Doctrinal Absence and Judicial Pragmatism: The Anticipatory Breach Problem in UAE Law

Abstract

In general, the doctrine of anticipatory breach of contract addresses circumstances arising in the interim period between contract formation and the agreed time for performance that materially increase the risk that the promised performance will not be forthcoming when due. In short, the doctrine of anticipatory breach provides a party anticipating a future breach with immediate legal relief, without having to wait for an actual breach to materialise. The United Arab Emirates (UAE), an emerging civil law jurisdiction, does not expressly incorporate a doctrine equivalent to anticipatory breach into its statutory framework. The central inquiry of this article is whether the current UAE regime provides solutions that are functionally comparable to the doctrine of anticipatory breach. After a brief overview of the legal principles relating to anticipatory breach and the legal landscape in the UAE, this article proceeds to analyse a sample of construction-related disputes in which certain UAE courts appeared to permit forms of relief that resemble the outcomes typically associated with anticipatory breach. The article examines the legal implications of those cases.