For parties negotiating construction, infrastructure and energy contracts in Dubai, the choice of governing law and dispute resolution forum is a decision with lasting consequences — not least for how expert evidence will be prepared, tested and ultimately weighed by the decision-maker. Different forums, from the DIFC Courts to international arbitration, operate on fundamentally different evidentiary traditions, and expert witnesses need to prepare very differently depending on which forum applies.
Two Legal Systems, One Emirate:
The DIFC Courts operate as a common law jurisdiction within Dubai, applying English-language procedure closely modelled on the English Civil Procedure Rules, including detailed provisions governing expert evidence, disclosure and case management.
Implications for Expert Evidence:
In the DIFC Courts and DIFC-seated arbitration (typically administered by DIAC following the 2021 consolidation):
• Experts are almost always party-appointed, with tribunals or judges weighing competing expert evidence • Detailed expert declarations, disclosure of instructions (where good cause is shown), and structured cross-examination are standard • Joint conferral, exchange of draft reports on a without-prejudice basis, and even concurrent evidence ("hot-tubbing") are increasingly directed by tribunals and judges managing complex cases • The IBA Rules on the Taking of Evidence, and in some cases the CIArb Protocol for Party-Appointed Expert Witnesses, are frequently adopted by reference
Why This Matters for Construction and Energy Contracts:
Many construction and energy contracts in Dubai are structured with DIFC-seated arbitration or DIFC Court jurisdiction specifically to access the common law evidentiary framework and the DIFC's internationally recognised enforcement mechanisms, which facilitate the enforcement of its judgments internationally.
For government-related entities and projects governed by UAE law, however, proceedings will typically default to an arbitration seated outside the DIFC, making early engagement with the expert witness process critical to protecting a party's position.
Practical Guidance:
Parties structuring UAE construction, infrastructure, energy and rail contracts should consider forum choice not only in terms of substantive law, but in terms of how technical and quantum disputes will actually be proven if a dispute arises. This includes:
• Confirming whether the chosen forum uses party-appointed or tribunal/court-appointed experts, and instructing experts accordingly from project inception • Ensuring contractual documentation and site records are maintained to a standard that will support expert evidence in arbitral or court proceedings, given that the applicable forum may not be finally settled until a dispute crystallises • Engaging experts with demonstrated experience across both international arbitration and the offshore common-law courts, given the frequency with which large projects involve parties, financiers or insurers governed by different dispute resolution clauses
Understanding these procedural differences at the contract drafting stage — rather than only once a dispute has arisen — remains one of the most effective ways to manage the risk and cost of construction and energy disputes across Dubai's dual legal landscape.