When International law firm Pinsent Masons announced in early April the promotion of construction disputes lawyer Nesreen Osman to Partner as of 1 May 2019, it caught the attention and interest of your writer.
What drew Nesreen to a male-dominated sector like construction and development? What challenges awaited her in this sector? Did she have to wear a hard hat and bring a softer approach to do her job well?
In reality, all Nesreen had to be or do, is her very best.
Nesreen has acted for many years on behalf of main contractors, subcontractors, consultants and employers and has extensive experience in the Middle East on a variety of forms of dispute resolution including international arbitration, litigation and mediation.
AMEinfo conducted an exclusive interview with Nesreen where her legal prowess and technical abilities were on full display.
Making a case
Nesreen explains how her academic background helped her excel in the construction field.
“I have no engineering background, but I have an Honours Science degree diploma and followed it with a law degree. My scientific background, more than likely, allows me to understand how analytical and concise the clients are,” Nesreen says.
Nesreen’s clients are contractors who want to resolve disputes with project developers towards the completion of these projects.
“In addition to major Middle East contractors, we act for the top European, Japanese, Chinese and Indian contractors operating in the region. I deal with a huge variety of different disputes and types of construction. One day I could be dealing with AC systems, another on underwater pipes, gas processing plants and so on, and in all cases, you really need to understand what is going on, technically and legally,” Nesreen explains.
"We work with 18/30 top tier contractors in the region and look forward to lead and motivate our teams to best represent our client’s interest."
Identifying the problem
Whilst there is a contract binding both parties, very often, setbacks might take place on site. Designs might go wrong, construction might face some defects, and in some cases, delays might take place for several reasons.
These are the issues that lawyers like Nesreen face.
Lawyers in construction first speak with clients’ technical people, sit for days in rooms looking at diagrams of how the technical side works and simultaneously needing to understand the contract and how it should be interpreted to plead the client’s case on paper.
There are various resolution methods, some easy, others complicated and require longer and costlier procedures.
The easy, cheap and quick method is settlement, and the role of lawyers is to help guide the client as to what his legal position is.
"In that role, we are advising the client so they can have negotiations with the other party, knowing what part of their position is solid or weak. Sometimes we go and negotiate with them," says Nesreen.
If that doesn’t work, parties could then go into arbitration and litigation.
“When it reaches that point, we do all the fact finding and contractual analyses and we interview witnesses, go onto the site and understand how things work and what’s gone wrong,” continues Nesreen.
“We will prepare pleadings on behalf of clients, speak to experts, appoint technical experts like engineers and architects, etc. to give opinions on the client’s position in support of the case in arbitration, and sometimes we have a court hearing where everybody turns up and presents their case and ultimately the case is decided by the judge or tribunal.”
Governing laws do not need to be native to the country where the dispute occurs. Some of Nesreen’s work involves project disputes in the Middle East with local parties who chose the English law as the reference. Clients have the option of choosing their centre of arbitration – if DIFC Courts are chosen for example, this would be governed based on English common law.
“The big difference, from a legal perspective, between the region and the UK for example, is that in the UK you have precedence system, where you have a body of case law, and have a very good idea of what the courts are going to say and we can be a bit more precise in terms of advice and position because the courts have to follow the previous decisions of the higher courts. The civil court jurisdictions like in the UAE, Saudi and Qatar don’t have such precedence systems. The courts do not have to follow previous decisions,” explains Nesreen.
Nesreen adds that FIDIC is one of the most popular contracts around the world and regionally.
Most common causes for disputes
Nesreen states that the top reasons that lead to disputes are improper administration of contracts.
“The contracts are often quite clearly drafted and for various different reasons like pressures of work, difficult clients or contractors, the projects are not administered the right way, such as improper handling of claims procedures where responses are delayed, variations are not issued and extensions are not granted,” Nesreen lists.
“Partly, it might be because the engineers sometimes have pressures from their employers, and sometimes it’s just a case of parties in conflict are from different parts of the world, misinterpreting information.”
Does new technology complicate the job of attorneys?
3D printing, drones and other disruptive technologies used in construction, by themselves, are not an issue for lawyers.
However, Building Information Modeling (BIM) could be.
“BIM modeling in the UAE is used for big projects like the Abu Dhabi Louvre. The construction world is beginning to use it more and more but the technology is often left out of the contract, and there is some catching up to do in terms of how the model is to be used, if the whole supply chain is able to use it, who is responsible for any mistakes, or who owns the data, and this leads to all kinds of disputes,” reveals Nesreen.
There are aspects of technology disrupting the legal system itself.
“In the future, the sector will be looking at AI courts to settle disputes,’ offers Nesreen.
Industry site WIRED revealed in March that the Estonian Ministry of Justice has asked to design a “robot judge” that could adjudicate small claims disputes of less $8,000. Officials there hope the system can clear a backlog of cases for judges and court clerks.
“In the UAE we have a government supportive of innovation and technology and willing to spend to build innovative and interesting buildings,” concludes Nesreen.