the most iconic of which is the New Administrative Capital of Cairo in Egypt. These futuristic cities are also being developed in Kenya (the Konza Technopolis), as well as in Nigeria, Ghana and South Africa.

Important changes are under way regarding foreign investment in construction-related projects in Africa. While China and Chinese companies had recently played a key role as major providers of funds for investments in Sub-Saharan Africa – and as recurring users of international arbitration – the past few years have been marked by a sharp retrenchment of Chinese investments in the African continent. In 2021, China announced its intention to cut back its financial support in Africa from US$60 billion to US$40 billion over three years.^[9]

This decline in Chinese investments has opened the door to new opportunities for other countries – opportunities that the GCC countries have started to seize, in line with their ambition to capitalise on their strategic location between Africa, Europe and Asia.

The new Kigali International Airport currently under construction in Rwanda is a significant example of this new wave of investments from the Gulf, as this US$2 billion project is primarily piloted and funded by a partnership between the Rwandan government and Qatar Airways, which is fully owned by the Qatari government.^[10] The construction of this project will prove to be a challenge for a country with a population of just 13.5 million people, especially since it is taking place at the same time as other ambitious projects in the country.

Another prime example of the GCC’s investments in Africa can be seen a little further northwest of Kigali, where, as part of an agreement between the Central African Republic and the BRICS countries^[11] for the construction of a new international airport, the United Arab Emirates (UAE) undertook to provide US$200 million in funding, with the support of the African Development Bank.^[12]

Among the other important projects in Sub-Saharan Africa, the Lobito Atlantic Railway stands out both for what it says about foreign investments in Africa and for its size. The Lobito Atlantic Railway is a large infrastructure project destined to connect the Lobito port of Angola to the Democratic Republic of the Congo (DRC) and, ultimately, to Dar es Salaam in Tanzania. It has been reported that a joint venture of Trafigura, Mota-Engil and Vecturis will invest over US$450 million in the railway and associated infrastructure and provide 35 locomotives and more than 1,500 waggons, while around US$100 million will be invested in the DRC to improve the railway line and rolling stock.^[13]

In contrast to the other projects highlighted in this section, the Lobito Atlantic Railway is partially funded by the European Union as part of its ‘Global Gateway’ investment programme,^[14] as it is considered strategic to the European Union’s own supply of raw materials for the green energy transition.^[15] These types of investments by the European Union (and the United States) are part of a two-pronged strategy to, first, respond to China’s large investment in the region and, second, to address Africa’s infrastructure needs by expanding rail links between the port of Lobito in Angola and the rich mines of northern Zambia and southern DRC.^[16]

Turkish contractors as key actors in Middle East and Africa

Another key trend of the past few years in the Middle East and Africa is the increasing presence of Turkish contractors on construction projects in the region. It was reported that in 2023, Turkish companies completed over 1,800 projects in Africa, with a total value of over US$85 billion, and that Turkish investments in Africa reached US$10 billion.^[17]

This trend can also be observed in the arbitration sphere, where the frequency of construction arbitration-related news involving Turkish contractors has increased. For example, it was recently reported that Turkish companies brought construction-related investment arbitrations against Yemen over a road project,^[18] and there has also been at least one recently reported arbitration against Libya.^[19] Treaty claims were also submitted by Turkish contractors against Saudi Arabia, including one reportedly related to microtunnelling for the sewage system of Jeddah.^[20]

Construction projects: arbitration with state entities

The construction sector has for some time been a keen user of the protection offered by investment treaties. Statistics released by the International Centre for Settlement of Investment Disputes (ICSID) in 2023 show that the construction sector has represented 10 per cent of all cases registered by ICSID since its inception in 1966 – just below the related oil, gas and mining sector and the electric power and other energy sector.^[21]

Reliance on investment treaty protection in construction cases is, however, not always straightforward. One of the first hurdles faced by construction companies in relation to investment treaty protection lies in the requirement to qualify as an investor under the relevant treaty. For example, while a company established in the country of the project may qualify as an investor, the same might not always be true for an unincorporated joint venture.

Similarly, the project itself should qualify as an investment under the relevant treaty. In relation to construction projects, the question has arisen whether a construction contract can be considered an investment: some have argued that contractors only provide materials and services in exchange for a fixed payment, including profit, without any ongoing commitment to the state after the construction phase and that, for that reason, construction activities do not qualify as an investment. Since the cases of Salini and Jan de Nul v Egypt,^[22] however, it is now relatively well accepted that a construction project that involves substantial financial contributions, expertise and manpower over a significant period may qualify as an investment.

ICSID and the Permanent Court of Arbitration have publicly reported 46 pending investment treaty arbitrations linked to construction projects against Middle East and African states over the past two years. The countries most often named as respondents were Egypt (seven),^[23] Senegal (three), Saudi Arabia (three), Nigeria (three) and Turkey (three). Other respondents included Algeria, Burkina Faso, Morocco, Libya, Iraq and South Sudan.

GAR also reported a claim against Cameroon by an Italian contractor over a terminated contract to build the 60,000-seater Olembe Stadium in Cameroon’s capital, Yaoundé, as the country prepared to host the Africa Cup of Nations football tournament.^[24] Another (unsuccessful) case brought by an Italian contractor was reported against Kuwait in relation to public works for the upgrade of Jamal Abdul Nasser Street, a 26km road in Kuwait City.^[25]

The number of investment treaty cases is not entirely surprising since African countries have concluded several bilateral investment treaties (BITs) with countries outside the continent, as well as intra-African BITs. Interestingly, however, most of the roughly 180 intra-African BITs that have been signed are not yet in force – only 48 of them are. Middle Eastern and African countries also have multilateral investment treaties, among them the Agreement on Promotion, Protection and Guarantee of Investments among Member States of the Organization of the Islamic Conference 1981, which provides for investor-state arbitration.

Treaty-based arbitration is not, however, the only means of recourse against states in a region where states or public entities are often contracting parties to construction contracts. In the past year, non-treaty-based construction arbitrations have been reported against several Middle Eastern and African states. For example, Spanish contractors brought International Chamber of Commerce (ICC) arbitrations against Gabon, over a football stadium,^[26] and Algeria, over a railway project.^[27] A French construction company also brought an ICC arbitration against Bahrain in relation to a US$500 million project to build Bahrain’s first waste-to-energy recycling plant.^[28]

Iraq has become a respondent in arbitration proceedings, and two cases have been reported against Iraqi public entities, namely against the Central Bank of Iraq by an Emirati construction group for the non-payment of construction services,^[29] and against an Iraqi state ports company by a Greek contractor over a sea wall, the construction of which was allegedly delayed by an offensive of the Islamic State of Iraq and Syria.^[30]

These cases are instructive of the types of difficulties that contractors often face and complain about. Unexpected termination of a contract is one of the most prevalent issues raised in construction arbitrations in the region, often accompanied by allegations that the termination was politically motivated to favour another contractor. Other common allegations in construction arbitrations include delays and disruptions, refusals to award extensions of time (EOT) and prolongation costs, especially in respect of politically sensitive budgets and projects, and abusive behaviour in respect of bank guarantees. Another type of complaint that has surfaced on several occasions in the past few years is the failure by national courts to act fairly and impartially in the review of contractors’ claims.

Arbitrating construction disputes in Middle East and Africa

One of the most peculiar features of construction arbitration in the Middle East is the hybrid legal system of civil and common law that prevails in practice and, sometimes, in legal texts. In several countries of the GCC, such as Qatar and the UAE, traditional court systems exist alongside offshore jurisdictions where different rules and courts prevail. The traditional onshore jurisdictions generally operate on the model of civil law legal systems, and the substantive law follows the civil law-based codes modelled, to various extents, on the Egyptian Civil Code 1948.

The Egyptian Civil Code inspired, among other pieces of legislation, the civil codes of, Bahrain, Jordan, Kuwait, Libya, Qatar and the UAE, and Saudi Arabia has now joined the ranks with its new Civil Transactions Law, which was enacted on 19 June 2023. To a large extent, these civil law codes that form part of the onshore laws remain the law applicable to construction contracts in the region, especially when contracting with public entities.

Several countries in the region have also established offshore jurisdictions, the most prominent of which are the Abu Dhabi Global Market and the Dubai International Financial Center (DIFC) in the UAE. These two jurisdictions provide both a court system and a substantive legal system that follow common law tradition.

The duality of the legal systems that construction arbitration practitioners face in the region is further evidenced by (1) the establishment in 2017 in the DIFC courts of the Technology and Construction Division, echoing what exists in London, and (2) the DIFC law on contracts, which is based on international standards inspired by civil law codes.

The arbitration and construction market of the region also reflects this duality. Common law-trained lawyers represent a large majority of practitioners of construction arbitration in the Gulf, working alongside experts and construction managers trained on the UK Society of Construction Law Protocol^[31] – a reference guide for the analysis of construction claims, especially the analysis of delay and disruption to construction works.

Yet, this protocol and the practices originating from England often need to be confronted with the Civil law concepts of breach of contract, abuse of right, causation, and the construction-specific duties of information and cooperation between the Parties.^[32] In addition to common causes of claims on construction projects worldwide, engineering defects, rework and resultant delays in the early stages of a project are also recurring causes of concern in a region that adopts a model of fast-track construction based on preliminary engineering design.

Panther: illustrating the mixed legal systems in the region

Panther is a case that has attracted headlines in the past few years and that illustrates the legal particularities of disputes commonly encountered in the Middle East and Africa region.^[33] The case started as a typical construction dispute in the GCC region: a contractor (MESC) and an employer (Panther) concluded a contract in 2017 for the construction of a residential tower based on the FIDIC Red Book 1999, subject to DIFC contract law. The project was ultimately delayed, and, as is customary in construction disputes, the contractor (MESC) submitted multiple EOT claims to the employer (Panther), which the latter rejected. This led to Panther liquidating the security guarantees and terminating the contract in late 2019.

At first instance, the DIFC Court found Panther to be responsible for most of the delay in the project; however, it decided that MESC had not complied with the contractual notice requirements in respect of its EOT claims and that, as a consequence, MESC had lost its right to claim EOTs and Panther was entitled to claim liquidated damages.^[34] The DIFC Court of Appeal’s decision did not differ much from the first instance decision on the substance, but the appeal decision provides further insights into the reasoning that led to the peculiar decision, including in relation to the prevention principle and the principle of good faith.^[35]

The prevention principle originates from the common law principle that a party should not benefit from its own wrongdoing in enforcing contracts. It is frequently relied on in construction disputes by contractors to deny responsibility for a delay to a project when the delay is caused by the employer. In this case, MESC relied on the prevention principle, notably referring to the Australian Gaymark case,^[36] and argued that it should not be held liable for the delay caused by Panther, irrespective of the fact that MESC failed to abide by the contractual notice requirements to request an EOT.

The DIFC Court of Appeal rejected MESC’s argument. It considered that applying the prevention principle would allow the contractor to ‘pick and choose’ whether to comply with the EOT clauses as the contractor would know that it would be relieved of its obligation to complete the works by the agreed completion date (and liquidated damages) irrespective of whether it gave notice.^[37]

MESC also argued that it should not be liable to pay liquidated damages for the delay caused by Panther as Panther’s claim would be tantamount to bad faith, relying on the principles of good faith, fair dealing and cooperation enshrined in articles 57 and 58 of the DIFC Contract Law. The Court rejected this argument considering that articles 57 and 58 provide neither a right for the parties to be relieved from their agreement, nor a means for the court to rewrite the contract and redress what one party may consider to be unfair consequences of the agreement.^[38]

The Court’s decision is perplexing from the perspective of civil law. The common law prevention principle has equivalents in civil law, with provisions prohibiting the employer from requesting to meet project deadlines where the delay is caused by the employer. Various other obligations are derived from this principle, which is an emanation of good faith.^[39] For example, the parties have an obligation of cooperation for the proper execution of a contract to transparently disclose matters that may affect the performance and to abstain from acts that will render the other party’s performance more difficult.^[40]

Judging by conferences and posts from law firms, the Court of Appeal’s decision, which was issued by judges with diverse legal backgrounds, has generally been welcomed by common law lawyers but has been regarded with much more circumspection in the civil law world. It is therefore highly likely that this judgment will be relied on in the future in arbitration proceedings, with very different views expressed on its relevance and correctness. At the very least, to the extent that an employer knows of the delaying consequences of its action, it appears well established in countries that have adopted a civil code that good faith and the prohibition of abuse of right would prevent the employer from relying on notification clauses in the contract.

Construction arbitrations in Sub-Saharan Africa

Construction arbitrations in Sub-Saharan Africa have attracted less attention in legal writing in the arbitration community, and contributions are scarcer than for the Middle East and Africa. For example, neither GAR’s ‘Know-how’ section of its website nor its publication The Guide to Construction Arbitration have chapters on Sub-Saharan construction arbitration, and some key publications on construction disputes do not cover this region.^[41]

One reason for the lower volume of analyses in the arbitration community is likely because of the wide diversity that prevails in Sub-Saharan Africa. The region is divided between Lusophone, Francophone and Anglophone countries, which attract different legal practitioners.

This diversity is also reflected in the large number of arbitral institutions handling cases in the region: while the ICC and the London Court of International Arbitration seem to remain the predominant choices for several foreign contractors, the SOAS survey of 2020 reported that Africa-based institutions are gaining visibility.^[42] According to respondents to the survey, the top five arbitral centres in Africa are:

• the Arbitration Foundation of Southern Africa in South Africa, which has enacted rules specific to construction arbitration;
• the Cairo Regional Centre for International Commercial Arbitration;
• the Kigali International Arbitration Centre;
• the Lagos Court of Arbitration (LCA); and
• the Nairobi Centre for International Arbitration (NCIA).^[43]

The same survey found that the countries hosting these centres were also the top five African nations chosen as seats of arbitration, with the exception of the Ivory Coast instead of Kenya. Ivory Coast is home to the Common Court of Justice and Arbitration (CCJA) – the apex judicial and arbitration institution of the Organisation for the Harmonisation of Business Law in Africa. The CCJA, however, does not make it into the list of preferred centres according to the SOAS survey respondents, although it is included in the list of best centres based on an ‘independent coding exercise’.

Engineering and construction arbitrations in Sub-Saharan Africa are still marked by the practices of the lawyers involved, the applicable law and the types of contracts. Standard form contracts may be less prevalent in the French-speaking countries of the region, where recourse to simpler, bespoke contracts are used and civil law-based concepts are likely to be more prevalent, compared to the English-speaking countries in the region, which are influenced by common law approaches to standard contracts and concepts; however, the flux of foreign investors also comes with their approaches to contracting and cultures. For example, the Qatari investment in the Kigali International Airport referred to above will be accompanied by Qatari construction contract practices and the use of bespoke contracts.

Among the interesting decisions made in the past few years is one concerning a project that had already been at the centre of attention in 2013 but that recently returned to the spotlight: the construction in Rwanda of a unique methane extraction and power generation plant on Lake Kivu, one of the African Great Lakes.^[44]

The case was brought by a Rwandan state entity against a subsidiary of a UK company, first as an ICSID arbitration (one of very few cases brought by a state entity against an investor), before its withdrawal and re-submission to an ad hoc London-seated UNCITRAL arbitration. The Rwandan Energy Utility Corporation Limited (EUCL), a subsidiary of the state-owned Rwanda Energy Group (REG), claimed US$80 million against KivuWatt, a subsidiary of ContourGlobal, a London-listed company, because of the alleged damages suffered from the plant’s delay in entering commercial service. According to the information disclosed, EUCL claimed that, as a result of the delays, it suffered damage because it had to obtain electricity from imported fuel oil, which is a more expensive source. The arbitral tribunal ruled against EUCL in 2022.

Outlook and conclusions

Large-scale projects have continued to flourish in Middle East and Africa, as has arbitration. But the past few years have also witnessed significant changes in the region in construction projects and disputes. The origin of foreign investment in Africa has shifted considerably, with a decrease of Chinese investments into the continent and the opening of new opportunities for other global players, of which Gulf countries in particular have taken advantage.

Another key development concerns the enactment by Saudi Arabia of its new Civil Transactions Law, which will govern construction contracts in the country and should provide greater certainty to companies and investors looking to participate in the booming construction sector.

Looking ahead, the planned infrastructure projects in both the Middle East and Africa will continue to attract foreign companies and challenge both investment and commercial arbitrations to find solutions that adapt to clients’ needs.

Endnotes

^[1] Dhanusha Gokulan and Tawfiq Nasrallah, ‘Abu Dhabi International officially renamed Zayed International Airport’, Gulf News (9 Feb 2024).

^[2] Vision 2030 Overview, p. 6.

^[3] Cabinet Resolution No. 541 of 1438 issuing the Executive Regulations implementing the Arbitration Law.

^[4] Alison Ross ‘New rules empower SCCA court’, GAR (2 May 2023).

^[5] Neil Hodge, ‘International firms rush for local licences as Saudi Arabia amends Code of Law Practice’, International Bar Association (23 Jan 2024).

^[6] ‘Number of projects in the construction sector in Africa from 2015 to 2020’, Statista.

^[7] ‘Number of infrastructure and capital projects in Africa in 2021, by leading country’, Statista.

^[8] ‘Africa Construction Trends Report 2021’, Deloitte (5 Apr 2022).

^[9] Ronak Gopaldas, ‘Is a new chapter in China Africa relations on the horizon?’, Nanyang Technological University (22 Jan 2024).

^[10] Jack Bantock, ‘The $2 billion Rwandan airport that could help African aviation take off’, CNN (20 July 2023).

^[11] Brazil, Russia, India, China and South Africa.

^[12] Sneha Abraham, ‘Central African Republic Signs Deal For New Airport’, ConstructAfrica (24 Jan 2024).

^[13] ‘Lobito Atlantic Railway’, Trafigura (1 Oct 2023).

^[14] Press release, ‘Global Gateway: EU signs strategic partnerships on critical raw materials value chains with DRC and Zambia and advances cooperation with US and other key partners to develop the “Lobito Corridor”’, European Commission (26 Oct 2023).

^[15] Arne Schütte, ‘EU’s Global Gateway keeps focus on investments in Africa’, Science|Business (1 Feb 2024).

^[16] Julian Pecquet, ‘US and EU join forces on rail corridor in play for African minerals’, The Africa Report (14 Sept 2023).

^[17] Hamza Kyeyun, ‘Turkish companies wining [sic] African infrastructure, superstructure projects’, Anadolu Ajansı (13 Jan 2024).

^[18] Toby Fisher, ‘Turkish investor puts Yemen on notice over road project’, GAR (24 Aug 2022).

^[19] Susannah Moody, ‘Turkish contractor fails to revive treaty claim against Libya’, GAR (18 Jan 2024).

^[20] Tom Jones, ‘Turkish construction group files ICSID claim against Saudi Arabia’, GAR (22 Aug 2023); Güriş İnşaat ve Mühendislik Anonim Şirketi v Kingdom of Saudi Arabia, ICSID Case No. ARB/23/36.

^[21] ‘The ICSID Caseload — Statistics: Issue 2023-1’, p. 12.

^[22] Salini Costruttori SpA and Italstrade SpA v Kingdom of Morocco, ICSID Case No. ARB/00/4, Decision on Jurisdiction (23 July 2001); Jan de Nul NV and Dredging International NV v Arab Republic of Egypt, ICSID Case No. ARB/04/13, Decision on Jurisdiction (16 June 2006), pp. 28 ff.

^[23] See also, as reported by GAR, an ICSID case against Egypt in relation to the ‘New Cairo’ city by a Dubai-owned manufacturer under the Netherlands–Egypt bilateral investment treaty: Susannah Moody, ‘Egypt settles “New Cairo” claim’, GAR (29 Nov 2022).

^[24] Toby Fisher, ‘Italian constructor brings ICSID claim against Cameroon’, GAR (12 June 2023); Gruppo Officine Piccini SpA v Republic of Cameroon, ICSID Case No. ARB/23/21.

^[25] Sebastian Perry and Susannah Moody, ‘Roadbuilders try to revive ICSID claim against Kuwait’, GAR (24 Mar 2023).

^[26] Jack Ballantyne, ‘Spanish contractor pursues Gabon over stadium award’, GAR (13 Oct 2023); Eurofinsa SA v Gabonese Republic, ICC Case No. 22899/DDA (C-22705/DDA).

^[27] Jack Ballantyne, ‘ICC panel decides Algerian rail dispute’, GAR (1 Sept 2023). See also against Algeria Sebastian Perry, ‘GE settles Algerian power plant dispute’ GAR (25 Jan 2023).

^[28] Jack Ballantyne, ‘Bahrain enforces ICC award in Paris’, GAR (25 Apr 2023).

^[29] Susannah Moody, ‘Iraq’s central bank ordered to pay Emirati group’, GAR (9 June 2023).

^[30] Cosmo Sanderson, ‘Iraqi sea wall award comes to light’, GAR (7 June 2022)

^[31] Society of Construction Law, Delay and Disruption Protocol (2nd edn) (Feb 2017).

^[32] Mohamed S Abdel Wahab, ‘Construction Arbitration in the MENA Region’, in Stavros Brekoulakis and David Brynmor Thomas KC (eds), The Guide to Construction Arbitration (5th edn), GAR (12 Oct 2023).

^[33] Panther Real Estate Development LLC v Modern Executive Systems Contracting LLC.

^[34] Panther Real Estate Development LLC v Modern Executive Systems Contracting LLC, Claim No. TCD 003/2019, Judgment (24 June 2021).

^[35] Panther Real Estate Development LLC v Modern Executive Systems Contracting LLC [2022] DIFC CA 016.

^[36] Gaymark Investments Pty Ltd v Walter Construction Group Ltd [1999] NTSC 143.

^[37] [2022] DIFC CA 016, at 55.

^[38] [2022] DIFC CA 016, at 58 to 61.

^[39] See also the discussion on North Midland Building Ltd v Cyden Homes Ltd [2018] EWCA Civ 1744 in Bruno Hardy and Arnaud Nuyts, ‘Overview: Construction Arbitration in Europe’, in The European Arbitration Review 2020, GAR (15 Jan 2020).

^[40] See Abdel Wahab, ‘Good faith’.

^[41] ‘2022 Global Construction Disputes Report’, Arcadis.

^[42] Emilia Onyema, ‘2020 Arbitration in Africa Survey Report’, SOAS University of London (30 June 2020).

^[43] ibid; however, as noted in footnote 9 of the report, ‘[r]espondents included the ICC, LCIA, and PCA which are non-African centres in their responses and we have ignored these responses for purposes of this report’.

^[44] Douglas Thomson, ‘Rwandan exploding lake at centre of dispute’, GAR (13 May 2013); Cosmo Sanderson, ‘Rwandan state entity loses power plant claim’, GAR (10 Aug 2022).