Claim No: CFI 008/2015

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

BOCIMAR INTERNATIONAL N.V.

                                                Claimant/Judgment Creditor

and

EMIRATES TRADING AGENCY LLC

Defendant/Judgment Debtor

  ORDER OF REGISTRAR MARK BEER

NOTICE: YOU, BARTHOLOMEW KAMYA, MUST OBEY THIS ORDER. IF YOU DO NOT, YOU MAY BE FINED OR COMMITTED TO PRISON FOR CONTEMPT OF COURT

UPON the debt owed by the Judgment Debtor to the Judgment Creditor (the “Judgment Debt”) pursuant to:

(i) The Orders made on 17 July 2014 by the High Court of England and Wales pursuant to Section 66 of the Arbitration Act (respectively, the “First Order” and the “Second Order” as more particularly described in the Claim Form issued on 30 March 2015);

(ii) The Consent Order in the DIFC Court of First Instance dated 26 January 2016; and

(iii) The Judgment of Justice Sir John Chadwick dated 28 January 2016

AND UPON reviewing the Judgment Creditor’s Application dated 2 June 2016 (the “Part 50 Application”) seeking an Order that the following individuals attend Court to provide information pursuant to Part 50 of the Rules of the DIFC Courts (“RDC”):

(1) Dani Baroudi, Licensed Manager of the Judgment Debtor;

(2) Bartholomew Kamya, Authorised Representative of the Judgment Debtor;

(3) Rashid Abdulla Ahmad Al Ghurair, Chairman of ETA Ascon Holding LLC, the 100% shareholder of the Judgment Debtor;

(4) Abdulaziz Abdullah Al Ghurair, Managing Director of ETA Ascon Holding LLC; and

(5) Ibrahim Abdullah Ahmad Al Ghurair, Licensed Manager of ETA Ascon Holding LLC,

AND UPON the Judgment Creditor’s request in the Part 50 Application for the Judgment Debtor to produce the documents outlined in Schedule A to this Order (the “Requested Documents”) in connection with the Judgment Debt

AND UPON the Order of the Court dated 27 September 2016 permitting service by alternative methods

AND UPON considering the correspondence between the parties

IT IS HEREBY ORDERED THAT:

1.The Judgment Debtor shall disclose to the Judgment Creditor the Requested Documents set out in Schedule A to this Order within 14 days of being served with this Order and in any event by no later than 2pm on Sunday 6 November 2016.

2. Mr Bartholomew Kamya shall attend the DIFC Courts at 2pm on Tuesday 8 November 2016 to answer on oath such questions as the Court may require.

3. The Requested Documents shall be provided to Gateley UK LLP (DMCC Branch).

4. Liberty to apply.

5. Costs shall be determined at the hearing.

Issued by:

Mark Beer

Registrar

Date of issue: 6 October 2016

At: 4pm

SCHEDULE A

(1) Documents demonstrating the means and financial status of the Judgment Debtor and ETA Ascon Holding LLC, including ownership of assets, real property, shares in other companies, bank accounts, debtors and any other documentation to enable the Judgment Creditor in recovering the Judgment Debt;

(2) Three years audited financial statements of the Judgment Debtor and ETA Ascon Holding LLC;

(3) Three years bank statements of all bank accounts held or controlled by the Judgment Debtor;

(4) Financial statements of ETA Ascon Holding LLC; and

(5) Statements showing all profits, dividends or proceeds of sale received by or payable to the Judgment Debtor by the following subsidiaries of the Judgment Debtor:

a. ETA Engineering Private Limited, Chennai India (23.82% direct ownership and 84.95% through ownership of Electromechanical Technical Associates);

b. Electromechanical Technical Associates Limited, Mauritius (76% owned); and

c. Port Louis Management Services (76% owned).

The post CFI 008/2015 Bocimar International N.V. v Emirates Trading Agency LLC appeared first on DIFC Courts.

Claim No. CA 011/2016

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF APPEAL

BETWEEN

 ELSECO LIMITED

Appellant

and

MR PIERRE-ERIC DANIEL BERNARD LYS

Respondent

ORDER OF H.E. JUSTICE OMAR AL MUHAIRI

UPON reviewing the Respondent’s Cross-Appeal Notice and supporting documents dated 6 September 2016

AND UPON reviewing the relevant documents in the case file

IT IS HEREBY ORDERED THAT the Respondent is granted leave to appeal against the Judgment of H.E. Justice Ali Al Madhani dated 14 July 2016 pursuant to RDC 44.8(2), on the basis that the issues are of public importance and there is therefore a compelling reason why the appeal should be heard.

Issued by:

Natasha Bakirci

Assistant Registrar

Date of Issue: 9 October 2016

At: 4pm

The post CA 011/2016 Elseco Limited v Mr Pierre-Eric Daniel Bernard Lys appeared first on DIFC Courts.

Claim No. CFI 039/2015

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

TOFIQ ASLAM

Claimant

and 

BSA AHMED BIN HEZEEM & ASSOCIATES LLP

Defendant

ORDER OF DISCONTINUANCE

UPON the parties agreeing to the terms set forth in a confidential settlement agreement concluded and signed between the parties on 22 September 2016

AND UPON the Claimant filing a Notice of Discontinuance on 25 September 2016

AND UPON all outstanding Court fees having been settled

IT IS HEREBY ORDERED THAT:

1.Case no. CFI-039-2015 be discontinued.

2. Each party shall bear their own costs.

Issued by:

Natasha Bakirci

Assistant Registrar

Date of issue: 10 October 2016

At: 4pm

The post CFI 039/2015 Tofiq Aslam v BSA Ahmed Bin Hezeem & Associates llp appeared first on DIFC Courts.

laim No: XXXX

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai

IN THE SMALL CLAIMS TRIBUNAL

BEFORE SCT JUDGE MARK BEER

BETWEEN 

GILAH LLC

Claimant 

and

 GILAD LLC 

Defendant 

Hearing:          24 August 2016

Judgment:       3 October 2016

JUDGMENT OF SCT JUDGE MARK BEER

UPON hearing the Claimant’s representative and the Defendant’s representative;

AND UPON reading the submissions and evidence filed and recorded on the Court file

IT IS HEREBY ORDERED THAT:

1.The Defendant shall vacate the retail unit, in DIFC (the “Premises”) with immediate effect.

2. The Defendant shall pay the Claimant AED 300,911.60 for, among other things, unpaid rent, late payment penalty, bounced cheque fee and district cooling charges pursuant to the terms of the lease agreement dated 8^th February 2015 for the Premises signed between the Claimant and the Defendant (the “Lease Agreement”), as set out in numbered paragraphs 1 and 2 of the remedies sought by the Claimant in its claim form.

3. All amounts paid by or on behalf of the Defendant to the Claimant in respect of the Premises and/or the Lease Agreement shall be set off against the amount payable under numbered paragraph 2 above.

4. The parties shall bear their own costs.

5. Enforcement of this judgment shall be stayed until the determination of the claim brought by the Defendant against the Claimant in connection with the Premises, or until an earlier order of Court.

THE REASONS

Parties:

6. The Claimant, Gilah LLC is the Landlord of retail unit DIFC.

7. The Defendant, Gilad LLC, is a DIFC registered company that provides beauty and health care services to women. It was represented in this claim by Defendant’s Representative, its Founder and Managing Director.

Background:

8. On 7 December 2014 Defendant’s Representative expressed an interest via email to the Claimant in leasing a retail outlet in the DIFC for fit-out as a Nail Bar. She said “I would like to express my interest in leasing the retail outlet of 1,365 square feet in DIFC , for my upcoming Gilad, Nail Bar concept . . . we are offering to pay 158 per square feet for that….Can you also please send me the autocad drawing . . .” This email followed a visit by Defendant’s Representative during which she had been shown a premises later identified as (see below).

9. On 8 December 2014 the Claimant’s employee responded with a proposed revision to the rent payable with four cheques per year and offering a three month rent-free fit-out period “however, if at all, if there is any delay from apartment side to provide any approval or NOCs, or other documentations that delayed the fit out we can try to extend it, which is subject to confirmation.”

10. On 9 December 2014 Defendant’s Representative wrote to the Claimant saying “[I] would like to confirm my acceptable of your offer, for the details discussed that Will include 3 months fit out period , also for the Rent , with a total of 220,000 a year payable in 4 cheques . . . Could you please email me the autocad drawing . . . and highlight on it; where the full glass window is? Just to send it across to my interior designer ?, for a Quick view? . . . Could you send the detailed offer letter? As well , in order to move forward quickly?, and Will prepare the deposit cheque . . .”

11. On 10 December 2014 the Claimant’s employee sent an email attaching “. . . the AutoCAD drawings as requested. I shall send you the offer letter later today . . .”

12. On 16 December 2014 Defendant’s Representative wrote saying “My designer opened the file, but she was lost, about the exact outlet . . . which one is it??”

13. On the same day, the Claimant’s employee wrote “Go ahead with unit please.”

14. On 8 February 2015, the Claimant and Defendant entered into a Lease Agreement for the retail unit in DIFC.

15. On 8 March 2015, Defendant’s Representative requested the Claimant via email to obtain two No Objection Certificates (NOCs) which she required before beginning the fit-out. These NOCs were not obtained until April. Defendant’s Representative wrote via email on 9 April 2015 to the Claimant that “We are not able to start paying for rent on May 22nd!! If you delayed me for these weeks to get the NOC.”

16. On 14 September 2015 Defendant’s Representative wrote to the Claimant pointing out that unit as marked on the AutoCAD drawings provided by the Claimant’s employee was not the unit referenced in the Lease Agreement. The email states “This is a complete disaster for me as a business, everything has to be done from 0, and all my business plan and investment forecast has been based on the space, that generates the income, now I’ll have to squeeze everything, have less stations and practically no space for my stock room. It is a real disaster, and a big headache and a lot of loss, for me.” This email followed an email from Mr Kaer, an architect at Company, highlighting the error.

17. By an invoice dated 21 September 2015, company charged the Defendant AED 160,400 for “Delay Charges due to discrepancy in shop unit As-built drawing & Actual shop.”

18. According to the Defendant, the Gilad LLC opened in March of 2016; but the profit from the business since that date has not been sufficient to repay the debts caused by the delays, themselves caused (it is alleged) by the mistake of the Claimant. However, as the Defendant had not paid rent for a period of 12 months, and since the cheque given to the Claimant was bounced, the Claimant ordered the Defendant to vacate the unit and pay all outstanding amounts in a claim filed on 16 June 2016 at the DIFC Courts’ Small Claims Tribunal.

19. The parties were unable to reach a settlement at their Consultation before SCT Officer Mahika Hart, held on 29 June 2016. Thus, I heard the arguments of both parties at a First Hearing on 20 July 2016. The parties made supplemental submissions after the First Hearing and I requested a Second Hearing on 24 August 2016 at which both parties attended and supplemented their arguments.

The Claim:

20. On 16 June 2016, the Claimant lodged a claim with the DIFC Courts’ Small Claims Tribunal against the Defendant, in which it claimed that, in breach of the terms and conditions of the Lease Agreement, the Defendant had failed to fulfil its obligation to pay the due rent.

21. The Claimant’s submissions in the claim form focused on the breaches of the Lease Agreement by the Defendant. The annual rent amount according to clause 9 of this agreement was AED 220,000 and it was claimed that rent had not been paid for a period of 12 months from 23 May 2015 until 22 May 2016. Additionally, the first instalment of the second year’s rent was said to be unpaid and a cheque dated 25 May 2016 had been bounced. The Claimant sought AED 220,000 for the year of unpaid rent; AED 57,750 towards a bounced rent cheque; AED 5,000 as penalty for the bounced cheque; AED 15,811 as a late payment penalty per clause 2 of the Terms and Conditions of the Lease Agreement; and AED 2,350.60 for District Cooling Charges from March to June 2015. This came to a total of AED 300,911.60.

22. The Claimant also maintained that its claim was specifically about rent, which the Defendant agreed had not been paid. All other claims on the part of the Defendant regarding the size and the layout of the retail space and delays in obtaining NOCs were, in the view of the Claimant, separate claims that did not have relevance in this particular case. The Claimant was not open to waiving any rent payments but expressed the possibility of the creation of a payment plan for the first year of rent.

23. The Claimant’s position during the hearings was resolute, although I can see from the correspondence that Mr Suad, CEO of company, had adopted a more compassionate approach during the course of the dispute, which is to be commended. During the hearings the Claimant maintained its position that the Lease Agreement is paramount to any equitable relief and must be honoured in accordance with its terms. It was unwilling to accept responsibility for the consequences of the mistake made by its former employee, suggesting that the Defendant was responsible for her own losses and, if not the Defendant, then it was an issue of the ‘building management’. I was not impressed by the Claimant’s stance, although I can understand why it was in its interest to adopt the position it did.

The Defence:

24. The Defendant responded to the allegations of the Claimant during the hearings by arguing that it had every intention of paying the rent but was unable to do so due to delays caused by the Claimant both through the mistaken identification of the premises and delays in issuing NOCs and other approvals. In addition, the Defendant maintained that it was the Claimant, as landlord, which had the responsibility to provide the correct information regarding the layout of the leased space, and therefore the Claimant should take responsibility for the consequences caused due to the misinformation regarding the retail space. This included loss of income due to the delayed opening and the wasted salaries of her employees. I find no liability upon the Claimant in respect of any allegations of delays regarding the NOCs, both because the Claimant appears to have acted within reasonable timeframes in the circumstances and because the Claimant had not taken on a responsibility to provide such documents within any specified timeframe.

25. As stated in Article 37 of the DIFC Contract Law, “A party may only avoid a contract for mistake if, when the contract was concluded, the mistake was of such importance that a reasonable person in the same situation as the party would not have concluded it at all if the true state of affairs had been known and (a) the other party . . . caused the mistake, or knew or ought to have known of the mistake.”

26. During the hearing, while both parties expressly agreed upon the fact that mistakes were made with regard to the layout and plans of the retail space, the Claimant maintained that those mistakes were not material for the purposes of the signing of the Lease Agreement. The Defendant was of the opinion that they were so significant that they led to severe business losses which rendered her unable to pay rent. During the hearing, the Defendant expressed her desire for an extension of the Lease Agreement so that no rent payment would be due until the date of opening of Gilad in March 2016; an increase in the contractual notice period in the Lease Agreement from three to six months; reimbursement of the lost income during the elongated fit-out period; salaries of employees for three months; and a lease of five instead of three years.

27. The Defendant estimated its losses to be in the region of AED 380,000 excluding claims for rent abatement for the period of the delays caused by the mistake (which amounted to 18 months in her written submissions, but were reduced to 9 months in the hearings). The Defendant also seeks that its rent be reduced to reflect the smaller size of the premises versus unit.

28. I understand that the Defendant has filed a claim against the Claimant in respect of the above.

Findings:

29. This is a case in which an entrepreneur, Defendant’s Representative, has acted in good faith to identify premises for her new business, seemingly single-handedly at times to struggle through the surprising complexity of renting a store, to work with designers and contractors to fit out the store, to establish her company (the Defendant) and to endeavour to build that business. Her submissions in the hearings and on paper evidence the challenges faced by those looking to commence a small business. Defendant’s Representative would appear to have been operating against tight deadlines and with limited resources, which required her to open her store as soon as possible in order to generate cash-flows to set off her up-front expenses.

30. Defendant’s Representative would not appear to have been legally represented during the course of this matter and there is no evidence to suggest that Defendant’s Representative or the Defendant obtained legal advice about the terms of the Lease Agreement that was signed in February 2015. Based on the submissions made during the hearings, I would be surprised if Defendant’s Representative understood the significance of some of the provisions within the Lease Agreement.

31. Prior to the signing of the Lease Agreement, a mistake which the Claimant acknowledges was made by its staff member, led to a chain of events which ultimately caused the Defendant to lose time and money, resources which the Defendant did not have, and which have no doubt contributed to the Defendant’s inability to settle the rent due pursuant to the Lease Agreement.

32.That Defendant’s Representative or the Defendant did not seek legal advice regarding the Lease Agreement, or possibly even understand the significance of many of its provisions, is problematic for the Defendant. It is a particularly onerous lease, drafted in favour of the Claimant, and it is not in a form which one would expect a party who has sought legal advice to sign. However, it has been signed. Of particular difficulty for the Defendant are clauses 10, 34, 45 and 58.

Relevant Law

33. Although not pleaded, I have examined the law of non est factum and its applicability to the current situation. Whether looking at our own jurisprudence or that of Australia, Canada or the UK, the facts do not extend to such a defence by the Defendant.

34. I have also looked at the common law position with regard to mistake, particularly unilateral mistake and the effect of misrepresentation. There is much to support an argument that such a defence is open to the Defendant, although I will not dwell further because it has not been pleaded in this matter and perhaps will form part of the claim made by the Defendant against the Claimant.

35. Lastly, I endeavoured to explore with the parties the application of the law of mistake as it applies in the DIFC under the DIFC Contract Law. I was grateful for the input provided by both parties.

36. The relevant provisions of the DIFC Contract Law are as follows:

“37. Relevant mistake

(1) A party may only avoid a contract for mistake if, when the contract was concluded, the mistake was of such importance that a reasonable person in the same situation as the party would not have concluded it at all if the true state of affairs had been known, and

(a) the other party made the same mistake, or was also mistaken, or caused the mistake, or knew or ought to have known of the mistake and it was contrary to reasonable commercial standards of fair dealing to leave the mistaken party in error; or

(b) the other party had not at the time of avoidance acted in reliance on the contract.

(2) However, a party may not avoid the contract if:

(a) it was grossly negligent in committing the mistake; or

(b) the mistake relates to a matter in regard to which the risk of mistake was assumed or, having regard to the circumstances, should be borne by the mistaken party. . . .

42. Confirmation

If the party entitled to avoid the contract expressly or impliedly confirms the contract after the period of time for giving notice of avoidance has begun to run, avoidance of contract is excluded. . . .

44. Notice of avoidance

The right of a party to avoid the contract is exercised by notice to the other party.

45. Time limits

Notice of avoidance shall be given within a reasonable time, having regard to the circumstances, after the avoiding party knew or could not have been unaware of the relevant facts or became capable of acting freely.

46. Partial avoidance

Where a ground of avoidance affects only individual terms of the contract, the effect of avoidance is limited to those terms unless, having regard to the circumstances, it is unreasonable to uphold the remaining contract.

47. Retroactive effect of avoidance

(1) Avoidance takes effect retroactively.

(2) On avoidance either party may claim restitution of whatever is supplied under the contract or the part of it avoided, provided that it concurrently makes restitution of whatever it has received under the contract or the part of it avoided or, if it cannot make restitution in kind, it makes an allowance for what it has received.”

37. In this case, the Defendant, represented by Defendant’s Representative who is not a lawyer, has not filed a notice of avoidance under Article 44 of the DIFC Contract Law, but her submissions include various pieces of correspondence in which she highlights the mistake and impact it has had. Indeed, the Defendant does not appear to want to void the contract ab initio, but rather to recover the losses it has incurred as a result of the mistake.

38. Under the DIFC Contract Law, the Defendant can only escape its obligations under the Lease Agreement if it can demonstrate that when the contract was concluded the mistake regarding the location and size of the premises was of such importance that a reasonable person in the same situation as the Defendant would not have concluded it at all if the true state of affairs had been known and (a) the Claimant made the same mistake, or was also mistaken, or caused the mistake or knew or ought to have known of the mistake and it was contrary to reasonable commercial standards of fair dealing to leave the mistaken party in error; or (b) the Claimant had not at the time of avoidance acted in reliance on the contract.

39. I am of the view that a reasonable person would take the view that a mistake regarding the location and size of the retail unit in the Lease Agreement is of such importance that he or she would not have concluded it if the true state of affairs had been known. In addition, the Claimant had caused the mistake by identifying the wrong unit in correspondence with the Defendant.

40. I do not find that the mistake falls within the contemplation of Article 37(2) of the DIFC Contract Law. Certainly it can be said that Defendant’s Representative was careless, and possibly negligent, to rely entirely on the drawings and confirmations provided by the landlord, but I cannot hold that she or the Defendant was grossly negligent to have done so.

41. At this time, the Defendant has not given notice to avoid the Lease Agreement pursuant to Article 44 of the DIFC Contract Law, although Defendant’s Representative did alert the Claimant to the mistake on the same day that it was discovered, back in September 2015. Since then Defendant’s Representative has been endeavouring to resolve the issue with the Claimant to avoid a situation whereby the Lease Agreement would come to an end. As such, I find that the Defendant has not confirmed the contract for the purposes of Article 42 of the DIFC Contract Law, nor has the time limit expired for the purposes of Article 45 of the DIFC Contract Law.

Conclusion:

42. With no application by the Defendant to void the Lease Agreement under the DIFC Contract Law, or to apply the principles of common law unilateral mistake, I find that the binding terms of the Lease Agreement are clear and remain in force. It may be a one-sided lease, it may not be an accurate reflection of what both parties thought was the location and size of the leased premises upon signing, and it may contain clauses which many might consider draconian. Nonetheless, it is the lease signed by, and binding upon, the Defendant and I award the remedies numbered 1 and 2 as sought in the Claimant’s claim form. I do not award remedy 3.

43. There seem to me to be strong grounds for the Defendant bringing a claim based on the misrepresentation of the Claimant, or to file a notice to void the contract (in whole or part) under the DIFC Contract Law, although those are matters for the Defendant and another Judge. I understand from the Registry that such a claim has been filed and so I order that enforcement of this judgment is stayed pending resolution of that claim, or earlier order of the Court.

Issued by:

Mariam Deen

SCT Judge

Date of issue: 3 October 2016

At: 4pm

The post GILAH LLC v GILAD LLC appeared first on DIFC Courts.

Claim No: XXXX

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai

IN THE SMALL CLAIMS TRIBUNAL

BEFORE SCT JUDGE NATASHA BAKIRCI

BETWEEN

GIICHI LLC  

Claimant

and

GLENYS 

Defendant 

Hearing: 25 September 2016

Judgment: 4 October 2016

JUDGMENT OF SCT JUDGE NATASHA BAKIRCI

UPON hearing the Claimant’s representative and the Defendant’s representative;

AND UPON reading the submissions and evidence filed and recorded on the Court file

IT IS HEREBY ORDERED THAT:

1.The Defendant shall pay the Claimant AED 36,750 as reimbursement for funds erroneously transferred to the Defendant; and

2. The Defendant shall pay the Claimant AED 1,837.50 as reimbursement of the DIFC Courts’ fee.

THE REASONS

Parties

3. The Claimant is Giichi LLC, a franchise company doing business in Dubai and elsewhere.

4. The Defendant is Glenys, a Saudi national who was negotiating with the Claimant regarding opening a franchise of the Claimant company in Saudi Arabia.

Background and the Preceding History

5. On 15 December 2015, the Claimant sent the Defendant a “Letter of Intent” setting out the essential terms with respect to the franchise transaction contemplated between the parties. The Letter of Intent outlines the parties’ intent to move forward with a subsequent “Franchise Agreement” “as soon as reasonably practicable following the date of this Letter.” In consideration of granting a period of exclusivity to the Defendant and pursuant to Clause 6.2 of the Letter of Intent, the Defendant paid the Claimant USD $ 5,000. This payment was refundable in most circumstances if the parties did not end up executing the franchise transaction.

6. The Letter of Intent states in Section 8 that “Each Party will be responsible for payment of its own costs and expenses incurred at any time in connection with the negotiation and consummation of the Franchise Transaction, including legal fees, fees of financial advisors and accounts, whether or not the Franchise transaction is consummated.”

7. The Letter of Intent also includes in the “Schedule of Essential Terms” reference to a “Franchise Fee” of USD $ 10,000 which shall be paid by the Defendant to the Claimant upon execution of the Franchise Agreement.

8. The Letter of Intent was followed by a “Franchise Agreement” executed by the parties on 31 January 2016. The Franchise Agreement is between Giichi LLC and Glenys. The Franchise Agreement states in Clause 4.1.1 that the Defendant will pay to the Claimant a sum of USD $ 10,000 within 10 business days of the commencement date of the Franchise Agreement.

9. On 2 February 2016, the Claimant invoiced the Defendant for the USD $ 10,000 fee. On 10 February 2016 the Defendant sent an email to the Claimant stating that he had transferred “the required amount,” detailing the referencing number, and asking for a receipt once the payment is received.

10. The parties then communicated regarding moving forward with the Franchise Agreement, including finding a location suitable to both parties. This discussion proved time consuming and resulted, on 11 February 2016, in an email from the Claimant to the Defendant stating “Please bear with me . . . It’s looking very complicated . . . We might have to give you back all the deposits that you have made . . . Give me until next week to figure a way.” The email goes on to state that “If that doesn’t work we will see what other franchises you might be interested with. Your money will be returned inc [sic] of expenses.”

11. The Defendant responded on 12 February 2016 saying “I do not see any reason to cancel the contract unless i [sic] did some major mistake.” The Claimant followed up on 17 February 2016 with an email stating “if you want your money back and we try to do another project down the line . . . Let me know how you would like to proceed.”

12. The Defendant responded on 18 February 2016 stating that “i’ve [sic] changed my mind since we talked on the phone last time . . . i [sic] talked with the management in the mall to offer the location to other brands.” He continues on to state “Regarding the fees that i [sic] paid and other expenses we will discuss them later.” The parties then participated in discussions regarding other franchise opportunities for the Defendant but ultimately were unable to come to an agreement.

13. On 11 April 2016, the Claimant emailed the Defendant stating that they had not received the previous USD $10,000 fee in their bank account, asking for further details concerning the transfer and stating that they had already “reimbursed” the Defendant in the amount of USD $ 15,000 on 20 March 2016. This reimbursement was meant to include the USD $ 5,000 initial fee and the USD $ 10,000 franchise fee which they believed had been transferred to them. The Claimant sent two follow up emails to the Defendant shortly after on 12 April 2016 and 14 April 2016.

14. On 18 April 2016, the Claimant again emailed the Defendant asking for assistance on reimbursing the USD $ 10,000 that had been inadvertently transferred to the Defendant.

15. The Claimant followed up, confirming the termination of the Franchise Agreement and seeking reimbursement of the incorrectly transferred funds via email on both 7 and 8 May 2016 stating that the USD $ 10,000 was “transferred to you in good faith since we had received a confirmation from your side that you had made the transfer.” The Defendant responded on 12 May 2016 asserting that he did not know that a termination might happen and that the Claimant’s statements about the transferred funds were “incorrect.” The Claimant responded the same day seeking reimbursement of all of or at least part of the USD $ 10,000.

16. The Claimant again emailed the Defendant on 18 May 2016 reiterating the need to reimburse the money, adding that it is unethical to keep money that “doesn’t belong to you”.

17. On 13 June 2016, the Claimant’s legal representative sent to the Defendant a “legal notice” regarding reimbursement of the mistaken transfer. When no response was received, the Claimant’s legal representative followed up on 29 June 2016 with a “final legal notice” regarding reimbursement of the incorrect transfer.

18. The Claimant then filed a claim with the DIFC Courts Small Claims Tribunal on 7 August 2016 seeking a refund of the USD $ 10,000 transfer. The Defendant responded with intent to defend against the Claim and provided submissions prior to the Consultation.

19. The Claimant’s representative and the Defendant’s representative attended a Consultation before SCT Officer Ayesha Bin Kalban on 29 August 2016 but were unable to reach a settlement. The Defendant was given time to submit a list of expenses which he was purporting to claim against the USD $ 10,000 for which the Claimant sought reimbursement. The Defendant’s final submissions were due in advance of the Hearing on 21 September 2016, buthe Defendant did not take this opportunity to provide further submissions.

20. Thus, a Hearing was scheduled before me on 25 September 2016. The Claimant’s representative and the Defendant’s representative, accompanied by his translator, attending the Hearing. At the Hearing, the Defendant attempted to submit invoices in support of his defence that the Claimant owed him expenses and damages as a result of the terminated Franchise Agreement (see paragraph 23 below).

21. These invoices were not accepted at the Hearing as they were only submitted after a number of previous deadlines had been missed. The Defendant submitted the invoices along with a summary after the Hearing, seeking to add them to the case file for consideration. The Claimant provided a reply to this submission and the Defendant further responded. I have reviewed these late submissions but as they do not contribute to the below judgment, I have not accepted them into the case file.

Particulars and Defence

22. The Claimant argued in the initial Claim Form that they had mistakenly sent the Defendant USD $ 15,000 as reimbursement for fees that they believed already had been paid to them by the Defendant. Upon realising that USD $ 10,000 of that amount had never been received from the Defendant, the Claimant sought reimbursement of this amount from the Defendant to no avail.

23. The Defendant responded to the claim, indicating his intent to defend against it. In his submission, the Defendant argues that the Claimant sent the USD $ 10,000 payment as “compensation resulting from the damage incurred by me based on the fact that the plaintiff had terminated the franchise contract made between us.” Termination of the contract was allegedly effected without the Defendant’s consent and thus the Defendant argues he is entitled to damage for “loss and lack of profit”, “wasted time”, “dealings with various governmental authorities”, “negotiations with the owners of the administrative towers,” and “travel expenses.” Thus, the USD $ 10,000 should not be returned as the Defendant is entitled to retain it as “a temporary compensation for the damage incurred by it due to the unsatisfactory termination.” The Defendant requested dismissal of the claim, compensation for abusive litigation, and legal costs.

24. The Claimant responded to the Defendant’s submission with further evidence of correspondence between the parties along with a witness statement of ABC, the Claimant’s accountant stating that the initial payment of USD $ 10,000 was never received by the Claimant and thus should not have been transferred to the Defendant.

25. The Defendant made an additional submission before the Consultation, arguing that it was the Claimant who had terminated the contract unjustifiably. The Defendant contends that the amount could not have been transferred by the Claimant by mistake and that even if a mistake had been made, “the Defendant shall have the right to withhold this amount until his right in compensation is determined and fulfilled, as agreed upon and applicable in all international laws, regulations and rules.”

26. The Defendant did not provide a breakdown of his claimed expenses or a legal justification for his retention of the funds. The Defendant did not file a counterclaim against the Claimant for any damages or breach of contract.

27. At the Hearing, both parties reiterated their arguments. The Claimant reiterated that the payment had been made by mistake and not for expenses, which the Claimant had no obligation to cover. The Defendant argued that the Claimant had agreed to cover expenses via email but was unable to quantify his expenses claimed at the Hearing. The Defendant’s representative did bring some claimed invoices to the Hearing but did not provide an explanation or a total claim value. These invoices related to travel expenses, translation expenses and rental expenses and were further submitted with a summary after the Hearing. Such post-Hearing submissions will not be accepted into the case file as there was ample opportunity to present these filings before the Hearing and in any event they are not relevant to the below judgment.

28. I heard the arguments of the parties and render the below judgment in this case.

Finding

29. First and foremost, the relevant Letter of Intent and Franchise Agreement both fall under DIFC Courts’ jurisdiction. Clause 12 of the Letter of Intent states “This Letter, to the extent stated to be legally binding, shall be governed by, and construed in accordance with the laws of the Dubai International Financial Center (“DIFC”), and the Parties agree to submit to the exclusive jurisdiction of the DIFC Courts.” The relevant Franchise Agreement also states in Clause 21.1 that “This Agreement shall be governed by, and construed in accordance with the laws of the Dubai International Financial Centre (“DIFC”), and the Parties agree to submit to the jurisdiction of the DIFC Courts.” Therefore, it is clear and undisputed that the DIFC Courts have jurisdiction to decide this matter and should apply DIFC Law in doing so. As the claim value is less than AED 500,000, this claim is properly before the Small Claims Tribunal of the DIFC Courts.

30. There is just one issue to be decided in this dispute: is the Defendant entitled to keep the USD $ 10,000 transferred to him by the Claimant. This issue is governed by the DIFC Contract Law, DIFC Law No. 6 of 2004 (hereafter the “DIFC Contract Law”).

31. While both parties contend that the other terminated the Franchise Agreement, it is not relevant to this dispute as to who initially terminated it. Rather, it is undisputed that the Franchise Agreement was terminated and the Claimant endeavoured to return to the Defendant all previously received payments.

32. The Defendant did not dispute that the initial return of USD $ 10,000 was likely made in error but instead contends that he can keep these funds to cover those expenses and damages incurred as a result of the Claimant terminating the agreement. The Defendant admitted at the Hearing that as of yet, he had not quantified his alleged damages nor had he otherwise brought a claim against the Defendant for damages.

33. I am of the view that the payment of USD $ 10,000 from the Claimant to the Defendant was in fact made in error and should have been returned. If the Defendant had other claims against the Claimant for damages or expenses, he should have made those in a counterclaim or separate dispute. Instead, he has retained funds without proper accounting or documentation of the expenses claimed.

34. Even if the Defendant had brought a counterclaim for expenses, like those he submitted after the Hearing, he would not likely succeed on his claim. The Franchise Agreement contains no responsibility for the Claimant to cover the Defendant’s travel, translation or rental expenses if the agreement is terminated. Any offer by the Claimant to cover expenses after termination was made out of good will and not out of contractual obligation. If the Defendant has some contractual claims for damages or breach of contract, he has not made them in this case and thus cannot be reimbursed. I make no comment as to whether such a claim would succeed as it is not relevant to the dispute before me.

35. Instead, it is quite clear that the Defendant must pay the Claimant USD $ 10,000, equivalent to AED 36,750, as reimbursement of the funds mistakenly transferred to him by the Claimant. The Defendant’s unquantified request for damages is rejected.

36. The Defendant shall also pay the Claimant AED 1,837.50 as reimbursement of the Claimant’s court fee.

Issued by:

Natasha Bakirci

SCT Judge

Date of issue: 4 October 2016

At: 10am

The post GIICHI LLC v GLENYS appeared first on DIFC Courts.

Claim No. XXXX

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

In the name of His Highness Sheikh Mohammed Bin Rashid Al Maktoum,

Ruler of Dubai

IN THE SMALL CLAIMS TRIBUNAL

BEFORE SCT JUDGE NATASHA BAKIRCI

BETWEEN

GREAR 

   Claimant

and

GREETJE RESTAURANT LLC

   Defendant

Hearing:          7 September 2016

Judgment:       11 October 2016

JUDGMENT OF SCT JUDGE NATASHA BAKIRCI

UPON this claim having been called on 23 August 2016 for a Consultation before SCT Officer Mahika Hart;

UPON the parties not having reached settlement;

UPON a Hearing having been held before me on 7 September 2016, with the Claimant and the Defendant’s representative attending;

AND UPON reading the documents submitted in the Court file and hearing the parties’ arguments at the Hearing;

IT IS HEREBY ORDERED THAT:

1.The Defendant shall pay the Claimant a final settlement of AED 12,614.95 owed by the Defendant for unpaid salary.

2. The Defendant is not entitled to make any deductions against this final settlement.

3. The Defendant shall pay the Claimant AED 12,986.02 as penalties under Article 18(2) of the DIFC Employment Law and an additional AED 164.38 per day from the issuance of this Judgment until payment is made.

4. The Defendant is required to cancel the Claimant’s visa without delay, such procedure to be completed by no later than 25 October 2016.

5. The Defendant shall reimburse the Claimant’s Court fee in the amount of AED 722.91.

THE REASONS

Parties

6. The Claimant, Grear is an Italian national who was employed as a “Waitress” by the Defendant company.

7. The Defendant, Greetje Restaurant LLC, is a restaurant facility located in the DIFC.

Background

8. The Claimant began working for the Defendant on 10 February 2016 as per the employment contract between the parties commencing on that same date. The Claimant began working as a “Waitress” for AED 5,000 per month basic salary.

9. The Claimant continued to work at the Defendant company until she submitted her resignation on 23 June 2016, for termination on 10 July 2016 effectively giving 2 weeks’ notice. The Claimant then failed to attend work on 26 June 2016 until 10 July 2016 and there is dispute between the parties as to why, or if such absence had been approved in advance.

10. The Claimant did not receive her final payment or end of service benefits and as a result filed a Claim with the DIFC Courts Small Claims Tribunal (SCT). The Defendant alleges that she never came to them to collect her payment.

11. On 11 August 2016 the Claimant filed a Claim with the SCT seeking (i) unpaid salary for the months of February until July 2016, (ii) overtime payment, and (iii) damages. The total amount of the Claim was USD $10,031.98 (equivalent to AED 36,867.53). Initially, the Claimant filed her claim against her manager at the Defendant company but she amended her claim to be against Greetje Restaurant LLC after the Consultation, without any objection from the Defendant.

12. The Defendant responded on 17 August 2016 indicating its intent to defend against all of the claim. The Parties attended a Consultation on 23 August 2016 but were unable to reach a settlement. On 7 September 2016 I heard the parties’ arguments at a Hearing.

The Claim

13. The Claimant argued in her Claim Form that she was hired with a monthly salary of AED 5,000 but did not receive this full amount for the months of February until July 2016. She specifies that for the months of February and March she only received AED 1,500 instead of the full AED 5,000 and that for April and May she only received AED 3,500 instead of the full amount. Furthermore, she maintains that she has not received any salary for the months of June and July. The Claimant also claims AED 4,204 for unpaid overtime and AED 15,000 for unspecified damages against the Defendant.

14. The Claimant included with her Claim Form her employment contract of 10 February 2016, a letter she sent to her manager on 6 June 2016 regarding Ramadan hours, and her resignation letter of 23 June 2016.

The Defence

15. The Defendant provided their defence on 17 August 2016. First, they noted that the Claimant only started work on 10 February and thus should not be paid for the whole month of February. Similarly, the Defendant also contended that as the Claimant did not come to work in July, no payment was due for that month.

16. The Defendant argued that the Claimant had signed a release to be paid a lower salary in return for accommodation provided by the Defendant. Furthermore, the Claimant allegedly signed a second release agreeing to “unconditionally release, remise from all past claims, demands and payments” on 31 May 2016. The Defendant argued that based on this release, there is no payment owed to the Claimant for the time worked before 31 May 2016.

17. For the month of June, the Defendant admitted that the Claimant had not been paid but argued that she had only worked until 25 June 2016, not for the whole month. The Defendant alleged that the Claimant had absconded from work on 26 June 2016 without prior approval. Lastly, the Defendant claimed that it is entitled to retain AED 2,870 in respect of a visa fine paid on behalf of the Claimant.

18. After deducting the amounts for the visa fine, the Defendant argued that it owes the Claimant AED 163.42 as payment for June 2016 but is not willing to pay this amount as the “company has been damaged by the employee.”

Subsequent Submissions

19. After the Consultation, the Claimant supplemented her Claim with further evidence including an alleged work schedule listing the staff hours from 19 March 2016 until 10 July 2016.

20. The Defendant also sent a subsequent submission which mainly reiterated its arguments detailed above. In support of its previous arguments, the Defendant submitted evidence reflecting that many of their other employees have signed similar releases to the two submitted as regards the Claimant. The Defendant also submitted several new employment contracts signed with staff in June 2016 in support of the argument that these employees “waive[d] any past claim.”

21. The Defendant argued that the Claimant failed to give six weeks’ notice of her resignation as required by the employment contract. Furthermore, the Defendant denies that any vacation time was approved for the Claimant for the time from 26 June 2016 onwards. The Defendant claimed that the Claimant had not earned these vacation days as she had not worked for the company long enough.

22. With regard to the overtime claim, the Defendant argues that there was never any request from the Defendant for overtime work and no proof of this claim. The Defendant also denied the validity of the work schedule submitted by the Claimant but provided no alternative schedule or log of hours into the court file.

23. The Defendant alleged a further claim regarding the Claimant’s work as a “PRO” for the company. The appointed individual registered as a PRO with DIFC Government Services is an individual responsible for submitting and collecting documents for action from DIFC Government Services and other administrative work. The Defendant claimed that it appointed the Claimant as a PRO due to her language skills but that it had to hire an outside vendor to help with a transfer of shares because the Claimant was acting as the PRO but “was on strike.”\

24. The Defendant denied any claim for damages, maintaining that any such allegations were groundless.

Hearing

25. At the Hearing, the parties elaborated on their positions.

A. The Claimant’s Arguments

26. The Claimant contended that she had not been paid fully for Ramadan. She asserted that she had been approved vacation time from 26 June 2016 for 5 days but when she came back from holiday she was told she would not be paid so she did not come back to work and instead filed a claim with the SCT. She claimed that as she was within her probation period she was only required to give 7 days’ notice of resignation. While she did not claim vacation time in her Claim Form, she reiterated that she just wants to receive what is rightfully owed to her.

27. The Claimant also mentioned her desire to claim penalties against the Defendant as per Article 18 of the DIFC Employment Law.

28. As for the deductions she had allegedly agreed to by signature, she argued that such deductions were not provided for in her contract and that she understood them to be more of a receipt rather than an agreement to reduced salary. Furthermore, there is a language barrier and some uncertainty between the parties as to what exactly the releases mean.

29. Additionally, the Claimant argued that she wants her visa cancelled and that she was told by the manager that she would not have to pay any fines and therefore should not be responsible for them.

30. As regards the Defendant’s allegation that the Claimant failed to provide sufficient service as an appointed PRO and thus caused the Defendant to incur expenses when administering the transfer of company shares, she argued that any expense incurred by the company was justified as she was hired as a waitress and was not required to provide the services of a PRO.

31. Lastly, she argues that she did not want to accept the company’s provided accommodation and would have rather been paid the full salary.

B. The Defendant’s Arguments

32. The Defendant asserted that the Claimant was to be paid her full salary for Ramadan but that payment for June had not yet been made. Furthermore, the Defendant argued that the Claimant did not work any overtime or any additional hours during Ramadan.

33. The Defendant admitted that their initial employment contract was not as robust as it should have been and highlighted their new contract, although the Claimant had not signed one of these new contracts.

34. The Defendant reiterated that up until 31 May 2016, the Claimant had acknowledged being paid in full by signing a release. When asked to detail how much the Claimant was paid for February and March, the Defendant was not able to confirm the amounts and instead claimed that they did not know where the Claimant’s calculation came from. Although discussed several times during the Hearing, it was never made clear exactly how much the Claimant was paid in February and March, the Defendant just reiterated that the Claimant had claimed too much for February by failing to account for her start date of 10 February 2016.

35. While the Defendant agrees that June payment is owed, they reiterate their right to deduct visa charges, although the Defendant admits that nothing was signed saying that the Claimant would cover the visa charges.

36. The Defendant alleges that the Claimant was free to opt-out of the company accommodation but failed to do so. The Defendant also mentioned that no probation period was applicable to the Claimant but also that she had not accrued any vacation time.

37. Finally, the Defendant made an argument that the Claimant “declar[ed] all dues paid” in the DIFC Government Services Portal as she had access to the portal due to her appointment as the company’s PRO. The Claimant denied this and argued that her visa remains valid and therefore has not been cancelled with “all dues paid.”

Discussion

38. The DIFC Courts and the Small Claims Tribunal have jurisdiction over this case as it concerns employment within the DIFC and the amount in question is less than AED 500,000.

39. This dispute is governed by the DIFC Law No. 4 of 2005, as amended by DIFC Law No. 3 of 2012 (the DIFC Employment Law) in conjunction with the relevant employment contract and any related amendments.

40. The Claimant seeks salary payments for February until July of 2016, overtime payments, unspecified damages and Article 18 penalties. The Defendant alleges deduction of visa fines and expenses for PRO services that the Claimant failed to provide. The Defendant further argues that the Claimant had released any past overdue payments as of 31 May 2016. Lastly, the Defendant alleges that the Claimant failed to give adequate notice of resignation, did not work in July, absconded from work on 26 June 2016 and has over claimed for the month of February.

41. I will address each of the claimed items to determine the final amount owed to the Claimant, responding to the Defendant’s arguments in turn.

C. Outstanding Pay and Allowances

42. The Claimant alleged underpayment for February and March 2016 in the amount of AED 3,500 per month and underpayment for April and May in the amount of AED 1,500 per month.

43. The Defendant alleged that the Claimant signed two releases which preclude her from claiming these amounts. First, the Defendant submitted a release from 30 April 2016 stating that “I, the undersigned Grear hereby declare that I received my balance salary for the month of April with total amount 4000, subsequently they have been deducted from the salary 500 for the apartment bills. Thanks, Grear.” Second, the Defendant submitted a release dated 31 May 2016 which states “I, the undersigned Grear hereby declare that I received my balance salary for the month of May with total amount 4000, subsequently they have been deducted from the salary 525 for the apartment bills. Thanks, The Parties agree to unconditionally release, remise from all past claims, demands and payments Grear.”

44. The Claimant does not deny that she signed these releases, but alleged that they were not meant as acceptance of a lower salary but instead acceptance of accommodation and bills. The employment contract signed between the parties, which neither party contests, lists the Claimant’s salary as AED 5,000 per month with no mention of accommodation or apartment bills. The contract states that “the Company reserves the right, with appropriate consultation with you, to change your base.”

45. Article 19 of the DIFC Employment Law states that “An employer shall not deduct from an employee’s wages or accept payment from an employee, unless:

(a) The deduction or payment is required or authorised under a statutory provision or the employee’s contract of employment;

(b) The employee has previously agreed in writing to the deduction or payment . . .”

46. While the contract of employment reserves the Defendant’s right to change the Claimant’s salary “with appropriate consultation,” this provision in the employment contract is not sufficient to satisfy Article 19(a) for an authorised deduction under the terms of the employment contract.

47. Additionally, while the Defendant relies on the release signed by the Claimant on 31 May 2016 stating that “The Parties agree to unconditionally release, remise from all past claims, demands and payments” such agreement was made on 31 May 2016 and thus was not “previously agreed in writing” as required by Article 19(b) of the DIFC Employment Law. I make no comment as to whether the release clause, had it been signed previous to the deductions, would be sufficient to satisfy Article 19(b).

48. Therefore, as the Defendant has not met the qualifications of Article 19 of the DIFC Employment Law for making deductions against the Claimant’s pay, her salary as per the employment contract stands for the months of February until May 2016. The Defendant submitted no evidence to contradict the specific amounts claimed by the Claimant for these months and did not allege that she was paid any more than she claimed she received. When asked to clarify the amount paid for February and March, the Defendant’s representative did not give a clear answer and instead stated that he did not know where the calculation came from.

49. In fact, reliance on the release signed by the Claimant on 31 May 2016 provides support for the Claimant’s contention that she was not paid a full AED 5,000 for these months of work. Notwithstanding, the Claimant only began work on 10 February 2016 and her claim must be adjusted to account for the first 9 days of February.

50. As regards payment for June 2016, the parties are in agreement that the Claimant worked from 1 June to 25 June but has not yet been paid. As for payment for July 2016, the Claimant acknowledges that she did not work in July. Therefore, she is not owed any salary for this time. Thus, I find that the Claimant is owed the following amounts:

D. Notice Period and Vacation Time

51. The Claimant did not make any claims as to the notice period, although she did make a claim for payment from 26 June until 10 July 2016. The Defendant responded stating that the Claimant failed to serve her required notice period and instead absconded from work.

52. It has been confirmed by both parties that the Claimant submitted her resignation on 23 June 2016 with an expected termination date of 10 July 2016. It is further agreed that the Claimant’s last day of work was 25 June 2016 after which time she did not work. The reason for this is contested, with the Claimant alleging that she was approved 5 days of vacation and then did not return to work upon the former manager telling her she would not be paid while the Defendant alleges that the Claimant absconded as of 26 June 2016.

53. The employment contract states that the Claimant is “obliged to give the Company 6 weeks’ notice to terminate your contract of employment.” While the Claimant made some objection that she was within a probation period, there is no evidence of a probation period with shorter notice period in the case file. However, although 6 weeks was required as per the contract, the Claimant’s resignation letter of 23 June 2016 with a termination date listed as 10 July 2016 was accepted by the Defendant as per the company stamp and the Defendant has not submitted any evidence that they objected to the Claimant’s proposed termination date.

54. As per Article 59(3) of the DIFC Employment Law, parties are free to agree to notice periods and may waive such notice periods or accept payment in lieu of notice. The Defendant effectively accepted the Claimant’s shortened notice period as per the Claimant’s resignation letter.

55. As for the Defendant’s claim that the Claimant absconded from work as of 26 June 2016, the Defendant did not report the Claimant as absconding or submit any evidence of this. As it is unclear whether the Claimant was approved for vacation time or whether the Claimant absconded from work, I find it appropriate that the Claimant shall not be paid for any time beyond 26 June 2016 but that the Defendant shall not be entitled to any damage for the Claimant’s failure to serve the required notice period.

56. Furthermore, as the Claimant has not made a claim for her unused vacation time in her Claim Form and did not articulate a claim for such amounts at the Hearing, I will not address payment in lieu of vacation time accrued in this judgment.

E. Overtime, Damages and Article 18

57. The Claimant claimed AED 4,204 for overtime worked but did not provide a breakdown for this calculation. The Claimant also provided a work log of time worked from 19 March 2016 through 10 July 2016 although the Defendant contends that this log is inaccurate.

58. Upon review of the log, it is not clear that the Claimant worked overtime in the amount of AED 4,204 or overtime at all. Upon review of the Claimant’s log, the Claimant, identified as “Laura” in the log, is not listed as working more than 54 hours in any given week. As the log does not account for breaks, it is not clear that the Claimant worked more than the maximum weekly working time of 48 hours in any 7-day period, as defined in Article 21 of the DIFC Employment Law. Therefore, the Claimant’s request for overtime payment is rejected.

59. In the Claim Form, the Claimant also claims AED 15,000 in unspecified damages. At the Hearing, the Claimant further clarified that she intended to claim for penalties under Article 18 of the DIFC Employment Law, which provides as follows:

“(1) An employer shall pay all wages and any other amount owing to an employee within fourteen (14) days after the employer or employee terminates the employment.

(2) If an employer fails to pay wages or any other amount owing to an employee in accordance with Article 18(1), the employer shall pay the employee a penalty equivalent to the last daily wage for each day the employer is in arrears.”

60. The Defendant admits in its submissions that at the very least, they owed the Claimant AED 163 for work done in June and they contend they are not willing to pay it as a result of damages incurred as a result of the Claimant’s actions. However the Defendant has made no counterclaim. The Defendant also alleged that the Claimant never came to pick up her entitlements and thus there was “no chance to pay” her. Instead, the Defendant argued, the Claimant filed a case without collecting her payment.

61. The Defendant has not shown any proof of their attempts to pay the Claimant what she was owed within 14 days of her termination. Under the DIFC Employment Law, it is the Defendant’s responsibility to show they have made the effort to pay the amounts owed within 14 days, otherwise the penalty may accrue.

62. Therefore, in accordance with the DIFC Courts precedent set by the judgment of Justice Roger Giles in Asif Hakim Adil v Frontline Development Partners Limited (CFI-015-2014, 3 April 2016) and the judgment of H.E. Justice Ali Al Madhani in Pierre-Eric Daniel Bernard Lys v Elseco Limited (CFI-012-2014, 14 July 2016), the Claimant is entitled to Article 18 penalties running from 14 days after her official date of termination until the date payment is made. While these two judgments are currently being appealed, the law of the DIFC Courts remains as stated therein. For the purposes of Article 18, the Claimant’s date of termination shall be 10 July 2016, as agreed between the parties, although both parties acknowledged that the Claimant’s last day of work was 25 June 2016.

63. Therefore, the penalty begins to run from 25 July 2016 in the amount of AED 164.38 per day ((AED 5,000 x 12) / 365 calendar days). Thus, as of the date of this Judgment, the penalty owed is 79 days from and including 25 July 2016 until 11 October 2016, totaling AED 12,986.02 with the daily penalty of AED 164.38 continuing to run starting 12 October 2016 until the day of payment.

F. Deductions against Final Settlement

64. The Defendant has sought to make two deductions against the Claimant’s final settlement for visa penalties (AED 2,870) and costs connected with hiring a vendor to perform PRO services (AED 3,365).

65. As mentioned above, deductions made against salary or entitlements must follow the provisions of Article 19 of the DIFC Employment Law. In summary, Article 19 states that employers shall not deduct anything from employee’s wages unless such deduction is authorised by law, the employee agreed to the deduction in advance in writing, the deduction is for overpayment or the deduction has been ordered by the Court.

66. Upon careful review of the case file, none of the above provisions of Article 19 apply to the two deductions claimed by the Defendant. Therefore, the deductions attempted to be applied by the Defendant in their submission against the Claimant’s final settlement are rejected as unsubstantiated.

G. Cancellation of Visa

67. The Claimant sought cancellation of her visa as she no longer worked for the Defendant and would like to obtain other employment. The Defendant has lodged no objection to cancelling the visa but has been reluctant to pursue cancellation until the claim between the parties is resolved.

68. As there is nothing to prevent visa cancellation while a claim is pending in the DIFC Courts, in fact the DIFC Government Services Office provides mechanisms to cancel visas in exactly such circumstances, there is no reason to delay this process.

69. Therefore, the parties are directed to cooperate to provide for the Claimant’s visa cancellation at the earliest possibility and certainly no later than 14 days from the issuance of this Judgment.

Findings

70. The Claimant is entitled to a final settlement of AED 12,614.95 owed by the Defendant for unpaid salary.

71. The Defendant is not entitled to make any deductions against this final settlement.

72. The Defendant is required to pay the Claimant AED 12,986.02 as penalties under Article 18(2) of the DIFC Employment Law and an additional AED 164.38 per day from the issuance of this Judgment until payment is made.

73. The Defendant is required to cancel the Claimant’s visa without delay, such procedure to be completed no later than 25 October 2016.

74. Finally, the Defendant is required to pay the Claimant’s Court fee in the amount of AED 722.91.

Issued by:

Natasha Bakirci

SCT Judge

Date of issue: 11 October 2016

At: 4 pm

The post Grear v Greetj Restaurant LLC appeared first on DIFC Courts.

Please note that this Memorandum covers DIFC Courts and the Dispute Resolution Authority (DRA) 

This Memorandum of Understanding (“MoU”) is made on the [ 20 ] day of September 2016 (the “Effective Date”).

Between:

The Jebel Ali Free Zone Authority, a free zone authority duly incorporated by virtue of Law No. 1 of 1985, issued in the Emirate of Dubai, with an office at Ground Floor, Jafza Building No. 15, Jebel Ali Free Zone, Dubai, United Arab Emirates (“JAFZA”); and

Dispute Resolution Authority, a free zone authority within the Dubai International Financial Centre (“DIFC”) duly incorporated by virtue of Law No. 9 of 2004 (as amended by Law No.7 of 2014), issued in the Emirate of Dubai, whose registered office is at, P.O Box 211724, Dubai International Financial Centre, Dubai, United Arab Emirates (“DRA”).

each a “Party” and together the “Parties”.

Recitals

A.   As the leading business hub of the Middle East, JAFZA focuses on long term customer relationships. It fosters alliances with global investors by providing them world class infrastructure supported with quality driven value added services and incentives, enabling them to capitalize on huge business opportunities in the region, in the most efficient way. JAFZA aspires to be the international business hub of the Middle East. JAFZA is today one of the strongest brands in the region and stands for excellence, innovation and the power of partnership. It is the first free zone in the world to win ISO certification in 1996.

B.  DRA is a platform for delivering legal excellence in the Middle East and the gateway to a suite of services available to businesses operating in both within and outside the DIFC. The divisions of the DRA work in partnership to provide businesses with unparalleled choice in relation to the resolution of their commercial disputes, the development of legal talent and to the protection of individuals investing or residing in Dubai. Together and in co-operation, the divisions of the DRA are supporting the Dubai Plan 2021 and UAE Vision 2021. The DRA administers justice and legal excellence within DIFC. Established in 2014, it is the third body of the DIFC, alongside the DIFC Authority and the Dubai Financial Services Authority. The DRA itself, currently incorporates four divisions: the DIFC Courts – Dubai’s established English-language and independent commercial common law judicial system (“DIFC Courts”); the Dubai Arbitration Institute; the DIFC Wills and Probate Registry (“WPR”); and the Academy of Law (“Academy”). The flexible structure of the DRA means new divisions and initiatives can be seamlessly incorporated over time.

C. The Parties are financially and administratively independent and neither is a subsidiary or affiliate of the other.

D.   JAFZA and DRA agree to cooperate on the basis of this MoU in order to plan and agree a collaboration in respect of the development of a bi-lateral relationship between JAFZA and DRA (the “Project”).

C.  The purpose of this MoU is to establish a clear understanding between JAFZA and DRA to work together in order to achieve and deliver:

i.   professional services and excellence through a strategic partnership which defines the responsibilities and obligations the Parties;

ii.   to ensure each side allocates appropriate resources to achieve the objectives of the Project;

iii.  professional standards and value for services rendered, in order to fulfill the Dubai Plan 2021 and the UAE Vision 2021; and

iv.  reliable and timely support from each Party on any issues which fall within the scope of this MoU.

F. The Parties agree that the Project is mutually beneficial and will develop and strengthen relations between the Parties. The Parties are entering into this MoU for the purposes of fulfilling this joint purpose.

NOW IT IS THEREFORE AGREEED AS FOLLOWS:

1.   Integration

1.1 The preamble and clauses of this MoU shall form an integral part of this MoU.

2. Term

2.1 The Parties are entering into this MoU for a period of three (3) years from the Effective Date, unless terminated earlier pursuant to Clause 6 (“Term”).

2.2  The Parties may at any time agree to extend the Term for any period agreed in writing by the Parties.

3. Co-operation of the Parties

3.1  DRA agrees to provide assistance and support to JAFZA and its member companies to fulfill the purposes of this MoU.  

3.2   JAFZA agrees to provide assistance and support to DRA and its entities to fulfill the purposes of this MoU. 

4. Joint Initiatives                

4.1  Remedies and Enforcement 

4.1.1 JAFZA and DRA agree to co-operate in the development of initiatives to permit JAFZA, its subsidiaries and its member companies (as well as individuals living, working and/or investing in the Jebel Ali Free Zone) to utilise the DRA and its divisions, such as the DIFC Courts, thereby mutually benefiting the Parties.

4.1.2 Without limiting Clause 4.1.1, JAFZA and DRA agree to co-operate in relation to:

4.1.2.1 the provision of access, for JAFZA and its member companies (as well as individuals living, working and/or investing in the Jebel Ali Free Zone to the Small Claims Tribunal (“SCT”) of the DIFC Courts;        

4.1.2.2 greater co-operation between the respective dispute resolution and mediation services provided by JAFZA and DRA;

4.1.2.3 allowing JAFZA and its member companies to freely elect to use and promote the use of DIFC laws;

4.1.2.4 promoting the services of the DRA, including the use of DIFC Courts as a jurisdiction for dispute resolution; and

4.1.2.5 promoting the use by JAFZA and its member companies of the DIFC-LCIA as an arbitration centre.

4.2  Other Initiatives

The Parties agree to work together to explore initiatives:

4.2.1 to allow JAFZA member companies access to all DRA knowledge building or knowledge series seminars, discussions, workshops, events and products, whether through the Academy or otherwise. This may include the JAFZA organizing and hosting regular awareness sessions, lectures and other knowledge series events in the Jebel Ali Free Zone about services offered by the DRA;

4.2.2  towards the creation and adoption of bespoke employment law dispute resolution provisions for JAFZA and its member companies. This may include the provision of office space to the SCT from which the SCT can provide services to businesses operating within and individuals working within the Jebel Ali Free Zone;

4.2.3 to promote the use by individuals associated with JAFZA and its member companies of the WPR. This may include the provision by JAFZA of office space from which the WPR can register the wills of those individuals connected with JAFZA and its member companies;

4.2.4  to develop an international outreach programme to promote the services offered by the Parties to investors and other commercial entities, both domestic and foreign, in furtherance of the objectives of the Dubai Plan 2021 and UAE Vision 2021;

4.2.5 that are focused on the development of innovative solutions to support the shared objectives of the Parties including the use of Smart Technology and best practices in Business and Customer Service Excellence in order to streamline the shared delivery of services envisaged by this MoU. This may include the development of a joint mobile application, allowing for JAFZA, its member companies and their staff (as well as those living in the Jebel Ali Free Zone) to obtain the range of services offered by the Parties, through one Smart gateway; and

4.2.6 to promote awareness and use of the Academy’s pro-bono service by JAFZA member companies and to explore whether the advice rendered by that service might extend to the laws, rules and regulations applicable in the Jebel Ali Free Zone.

6. Confidentiality

5.1 In this MoU “Confidential Information” means all confidential information (however recorded or preserved) disclosed by a Party or its employees, officers, representatives or advisers (together its “Representatives”) to the other Party and that Party’s Representatives whether before or after the date of this MoU.

5.2 The Parties agree that the contents of this MoU and any Confidential Information received during the Term shall remain strictly confidential to the Parties, save that both Parties may place a copy of the signed memorandum on their respective websites.

5.3 Subject to Clause ‎5.4, neither Party shall make, or permit any person to make, any public announcement, communication or circular (“Announcement”) concerning this Agreement without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed). The Parties shall consult together on the timing, contents and manner of release of any Announcement.

5.4 Where an Announcement is required by law or any governmental or regulatory authority (including, without limitation, any relevant securities exchange), or by any court or other authority of competent jurisdiction, the Party required to make the Announcement shall promptly notify the other Party. The Party concerned shall make all reasonable attempts to agree the contents of the Announcement before making it.

6. Termination and Consequences of Termination

6.1  Either Party may terminate this MoU at any time after giving 30 days’ prior written notice to the other Party.

6.2  On termination of this MoU, each Party shall:

6.2.1 return to a disclosing Party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other Party’s Confidential Information;

6.2.2  erase any Party’s Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically practicable); and certify in writing to the other Party that it has complied with the requirements of this Clause ‎6, provided that a recipient Party may retain documents and materials containing, reflecting, incorporating or based on the other Party’s Confidential Information to the extent required by law. The provisions of this  Clause ‎6 shall continue to apply to any such documents and materials retained by a recipient Party.

6.3 The provisions of this Clause 6 shall survive for a period of two (2) years from the date of termination or expiry of this MoU.

7. No Assignment

7.1  Neither Party may assign or transfer all or any part of their respective rights and obligations under this MoU, nor delegate their performance under this MoU without the prior written approval of the other Party.

8. Notices

8.1 Any notice to be given by one Party to another, pursuant to this MoU, shall be in writing and addressed to the other Party at that address as set out at the head of this MoU.

8.2  For the purposes of this Clause, a notice shall be deemed valid if delivered by:

8.2.1 hand whereupon receipt will be deemed upon delivery;

8.2.2  by courier whereupon receipt will be deemed upon the signing of the airway bill by the addressee; and

8.2.3 by email or scanned and sent by email, when confirmation of the email transmission has been recorded by the sender’s email client (subject to a print out of the scan being able to show a legible scanned document).

9. Entire Agreement and Variation

9.1  This MoU constitutes the entire agreement between the Parties and supersedes all communications, negotiations, arrangements and agreements, whether oral or written, between the Parties with respect to the subject matter of this MoU.

9.2   The Parties hereby declare that they are authorised to enter into this MoU and have the proper authority, corporate approval, regulatory approvals and licenses from the competent federal and local authorities to participate in the Project.

 9.3 This MoU may be varied or amended subject to terms mutually agreed in writing by the Parties.

9.4  Save for Clauses 5, 6, 7, 8, 9 and 10, this MoU is not intended to be legally binding, and no legal obligations or legal rights shall arise between the Parties from this MoU.

9.5  Nothing in this MoU is intended to, or shall be deemed to, establish any partnership or joint venture between the Parties, constitute any Party as the agent of another Party, nor authorise any of the Parties to make or enter into any commitments for or on behalf of another Party.

9.6 If any provision of this MoU is wholly or partially void, invalid or ineffective, this circumstance does not affect the validity and effectiveness of the remaining provisions. The void, invalid, ineffective provision will be replaced by that valid and effective provision that is deemed to most closely fulfil the purpose of the original.

10. Applicable Law

10.1 This MoU shall be governed by the laws of the Dubai International Financial Centre.  

This MoU has been hereby agreed and signed between the Parties:

The post Memorandum of Understanding between the DRA and JAFZA appeared first on DIFC Courts.

Please note that this Press release covers the DIFC Courts and the Dispute Resolution Authority (DRA) 

DIFC English language courts available to Jafza companies to settle disputes

• Jafza and member companies can opt for DRA’s suite of dispute resolution services,  including DIFC Courts’ Small Claims Tribunal
• Positioning Dubai as the region’s business hub in line with the Dubai 2021 plan

Dubai, United Arab Emirates, October 10, 2016: Jebel Ali Free Zone (Jafza), the UAE’s flagship trade and logistics hub for the Middle East region and Africa, has signed a Memorandum of Understanding (MoU) with the Dispute Resolution Authority (DRA) giving its member companies and people living, working and investing in the Free Zone access to a suite of dispute resolution services, including the Small Claims Tribunal of the DIFC Courts.

Jafza and the DRA, an authority within the Dubai International Financial Centre (DIFC), will work together to develop initiatives to encourage greater cooperation between dispute resolution and mediation services provided by the two authorities. It will also promote the services of DRA, including the use of DIFC Courts, one of the world’s leading English language commercial courts. The agreement will provide Jafza member companies with a more efficient means of resolving disputes.

The MOU was signed at DRA’s DIFC headquarters by Sultan Ahmed bin Sulayem, Group Chairman and CEO of DP World and Chairman of Ports, Customs and Free Zone Corporation and Dr. Michael Hwang SC, Head of the DRA.

Mr. Bin Sulayem said Jafza was committed to providing new, value-added services to companies and individuals based in the Free Zone to support their operations and administration.

Mr. Bin Sulayem, said: “Under the leadership of Dubai and in line with the Dubai 2021 plan, we are positioning the Emirate as the business centre of the region. This MoU is a critical element in fulfilling one of the Government’s objectives for an efficient, fair and impartial commercial legal system. It will build confidence among multinationals that our laws and regulations will safeguard their rights, boosting their confidence in the trade and investment environment of Dubai.”

Mr. Bin Sulayem added, “Given the enormous volume of trade that passes through Jafza every year, it makes sense for us to forge close ties with the region’s leading English language commercial court. While we always strive to settle contract disputes amicably, it gives us confidence to know that we can easily turn to the DIFC Courts or the DIFC-LCIA Arbitration Centre should the need ever arise.”

Commending the agreement, Dr. Michael Hwang said, “Jafza has always been a very forward-thinking organisation and I congratulate them on their work to support companies seeking commercial settlements. The complex nature of business in the free zone means {delete}means contract disputes or legal issues will inevitably arise from time to time, so it is important that companies know the available options. As a proven English language common law jurisdiction in Dubai, the DIFC Courts offer fast and efficient resolution for any Jafza-based companies that find themselves involved in a dispute.”

He continued: “As a major international free zone, Jafza contains companies familiar with different legal systems and languages. The ability to opt into the English language DIFC Courts is an added attraction for companies based in Jafza, or for those planning to open operations in the free zone.”

The agreement will also provide Jafza and its member companies access to DRA’s knowledge series seminars, workshops and events through the DIFC Academy of Law. Jafza will also be able to host regular awareness sessions and a lecture series that will be conducted by the DRA.

Other features of the agreement include the development of innovative solutions and use of smart technology such as joint mobile applications to streamline delivery of services

The post Jafza and DIFC Courts make life easier for business appeared first on DIFC Courts.

Claim No. XXXX

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

In the name of His Highness Sheikh Mohammed Bin Rashid Al Maktoum,

Ruler of Dubai

IN THE SMALL CLAIMS TRIBUNAL

BEFORE SCT JUDGE MARIAM DEEN

BETWEEN

GIDEON

Claimant

and

GRIAME LLC

                                     Defendant

Hearing:          6 October 2016

Judgment:       10 October 2016

JUDGMENT OF SCT JUDGE MARIAM DEEN

UPON the Claim Form being filed on 3 August 2016;

UPON a Jurisdiction Hearing having been held before SCT Judge Natasha Bakirci on 15 August 2016, with the Claimant and the Defendant’s representative in attendance;

UPON an Order being issued by SCT Judge Bakirci on 7 September 2016 finding the Small Claims Tribunal of the DIFC Courts to have jurisdiction to hear the dispute;

UPON the parties being called on 21 September 2016 for a Consultation with SCT Officer Ayesha Bin Kalban and the parties not having reached settlement;

UPON a Hearing having been held before SCT Judge Mariam Deen on 6 October 2016, with the Claimant and the Defendant’s representative in attendance;

AND UPON reviewing the documents and evidence submitted in the Court file;

IT IS HEREBY ORDERED THAT:

1.The Defendant shall pay the Claimant a final settlement of AED 13,808.20 owed by the Defendant for unpaid salary.

2. The Defendant shall pay the Claimant AED 44,383.50 as a penalty pursuant to Article 18(2) of DIFC Employment Law and an additional AED 493.15 per day from the date of this Judgment, until payment is made.

3. The Defendant shall cancel the Claimant’s visa without delay, such procedure to be completed no later than 24 October 2016.

4. The Defendant shall reimburse the Claimant’s Court fee in the amount of AED 799.90.

5. The Claimant shall return to the Defendant all office equipment retained by him no later than 24 October 2016.

THE REASONS

Parties

6. The Claimant is Gideon (the “Claimant”), an individual filing a claim against the Defendant regarding his alleged employment.

7. The Defendant is Griame LLC (the “Defendant”), a DIFC registered company.

Background

8. The underlying dispute arises over the alleged employment of the Claimant by the Defendant and subsequent termination of the Claimant’s employment by the Defendant.

9. On 3 August 2016, the Claimant filed a claim in the DIFC Courts’ Small Claims Tribunal (the “SCT”) for payment of certain employment entitlements. The Claimant claimed a total of USD $11,100.66 against the Defendant.

10. The Defendant responded to the claim on 9 August 2016 by contesting the jurisdiction of the DIFC Courts and the SCT over the dispute.

11. Following a Jurisdiction Hearing on 15 August 2016 an Order was issued by SCT Judge Natasha Bakirci on 7 September 2016 finding the Small Claims Tribunal of the DIFC Courts to have jurisdiction to adjudicate the case.

12. The parties met for a Consultation with SCT Officer Ayesha Bin Kalban on 21 September 2016 but were unable to reach a settlement.

13. On 6 October 2016 I heard submissions from the Claimant and the Defendant’s authorised representative, following which the case was reserved for judgment. Both parties were provided the opportunity to submit further documentation based on the arguments made at the Hearing. The Claimant submitted additional evidence on 9 October 2016, relating to salary payments received by him to date.

The Claim

14. The Claimant’s case is that he was employed by the Defendant on 13 March 2016 and it was the CEO who offered him the job, albeit a who signed the employment contract. At the Hearing the Claimant Clarified that he had worked with both Mr Bondel and Mr Kerr but was in no doubt that the former was his ‘boss’ and the latter he understood to be the office manager.

15. The Claimant also stated that he received his initial salary payment on 3 April from Mr Kerr following some confusion about how he would be paid but two subsequent payments came directly from the Defendant on 3 and 31 May 2016.

16. The Claimant submits that Mr Kerr was authorised to sign the employment contract on Mr Bondel’s behalf and produces a Board Resolution dated 11 January 2016 as evidence of this; it states that:

“In future, any momentous document that require signature from C.E.O of company Can be signed by Mr. Kerr  & Perry.”

17. The Claimant also asserts that in addition to the employment contract being in the Defendant’s name, his employment visa is also in the Defendant’s name and Mr Bondel would have been responsible for or at least aware of this. A copy of the DIFC employment visa and DIFC customer portal, listing Mr Terry’s current email address under ‘correspondence details’ for the Claimant’s new employment visa package, as evidence that the Defendant’s CEO was involved in the visa application.

The Defence

18. The Defendant submits that the Claimant was not employed by him and the Employment Agreement is invalid as it was signed by Mr Kerr who was not authorised by the Defendant to employ anyone on its behalf. In the hearing it was claimed that the employment contract itself was not complete or valid in any event, as the Claimant had not signed it; the Claimant responded by confirming that it had been electronically signed by him.

19. The Defendant submits that Mr Kerr and his company were the Claimant’s true employer and its relationship with was governed by a Service Provider Agreement dated 1 February 2016. In the hearing the Defendant explained that it understood the Claimant to be working for it as a consultant, via. Evidence in the form of a Service Contract and emails were produced demonstrating that another company, Point 2 company was responsible for obtaining the Claimant’s visa under the instruction of Mr Singh. The Defendant denied having any knowledge of the Claimant’s employment contract or visa until recently.

20. In relation to the Board resolution produced by the Claimant as evidence of Mr Kerr authority to sign on behalf of the Defendant, the Defendant highlights that the Board Resolution was addressed to Emirates Financial Towers and was specific to tenancy matters only and that 2 signatories were required in place of Mr Perry’s, not one.

21. In answer to the alleged salary payments made by the Defendant to the Claimant, it was acknowledged that there had been a direct payment from the Defendant to the Claimant in May 2016 but the Defendant claimed that this was in fact a loan from the Defendant to Mr Perry/ SAMIand not a payment of wages.

Discussion

22. This dispute is governed by DIFC Law No. 4 of 2005, as amended by DIFC Law No. 3 of 2012 (the DIFC Employment Law) in conjunction with the Employment Agreement, in so far as it is found to be valid.

23. The Claimant confirmed in the Hearing that he was seeking payment from the Defendant of unpaid salary for the days he worked in June 2016. In order to determine whether the Defendant is liable to pay any unpaid salary to the Claimant it must first be established that the Defendant was in fact the Claimant’s employer.

The Employer

24. At Clause 1.1 of the Employment Agreement, the Claimant is clearly identified as an employee of the Defendant and I am satisfied that it has been signed by Mr Kerr and the Claimant electronically. The question, therefore, is whether Mr Kerrhad the requisite authority to sign the Employment Agreement on the Defendant’s behalf.

25. Following the approach taken by the Court of First Instance in Ginette PJSC v Geary Middle East FZE & Geary Limited (7 April 2016), although the Defendant claims that Mr Kerrdid not have express authority to enter into the Employment Agreement on its behalf, he can be found to have ‘apparent authority’ under DIFC law if the Court is satisfied that the conduct of the Defendant, reasonably interpreted, caused the Claimant to believe that the Defendant consented to having the Employment Agreement signed by Rout, purporting to act for the Defendant.

26. The Doctrine of Apparent Authority (the “Doctrine”) is set out in Articles 130 and 131 of DIFC Contract Law, No. 6 of 2004:

“130. Apparent authority

Apparent authority is the power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other, arising from and in accordance with the other’s conduct towards such third persons.

131. Creation of apparent authority

Except for the conduct of transactions required by statute to be authorised in a particular way, apparent authority to do an act is created as to a third person by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.”

27. It appears that Mr Kerrclearly held himself out as having the requisite authority to sign the Employment Agreement as he signed using the title ‘Head of the Middle East Currency Matters’. In addition to Mr Kerrbeing present at the Claimant’s interview, he is also named at Clause 1.6 of the Employment Agreement as the Claimant’s “Supervisor”. Furthermore, although I accept the Defendant’s submission that the Board Resolution was specific to location of the documents, it demonstrates that Mr Kerrhas been authorised to sign agreements on behalf of the Defendant in the past (albeit as a co-signatory). In light of the above, it would not have been far-fetched for the Claimant to have believed, in the circumstances, that Mr Kerrhad the requisite authority to sign the Employment Agreement on the Defendant’s behalf. Conversely, the Claimant had no reason not to believe that Rout had authority to sign.

28. Moreover, the Claimant’s employment visa was made in the Defendant’s name and even if I was to accept the Defendant’s assertion that it was not responsible for applying for the Claimant’s visa, the DIFC customer portal confirms that Mr Bondel’s correct contact email address was registered and he would have been properly notified upon the issuance of visas. Therefore, if the Defendant had truly objected to the Claimant’s visa being made in its name there would have or should have been some protest at the time it became known, even if it were unaware initially.

29. I am satisfied that Mr Kerrhad ‘apparent authority’ under the Doctrine, even if actual authority was lacking. There may be no evidence of Mr Kerrbeing expressly authorised to sign the Employment Agreement, however this is obviously distinct from any evidence being furnished proving he was definitely not authorised to sign on behalf of the Defendant.

30. The Claimant provided screenshots of text messages from Bank to support his assertion that he received one salary payment of AED 7,782 from SAMIand two subsequent payments on 3 and 31 May in the sum of AED 15,000 from the Defendant. Although this evidence does not establish who the payer for each amount was, the Defendant concedes that one of the May payments was made by it, therefore I can determine that at least one salary payment was made directly from the Defendant to the Claimant. However, there is some disagreement about the nature of this payment as the Defendant contends that it was in fact a loan made to SAMI. I do not find the salary arrangements between the Claimant, Defendant and SAMI/ Mr Kerrto be clear or persuasive with respect to the identity of the true employer.

31. The Claimant brings this case and the burden of proving it rests with him, however, further to producing an employment contract and visa in the Defendant’s name and in the absence of any evidence proving he was not the Defendant’s employee, I am not convinced there is more that is needed in order to establish an employment relationship between the parties. It follows that the Defendant is responsible for unpaid salary owing to the Claimant up to the date of termination, which I will consider below.

32. As discussed at the Hearing, if the Defendant believes Mr Kerrto have fraudulently misrepresented it and/or acted above and beyond his authorised scope this is a separate matter between the Defendant and Mr Peter/ SAMI, for which a separate legal action may be lodged with the Court. However, it would not be in the interests of justice to join a third party to the Claimant’s case and burden it with the additional delay and complexity of resolving legal issues between the Defendant and third party.

The Effective Date of Termination

33. The Claimant states he received oral notification of redundancy from Mr Bondel and Mr Kerron 28 June 2016. He submits that this did not comply with Clause 19.1 of the Employment Agreement which requires written notice of termination which he was told he would receive but never has. The Claimant accepts that he stopped attending work the following day as he understood he was being terminated along with several other employees, although he continued to do some work from his phone after this date.

34. I am satisfied that the Claimant’s non-attendance at the office following 28 June 2016 indicates his acceptance of the oral notice of termination. Pursuant to Article 13 of DIFC Contract Law, notice may be given by any means appropriate to the circumstances and although the Employment Agreement itself required it to be written, I am of the view that by not attending work following the date he received oral notification, the Claimant accepted that he had been terminated and the written contract was effectively modified by the oral agreement and conduct of the parties.

35. Pursuant to Article 59(2)(b) of DIFC Employment Law the Claimant would have been entitled to a 30-day period of notice as he was continuously employed for more than three months but less than five years. However, Article 59(3) states:

“This Article will not prevent an employer and employee from agreeing to a longer or shorter period of notice nor shall it prevent either party from waiving notice or accepting a payment in lieu of notice.”

36. Therefore, as Clause 19.1.1 of the Employment Agreement states that there shall be zero days’ notice if the period of continuous employment is less than six months, the parties have agreed that the Claimant is not entitled to any notice and no objection to this has been raised.

37. Ordinarily it would be for the employer to prove that the employee’s entitlements have been paid, however, in light of the Defendant’s denial of its employer status I rely on evidence produced by the Claimant in the form of screenshots of text messages from bank confirming the following payments:

3 April 2016 AED 7,782

3 May 2016 AED 15,000

31 May 2016 AED 15,000

38. The Claimant confirmed in the hearing that he is satisfied he has been paid in full for his work up to and including 31 May. As I have found the date of termination to be 28 June 2016 he is entitled to a further 28 days of salary. The Claimant’s agreed monthly wages were AED 15,000; therefore, the daily wage can be calculated as follows: (15,000 x 12) / 365 = AED 493.15. Accordingly, I find that the Claimant is owed (493.15 x 28) AED 13,808.20 for the 28 working days he has not been paid.

Article 18 of the DIFC Employment Law

39. In his amended Claim Form and at the Hearing, the Claimant confirmed that he sought the penalty under Article 18 of DIFC Employment Law to be activated, it provides:

“(1) An employer shall pay all wages and any other amount owing to an employee within fourteen (14) days after the employer or employee terminates the employment.

(2) If an employer fails to pay wages or any other amount owing to an employee in accordance with Article 18(1), the employer shall pay the employee a penalty equivalent to the last daily wage for each day the employer is in arrears.”

40. The Defendant has not shown any attempts to pay the Claimant what he was owed within 14 days of his termination. Therefore, in accordance with the DIFC Courts precedent set by the judgment of Justice Roger Giles in Asif Hakim Adil v Frontline Development Partners Limited (CFI-015-2014, 3 April 2016) and the judgment of H.E. Justice Ali Al Madhani in Pierre-Eric Daniel Bernard Lys v Elesco Limited (CFI-012-2014, 14 July 2016), the Claimant is entitled to Article 18 penalties running from 14 days after his official date of termination until the date payment is made. For the purposes of Article 18, the Claimant’s date of termination was 28 June 2016.

41. Therefore, the Defendant has been in arrears since 13 July 2016 (14 days following termination) and the penalty began to accrue at the daily rate of AED 493.15 from this date. Accordingly, as of the date of this Judgment, the penalty is owed for 90 days from 13 July 2016 through 10 October 2016, totalling AED 44,383.50 (90 x 493.15). With the daily penalty of AED 493.15 continuing to accrue until the date of payment. In my opinion there has been no undue delay in the bringing of this Claim, just over a month after the termination of the Claimant, as he explained in the Hearing that he had initially endeavored to recover his unpaid salary directly from the Defendant prior to filing his Claim with the SCT.

Conclusion

42. In light of the aforementioned, I find that the Defendant was the Claimant’s employer and the Employment Agreement to be valid and binding. The Defendant is liable to pay the Claimant’s unpaid salary and an additional penalty for every day that it has been in arrears, pursuant to Article 18 of DIFC Employment Law. The Claimant’s Court Fee is also to be reimbursed. Furthermore, the Claimant’s employment visa must be cancelled and all office equipment retained by the Claimant returned to the Defendant within 14 days.

Issued by:

Mariam Deen

SCT Judge

Date of issue: 10 October 2016

At: 4pm

The post Gideon v Griame LLC appeared first on DIFC Courts.

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

PRACTICE DIRECTION NO. 4 OF 2016 

Neutral Citation of DIFC Courts Judgments

Citation

This Practice Direction will come into effect on the date of signature. It may be cited as Practice Direction 4 of 2016 – Neutral Citation of DIFC Courts Judgments and may be abbreviated to PD 4/2016.

1.This Practice Direction shall apply as regards all judgments of the DIFC Courts, those which have already been issued as well as those which are issued subsequent to it coming into effect.

2. A form of neutral citation will be introduced for judgments issued from the Small Claims Tribunal, Court of First Instance and Court of Appeal of the DIFC Courts.

3. A unique number will be given by the DIFC Courts Registry to each approved judgment issued by the DIFC Courts. The judgments will be numbered in the following way:

Small Claims Tribunal      [2016] DIFC SCT 1,2,3 etc.

Court of First Instance       [2016] DIFC CFI 1,2,3 etc.

Court of Appeal                [2016] DIFC CA 1,2,3 etc.

4. Under these new arrangements, para 29 in Smith v Jones, the twelfth numbered judgment of the year in the DIFC Courts Court of First Instance, would be cited:

Smith v Jones [2016] DIFC CFI 12 at [29].

5. The neutral citation will be the official number attributed to the judgment by the DIFC Courts and will be used on at least one occasion:

(i) when the judgment is cited in a later judgment; and

       (ii) when the judgement is cited in submissions or other documents filed by practitioners.

6. If a judgment is cited on more than one occasion, only one abbreviation (if desired) will be used. Thus Smith v Jones [2016] DIFC CFI 12 could be abbreviated to Smith v Jones, or Smith’s case, but preferably not both in the same judgment or other document.

7. If it is desired to cite more than one paragraph of a judgment each numbered paragraph should be enclosed with a square bracket. Thus: Smith v Jones [2016] DIFC CFI 12 at [35]-[40], or Smith v Jones [2016] DIFC CFI 12 at [35], [40], and [50]-[53].

8. Once the judgment is reported, the citation from the law report series will be used and the neutral citation will appear before that citation.

9. The neutral citation arrangements for judgments may be extended to include other reasoned orders of the DIFC Courts.

10. Where a judgment issued by the DIFC Courts is redacted so as to ensure that parties’ names remain anonymous in the interests of confidentiality, in accordance with PD 3/2016, the neutral names will be used in place of the actual names of the parties within the neutral citation.

Dated this 20 day of October 2016 

Chief Justice Michael Hwang

The post Practice Direction no. 4 of 2016 Neutral Citation of DIFC Courts Judgments appeared first on DIFC Courts.

Claim No: CFI-043-2014

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

DNB BANK ASA

Claimant

and

(1) GULF EYADAH CORPORATION

(2) GULF NAVIGATION HOLDING PJSC

Defendants

 ORDER WITH REASONS OF THE DEPUTY CHIEF JUSTICE SIR DAVID STEEL

UPON reviewing the Second Defendant’s Application seeking a De Novo Review of the direction of the Assistant Registrar Natasha Bakirci dated 3 October 2016 (the “Application”)

AND UPON reviewing the Claimant’s submissions in response to the Application dated 10 October 2016

IT IS HEREBY ORDERED THAT:

1. The Application is dismissed.
2. There be no order as to costs.

Issued by:

Amna Al Owais

Deputy Registrar

Date of issue: 23 October 2016

At: 11am

The post CFI 043/2014 DNB Bank ASA v (1) Gulf Eyadah Corporation (2) Gulf Navigation Holding Pjsc appeared first on DIFC Courts.

Claim No: CFI-043-2014

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

DNB BANK ASA

Judgment Creditor

and

(1) GULF EYADAH CORPORATION

(2) GULF NAVIGATION HOLDING PJSC

Judgment Debtors

 ORDER OF THE DEPUTY REGISTRAR AMNA AL OWAIS

YOU, KHAMIS JUMA KHMIS BUAMIM, MUST OBEY THIS ORDER. IF YOU DO NOT, YOU MAY BE FINED OR COMMITTED TO PRISON FOR CONTEMPT OF COURT

UPON reviewing the Order of the Assistant Registrar Natasha Bakirci dated 8 September 2016 that Mr Khamis Juma Khmis Buamim shall attend the DIFC Courts at 10am on Tuesday 4 October 2016 (the “Examination Hearing”) to answer on oath such questions as the Court may require

AND UPON reviewing the Second Defendant’s Application notices CFI-043-2014/8 and CFI-043-2014/9 (the “Second Defendant’s Applications”)

AND UPON reviewing the direction of the Assistant Registrar Natasha Bakirci dated 3 October 2016 dismissing the Applications pursuant to RDC 45.4

AND UPON Mr Khamis Juma Khmis Buamim’s refusal to answer questions on oath at the Examination Hearing

AND UPON the Order with Reasons of the Deputy Chief Justice Sir David Steel dated 23 October 2016

IT IS HEREBY ORDERED THAT:

Mr Khamis Juma Khmis Buamim shall attend the DIFC Courts before a Judge at 10am on Wednesday, 9 November 2016. At that time, Mr Khamis Juma Khmis Buamim shall answer on oath such questions as the Court may require.

Issued by:

Amna Al Owais

Deputy Registrar

Date of issue: 23 October 2016

At: 12pm

The post CFI 043/2014 DNB Bank ASA v (1) Gulf Eyadah Corporation (2) Gulf Navigation Holding Pjsc appeared first on DIFC Courts.

Claim No. CFI 037/2015

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

WILLIAM DANIEL MILLIGAN

     Claimant

and

AL MOJIL INVESTMENT LIMITED

Defendant

CONSENT ORDER

UPON the Order of the Deputy Chief Justice dated 3 October 2016

AND UPON the parties agreeing to vary paragraphs of the Case Management Order of H.E. Justice Ali Al Madhani dated 3 August 2016 (the “CMC Order”)

IT IS HEREBY ORDERED BY CONSENT THAT:

1.The Defendant shall file and serve its Amendment Statement of Defence to the Amended Particulars of Claim by no later than 4pm on Wednesday, 26 October 2016.

2.The Claimant shall file the Amended Reply to the Defendant’s Amended Defence by no later than 4pm on Sunday, 6 November 2016.

3. Paragraphs 13,14 and 16 of the CMC Order are varied, so that signed statements of

4. of fact and hearsay notices are to filed and served by the parties by no later than 4pm on Sunday, 20 November 2016.

5. Witness Statements in reply are to be filed and served by 4pm on Thursday, 1 December 2016.

6. The parties are to file and serve a Progress Monitoring Information Sheet by 4pm on Monday, 5 December 2016.

7. The trial of this matter is to take place at 2pm on Tuesday, 13 December 2016 and Wednesday, 14 December 2016, and the Court will reserve Thursday, 15 December 2016 in the event a third day is required for the hearing.

Issued by:

Amna Al Owais

Deputy Registrar

Date of Issue: 24 October 2016
At: 4pm

The post CFI 037/2015 William Daniel Milligan v Al Mojil Investment Limited appeared first on DIFC Courts.

Claim No: CFI 022/2015

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

(1) HISHAM AKRAM MOHAMED SAYED AHMED

(2) MOHAMED AKRAM MOHAMED SAYED AHMED EID

(3) SAMIA SAAD ELSHAZLY

(4) TAREK MOHAMED MEDHAT ABDELHADY ABDELRAHMAN

                                                                                          Claimants

and

(1) ALADDIN HASSOUNA SABA

(2) MOHAMED HAZEM BARAKAT (ALSO KNOWN AS HAZEM BARAKAT)

(3) WAEL MOHAMED SAYED EL MAHGARY

Defendants

  ORDER OF DEPUTY REGISTRAR AMNA AL OWAIS

UPON reviewing the Claimants’ Application Notice CFI-022-2015/6 dated 23 October 2016 (the “Extension Application”) seeking a one-week extension to file evidence in reply to the Defendant’s Application Notice CFI-022-2015/4 (the “Strike Out Application”) dated 25 September 2016 seeking a strike out of the Particulars of Claim

AND UPON reviewing First and Second Defendants’ response to the Application dated 24 October 2016

IT IS HEREBY ORDERED THAT:

1. The Extension Application is granted.
2. The Claimants shall file and serve evidence in answer to the Strike Out Application by no later than 4pm on Wednesday 2 November 2016.
3. Costs of the Extension Application shall be costs in the case.

Issued by:

Amna Al Owais

Deputy Registrar

Date of issue: 25 October 2016

At: 2pm

The post CFI 022/2015 (1) Hisham Akram Mohamed Sayed Ahmed (2) Mohamed Akram Mohamed Sayed Ahmed Eid (3) Samia Saad Elshazly (4) Tarek Mohamed Medhat Abdelhady Abdelrahman v (1) Aladdin Hassouna Saba (2) Mohamed Hazem Barakat (also known as Hazem Barakat) (3) Wael Mohamed Sayed El Mahgary appeared first on DIFC Courts.

The Memorandum of Understanding (MoU) on Judicial Cooperation between the Shanghai High People’s Court and DIFC Courts.

What you need to know:

Who signed the agreement?
The agreement is between DIFC Courts and Shanghai High People’s Court, and has been reviewed and approved by the Supreme People’s Court.

When and where was it signed?
The MoU was signed on 26th October, 2016, one day before Dubai Week in China, at a closed ceremony at the Shanghai High People’s Court.

Why is the MoU significant?
The agreement is a first: the first time that the Shanghai High People’s Court has signed a cooperation agreement with a foreign court. The agreement therefore represents a milestone supporting the “One Belt and Road” initiative.

What is the cooperation agreement about?
The agreement strengthens bilateral collaboration between the two courts, paving the way for the judiciaries to work together more closely as commercial courts. Increased cooperation will in practice lead to increased certainty for businesses using Shanghai and DIFC Courts.

What is the commercial importance of the agreement?
Shanghai High People’s Court has jurisdiction over one of the country’s most dynamic commercial hubs. In 2015, Shanghai’s total GDP reached approximately Rm 2530 bn.

When did work on the agreement start?
DIFC Courts visited Shanghai High People’s Court, Shanghai No. 1 Intermediate People’s Court and Shanghai Free Trade Zone Court in 2015.

DIFC Courts Chief Justice Michael Hwang (left), and Shanghai High People’s Court Vice-President Sheng Yongqiang

The post Judicial Cooperation between the Shanghai High People’s Court and DIFC Courts; What you Need to Know appeared first on DIFC Courts.

Claim No. CFI 016/2015

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

(1) MOHAMMAD ABU ALHAJ

(2) ABU ALHAJ HOLDING

Claimants

and

(1) SHEIK SULTAN KHALIFA SULTAN AL NEHAYAN IN HIS CAPACITY AS DIRECTOR OF GOLD HOLDING LTD

(2) SHEIK SULTAN KHALIFA SULTAN AL NEHAYAN

Defendants

ORDER OF H.E. JUSTICE SHAMLAN AL SAWALEHI

UPON reviewing the Defendant’s Request to Produce dated 6 October 2016, seeking production of documents in the Claimant’s possession, custody or control

AND UPON the Claimant having failed to respond to the Defendant’s request to produce by 13 October 2013 as set out in paragraph 5 of the Case Management Order dated 31 August 2016

IT IS HEREBY ORDERED THAT the Defendant’s requests are granted.

Issued by:

Amna Al Owais

Deputy Registrar

Date of Issue: 26 October 2015

At: 12pm

The post CFI 016/2015 (1) Mohammad Abu AlHaj (2) Abu AlHaj Holding v (1) Sheik Sultan Khalifa Sultan Al Nehayan in his Capacity as Director of Gold Holding Ltd (2) Sheik Sultan Khalifa Sultan Al Nehayan appeared first on DIFC Courts.

迪拜国际金融中心法院

与中国法院民商事判决相互承认与执行的指南

DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

GUIDE ON

MUTUAL RECOGNITION AND ENFORCEMENT OF CIVIL AND COMMERCIAL JUDGMENTS WITH THE PRC COURTS

引言

Introduction

1. 中华人民共和国（下称“中国”）和阿拉伯联合酋长国（下称“阿联酋”）两国政府于2004年4月21日签署了《关于民事和商事司法协助的协定》（下称“《司法协助协定》”），对两国之间民事和商事司法协助事项进行了规定，其中包括相互承认与执行法院裁判文书的相关规定。

In 2004 the People’s Republic of China (the “PRC”) and the United Arab Emirates (the “UAE”) entered into the Agreement on Judicial Assistance in Civil and Commercial Matters (the “Agreement”), pursuant to which either Party’s judgments in civil and commercial matters may be enforced in the other Party’s courts.

2. 为了方便相关当事人依据《司法协助协定》在对方国申请执行具有金钱给付内容的法院裁判文书，迪拜国际金融中心法院（下称“DIFC法院”）发布本指南，旨在为当事人提供实务操作方面的指引。

The Dubai International Financial Centre (the “DIFC”) Courts issue this Guide on the mutual enforcement of monetary judgments issued by the courts in the PRC and the UAE, in order to provide practical guidance for parties that seek recognition and enforcement of monetary judgement under the Agreement.

3. 鉴于本指南中涉及中国法律的相关内容，DIFC法院邀请中国的金杜律师事务所参与草拟本指南中涉及中国相关法律的部分。本指南的中文版亦由金杜律师事务进行翻译并最后审定。[i]

As this Guide involves PRC laws, the DIFC Courts have instructed King & Wood Mallesons to draft the parts that involve PRC law. The Chinese version of the Guide is translated and finalised by King & Wood Mallesons.

4. 本指南不具有法律约束力，不构成条约或法律，也不约束各方法官，更不取代任何现行的法律、司法决定和法院规则。本指南也并不意图穷尽所有相关内容，创设或改变任何现存的法律权利或关系。本指南并未由任何中国法院参与审阅和制定。

This Guide has no legally binding effect. It does not constitute a treaty or legislation, is not binding on the judges of either Party and does not supersede any existing laws, judicial decisions or court rules. It is not intended to be exhaustive and is not intended to create or alter any existing legal rights or relations. It is not reviewed, commented nor endorsed by any PRC courts.

迪拜国际金融中心法院（DIFC法院）

DIFC Courts

5. DIFC法院是阿联酋司法系统的组成部分。本指南仅适用于DIFC法院。DIFC法院对与迪拜国际金融中心有关的或者案件当事人同意交由该法院管辖的民商事案件享有专属管辖权。

The DIFC Courts form part of the legal system of the UAE. This Guide only applies to the DIFC Courts. The Guide pertains to civil and commercial disputes which are connected to the Dubai International Financial Centre or where the parties have agreed that the DIFC Courts should have exclusive jurisdiction.

6. DIFC法院由小额诉讼法庭、一审法院和上诉法院组成。它们是根据迪拜2004年第9号和12号法律设立的普通法法院，采用最高国际标准的法律程序。法官从迪拜和世界其他普通法法域中选择，均享有极高的国际声誉，其中有三名阿联酋法官能同等运用大陆法和普通法。

The DIFC Courts consist of the Small Claims Tribunal, the Court of First Instance and the Court of Appeal. They were established by Dubai Laws No. 9 and 12 of 2004 and operate as a common law court which applies legal procedures of the highest international standards. The Courts’ internationally renowned judiciary is selected from common law jurisdictions around the world and includes three Emirati judges equally conversant in civil and common law.

法律适用

Application of the Laws

7. 根据《司法协助协定》第十七条规定，中国法院（本指南所指中国法院，仅指中国大陆地区的法院，不包括香港、澳门、台湾地区的法院）和DIFC法院应依据各自的本国法律来承认和执行另一方法院作出的判决。

In accordance with Article 17 of the Agreement, PRC courts (not including the courts in Hong Kong, Macau and Taiwan) and DIFC Courts shall mutually recognise and enforce judgments pursuant to their respective national laws.

8. 向中国法院申请承认和执行DIFC法院裁判文书的主要法律依据包括但不限于：《司法协助协定》、《中华人民共和国民事诉讼法》（2012年8月31日第二次修订，简称“《民事诉讼法》”）、《最高人民法院关于适用<民事诉讼法>的解释》（2015年2月4日起施行，简称“《民事诉讼司法解释》”）。其中，《民事诉讼法》第281条和第282条特别明确规定，外国法院的判决可以根据中华人民共和国缔结或参加的国际条约或者依据互惠原则向中国法院申请承认与执行。

The approach of the PRC courts to the enforcement of the DIFC Courts’ judgments is based on the Agreement and the Civil Procedure Law of the People’s Republic of China (2012 Second Amendment) (the “Civil Procedure Law”) and the Judicial Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China (the “Judicial Interpretation of the Civil Procedure Law”, effective from February 4, 2015). Under Articles 281 and 282 of the Civil Procedure Law，a foreign judgment can be recognised and enforced upon an application to a PRC court in accordance with international treaties and / or agreements which the PRC is a party to, or upon the principle of reciprocity.

9. DIFC法院根据普通法原则承认和执行中国法院的判决。基于普通法原则，如果一方当事人欠付另一方当事人特定金额的到期债务，拥有管辖权的外国法院可以判决该方当事人负有偿付该到期债务的法律义务。债权人可以以此为诉由在DIFC法院起诉债务人。

The approach of the DIFC Courts to the recognition and enforcement of the PRC courts’ judgments is based on common law principles. Where a foreign court with jurisdiction has determined that a sum is due from one party to another, a legal obligation arises for the debtor to pay that sum. The creditor may bring a claim against the debtor to enforce that debt.

中国法院执行DIFC法院裁判文书的要求

The Requirements for Enforcement of the DIFC Courts’ Judgments in PRC Courts

10. 除非存在《司法协助协定》第二十一条所规定的有限的情形，否则对于DIFC法院的判决，中国法院应予以承认和执行，该些情形包括：

The DIFC Courts’ judgment shall be recognised and enforced by the PRC Courts unless it falls within the limited grounds provided in Article 21 of the Agreement. These grounds are:

• 判决不是终局判决或不具有可执行性；

The judgment is not final and conclusive or is unenforceable;

• 判决由不具有管辖权的法院作出；

The judgment has been issued by a court with no competent jurisdiction;

• 判决支持的请求违反了中国宪法原则、主权、国家安全或公共政策；

The judgment supports a claim that is in violation of the constitutional laws and principles, sovereignty, national security or public policy of the PRC;

• 判决违反了中国有关无行为能力人代理权的法律规定；

The judgment violates PRC laws on litigation representative(s) of person(s) lacking in legal capacity.

• 在缺席判决的情况下，缺席一方未按迪拜国际金融中心的法律获正当传唤；

The judgment issued is a judgment in default where the absent party was not duly summoned in accordance with DIFC laws;

• 当承认与执行DIFC法院判决的申请被提到中国法院时，如果有管辖权的中国法院正在审理相同当事人之间的相同诉讼标的的案件，而且该案件在中国法院提起的时间先于在DIFC法院提起的时间；或者中国法院已经承认了第三国就相同当事人之间的同一诉讼标的案件所作出的终局司法裁判文书。

Where the application for the recognition and enforcement of a DIFC judgment is made when a PRC court with competent jurisdiction is still in the process of hearing a matter that involves the same parties and the same subject matter that was commenced at the PRC court earlier in time before it was commenced at the DIFC Courts; or when a PRC court has recognized a third-party country’s final judgement on a matter involving the same parties and the same subject matter.

11. 关于前述第10条第（b）款的情形，根据《司法协助协定》第十八条，如果不动产所在地理位置位于DIFC法院司法管辖区域内，DIFC法院应被视为享有与该不动产有关的纠纷的管辖权。

In respect of paragraph 10 (b) above, the DIFC Courts are deemed to have jurisdiction to adjudicate disputes relating to immovable property if the immovable property is located within the geographical area under the jurisdiction of the DIFC Courts, pursuant to Article 18 of the Agreement.

12. 关于前述第10条第（b）款情形，根据《司法协助协定》第十九条，对于不动产以外的事项，DIFC法院在以下情形具有管辖权：

In respect of paragraph 10 (b) above, the DIFC Courts have jurisdiction on matters other than immovable property in the following situations pursuant to Article 19 of the Agreement:

• 提起诉讼时，被告在DIFC境内有住所或居所；

The Defendant has his domicile or residence in the territory of the DIFC at the time of the commencement of the suit; or

• 提起诉讼时，被告在DIFC境内有工商业经营场所或分支机构，或从事赢利活动，且诉讼与该等活动有关；

The Defendant, at the time of commencement of the suit, owns industrial or commercial premises or subsidiaries, or engages in commercial activities in the DIFC district, and the litigation relates to these activities.

• 根据原告和被告间明示或默示协议，引起诉讼的合同义务应当或已经在DIFC境内履行；

By an express or implied agreement between the Plaintiff and the Defendant, the contractual obligations giving rise to the litigation shall be or have been performed in the territory of the DIFC; or

• 在非合同责任中，侵权行为系在DIFC的管辖区域范围内发生；

The infringing act, which is a non-contractual tortious liability, is committed within the geographical area under the jurisdiction of the DIFC; or

• 被告已经明示或默示接受DIFC法院的管辖权。

The Defendant has expressly or impliedly accepted the jurisdiction of the DIFC Courts.

在DIFC法院执行中国法院裁判文书的要求

The Requirements for Enforcement of the PRC Courts’ Judgments in the DIFC Courts

13. DIFC法院适用与上述所列相似的规则来决定一方当事人是否可以向DIFC法院申请承认与执行中国法院作出的判决。

The DIFC Courts shall apply rules similar to the guidelines set out above to determine whether a party may apply for recognition and enforcement of a judgment issued by a PRC court.

14. 根据DIFC的冲突法规则，要承认和执行中国法院的判决，中国法院必须对相关争议事项具有管辖权。如有下列情形的，DIFC法院通常会认为中国法院具有管辖权：

In accordance with the DIFC rules on conflict of laws, for the DIFC Courts to enforce judgments made by a PRC court, the PRC court must have jurisdiction on the matter in dispute. The DIFC Courts will usually consider the PRC courts to have jurisdiction under the following situations:

• 提起诉讼时，被告在中国相关一审法院的管辖区域内有住所或居所；

At the time of the commencement of the suit, the Defendant has domicile or residence in the area under the jurisdiction of the PRC court of first instance.

• 提起诉讼时，被告在中国相关一审法院的管辖区域内有工商业经营场所或分支机构，或者从事商业活动，且诉讼与上述活动有关；

The Defendant, at the time of commencement of the suit, owns industrial or commercial premises or subsidiaries, or engages in commercial activities in the area under the jurisdiction of the PRC court of first instance, and the litigation relates to those activities; or

• 根据原告和被告间明示或默示的协议，引起诉讼的合同义务应当或已经在中国相关的一审法院的管辖区域内履行；

According to the express or implied agreement between the Plaintiff and the Defendant, the contractual obligations giving rise to the litigation shall be or have been performed in the geographical area under the jurisdiction of the PRC court of first instance; or

• 在非合同责任中，侵权行为发生在中国相关的一审法院的管辖范围内；

The infringing act, which is a non-contractual tortious liability, is committed within the geographical area under the jurisdiction of the PRC court of first instance; or

• 被告已经明示或默示接受中国相关的一审法院的管辖。

The Defendant has expressly or impliedly accepted the jurisdiction of the PRC Courts.

15. 在满足DIFC法院的上述要求的情况下，中国法院的判决不被承认与执行的理由仅限如下规定的情形：

Where the above requirements by the DIFC Courts are satisfied, a PRC court judgment will not be recognized and enforced only on the following grounds:

• 判决不是终局判决，或不具有可被执行性；

The judgment is not final and conclusive or unenforceable;

• 判决不是由有管辖权的法院作出；

The judgment has been issued by a Court with no competent jurisdiction;

• 判决所支持的诉讼请求违反了迪拜国际金融中心的现行法律，或与阿联酋的宪法原则、主权、国家安全或公共秩序相悖；

The judgment supports a claim that is in violation of any law in force in the DIFC, or the constitutional laws and principles, sovereignty, national security, or public policy of the UAE;

• 判决违反了迪拜国际金融中心关于无行为能力人代理权的法律；

The judgment violates DIFC laws on litigation representative(s) of person(s) lacking in legal capacity.

• 判决系缺席作出，而缺席方未按中国法律规定获正当传唤；

The judgment issued is a default judgment where the absent party was not duly summoned in accordance with PRC laws;

• 当承认与执行中国法院判决的申请被提到DIFC法院时，如果DIFC法院有管辖权，而且正在审理相同当事人之间的相同诉讼标的的案件，并且该案件在DIFC法院提起的时间先于在中国有管辖权的法院提起的时间；或者DIFC法院已经承认了第三国就相同当事人之间的相同诉讼标的的案件所作出的终局司法裁判文书。

Where the application for the recognition and enforcement of a PRC judgment is made to a  DIFC Court and when a DIFC Court, which has competent jurisdiction, is still in the process of hearing a matter that involves the same parties and the same subject matter that was commenced at the DIFC Court earlier in time before it was commenced at the PRC court with competent jurisdiction; or when a DIFC Court has recognised a third-party country’s final judgment on a matter involving the same parties and the same subject matter.

16. 根据《司法协助协议》第二十三条规定，DIFC法院不会审查中国法院判决认定的案件的实体问题，该等判决不会因事实或法律错误而不被承认和执行。如果相关当事人负有法律义务履行中国法院的判决，该义务就会得到DIFC法院承认，并会在DIFC法院得到执行。

According to Article 23 of the Agreement, the DIFC Courts will not examine the substantive merits of a PRC court’s judgment. The judgment will not be refused recognition and enforcement on the ground of error in a finding of fact or law. If the relevant party has legal obligations to carry out the PRC court’s judgment, such obligations will receive recognition from the DIFC Courts and will be enforceable in the DIFC Courts.

中国法院执行DIFC法院判决的程序

The Procedure for Enforcement of the DIFC Courts’ Judgments in the PRC Courts

17. 根据《司法协助协定》第二十二条规定，承认和执行裁决应当适用被请求方法律规定的程序，即在中国法院申请承认和执行DIFC法院判决，应当适用中国的相关法律规定。

According to Article 22 of the Agreement, procedures relating to recognition or enforcement of a judgment shall be subject to the laws of the Party which the judgment is enforced against. For example, the relevant PRC laws shall be applied in a procedure for recognition and enforcement of DIFC Courts’ judgments in the PRC.

18. 根据《民事诉讼司法解释》第五百四十六条规定，对DIFC法院作出的发生法律效力的终局裁判文书，需要在中国法院承认与执行的，当事人应当先向中国法院申请承认。经审查，中国法院作出裁定予以承认后，根据《民事诉讼法》等相关规定予以执行。

Pursuant to Article 546 of the Judicial Interpretation of the Civil Procedure Law, for a DIFC Court’s judgment to be legally valid for recognition and enforcement in PRC, a party must first apply to the PRC court for recognition. After reviewing the DIFC Court’s judgment, if the PRC court decides to recognize the judgment, it will be enforceable under relevant provisions of the PRC Civil Procedure Law.

19. 根据《民事诉讼司法解释》第五百四十七条以及《民事诉讼法》第二百三十九条规定，向中国法院申请承认和执行DIFC法院判决的期限是两年。该期限从DIFC法院判决规定的债务履行期间的最后一日起计算；如果判决规定分期履行的，从规定的每次履行期间届满的最后一日起计算；判决未规定债务履行期限的，从判决生效之日起计算。当事人仅申请承认而未同时申请执行的，申请执行的期间自中国法院对承认申请作出的裁定生效之日起，重新按照两年时间进行计算。

According to Article 547 of the Judicial Interpretation of the Civil Procedure Law and Article 239 of the Civil Procedure Law, the statute of limitations for applications to the PRC courts for recognition and enforcement of judgments of the DIFC Courts is two years. The limitation period will commence from the last day of performance as provided for in the judgment; if the judgment requires performance by instalments, the limitation period will commence from the last day of the un-performed instalment; if the judgment does not stipulate the date of performance, the limitation period will commence from the day the judgment becomes effective. Where a party only applies for recognition without applying for enforcement at the same time, the two year limitation period for enforcement shall be recalculated from the day when the decision issued by the PRC Courts on the recognition application comes into force.

20. 根据《民事诉讼法》第二百八十一条规定，当事人向中国法院申请承认和执行DIFC法院判决，应当向被申请人住所地或财产所在地的中国的相关中级人民法院提出。

According to Article 281 of the Civil Procedure Law, when applying to the PRC Courts for recognition and enforcement of the DIFC Court judgments, a party shall apply to the relevant Intermediate People’s Court in PRC at the Respondent’s place of residence or where the Respondent’s assets are located.

21. 根据《民事诉讼司法解释》第五百四十三条和《司法协助协定》第二十四条规定，向中国法院申请承认和执行DIFC法院判决，申请人须提交以下文件：

According to Article 543 of the Judicial Interpretation of the Civil Procedure Law and Article 24 of the Agreement, to apply to the PRC courts for recognition and enforcement of a judgment of the DIFC Courts, the applicant shall submit the following documents:

• 书面的中文申请书，并附DIFC法院作出的发生法律效力的判决及中文译本；

A written application in Chinese language, together with an original copy of the legally valid judgment issued by the DIFC Courts and a Chinese translation of the judgment;

• 由作出生效判决的法院出具的证明判决属终局和具有可执行性的证明文件，但生效判决本身已载明该判决为终局的除外；

Unless it is provided for in the judgment per se, a document issued by the court which made the legally valid judgment certifying that the judgment is final and conclusive and enforceable.

• 如果属缺席裁决，能够证明被申请执行一方已经被法院合法传唤的证明文件，包括法院传票、送达回证、公告送达的副本等；

In case of a judgment in default, documents showing that the Respondent had been duly summoned, such as, but not limited to, copies of court summons, proof of service

• 证明无诉讼行为能力的当事人已经得到适当代理的文件。

A document to establish that the party who lacks legal capacity in litigation has been duly represented.

上述所列文件需要经过当地公证机关公证并在中国驻阿联酋使领馆认证后递交中国法院。

The documents listed in paragraph above shall be notarized by a local notary and attested to by the Chinese embassy in UAE before being submitted to the PRC courts.

22. 根据《司法协助协定》第二十六条规定，承认和执行法院裁决的申请可以由当事人直接向被请求方的主管法院提出。根据《民事诉讼司法解释》第五百四十八条规定，对于当事人申请承认和执行DIFC法院作出的发生法律效力的判决，中国法院将组成合议庭进行审查。中国法院负责将申请人的申请书送达被申请人。被申请人可以陈述意见。被申请人不应诉的，中国法院可以缺席裁定。中国法院经审查作出的裁定，一经送达即发生法律效力。

According to Article 26 of the Agreement, an application for recognition and enforcement of a court judgment may be submitted directly by the Claimant to the competent court of the requested party. According to Article 548 of the Judicial Interpretation of the Civil Procedure Law, upon an application by a party to recognise and to enforce a judgment of the DIFC Courts, the PRC Courts shall form a collegiate bench to review the judgment of the DIFC Courts. The PRC courts will be responsible for serving the Claimant’s application to the Respondent. The Respondent may submit its opinions. The PRC courts can issue a decision in default if the Respondent does not respond to the application. The decision by the PRC courts will be legally valid upon service.

23. 根据《司法协助协定》第二十三条规定，中国法院不会审查DIFC法院判决认定的案件实体问题，而仅审查DIFC法院的判决是否存在《司法协助协定》第二十一条所述情形。该等情形请见前述第十五条。

According to Article 23 of the Agreement, the PRC Courts will not review the merits of the judgment which has been determined by the DIFC Courts. It will confine itself to deciding whether the situations under Article 21 of the Agreement exist. These situations have been listed in paragraph 15 above.

24. 根据《司法协助协定》第二十七条规定，被承认和执行的DIFC法院的判决与中国法院作出的判决在中国境内具有同等法律效力。

According to Article 27 of the Agreement, the DIFC Courts’ judgment which has been granted recognition or enforcement shall have the same legal effect in the territory of the PRC as judgments rendered by the PRC courts.

在DIFC法院执行中国法院判决书的程序

The Procedure for Enforcement of the PRC Courts Judgments in the DIFC Courts

25. DIFC法院执行中国法院判决书的程序与上述程序类似。

The procedure for enforcing a PRC Court judgment in the DIFC Courts is similar.

26. 向DIFC法院申请执行中国法院判决时，申请方必须向DIFC法院提交一份起诉书，起诉书需载有请求性质的简要陈述和请求支付判决债务的金额，还需附一份经证明无误的中国法院判决书的副本。

To enforce a PRC court’s judgment in the DIFC Courts, a party must furnish a Claim Application to the DIFC Courts, which shall contain the salient points of the claim and relief including the amount of the judgment debt. A certified copy of the judgment must be exhibited together with the Claim Application.

27. 中国法院作出判决后会向当事人送达加盖有中国法院公章的判决书正本。该判决书正本可作为当事人向DIFC法院起诉要求执行的依据。如果当事人需要，可向作出发生法律效力判决的法院提出申请，中国法院经审查后，出具判决书副本，加盖人民法院盖章或者出具副本复印件与判决书正本一致的证明文件。

After issuing a judgment, the PRC court will serve an original copy of the judgment sealed with the court’s seal to the parties. The judgment can be used by the parties to  bring a claim for enforcement before the DIFC Courts. If the parties so require,, the parties may apply to the court which issued the legally effective judgment to issue a copy of the judgment. Upon review, the PRC court will issue a copy of the judgment sealed with the seal of the PRC court or issue a duplicate with the corresponding documents certifying the duplicate.

28. 根据DIFC法院规则（2011年版）第52条的规定，在送达前，并不要求事先取得DIFC法院准许。但是，被申请人有权对DIFC法院的管辖权提出异议。

Under Rule 9.52 of the Rules of the DIFC Courts 2011, there is no requirement to obtain the permission of the DIFC Courts before serving proceedings. However, it remains open for the Respondent to challenge the jurisdiction of the DIFC Courts.

29. 申请文书被送达后，如果被申请人没有予以答复，根据DIFC法院规则（2011年版）第十三条规定，申请人有权获得缺席判决。

If, following service of the application documents, the Respondent does not respond to the claim, the Claimant will be entitled to obtain a judgment in default under Part 13 of the Rules of the DIFC Courts 2011.

30. 如果被申请人认可送达，申请人必须提交并送达《诉讼内容说明》，简要陈述申请所依据的事实。《诉讼内容说明》应包括上文第14段规定的中国法院享有管辖权的声明。

If the Respondent acknowledges service, the Claimant must file and serve Particulars of Claim, setting out a concise statement of the facts relied on in support of the claim. The Particulars of Claim should contain a statement that the PRC Courts had jurisdiction on the grounds set out in paragraph 14 above.

31. 大多数案件中，申请人依据DIFC法院规则（2011年版）第二十四条规定，有权要求在不经庭审的情况下通过简易程序获得判决，除非债务人能说服法院其有可能通过庭审证明上文第19段列出的情形。简易程序的申请处理速度快，且不需要提供证人的口头证供。

In most cases, the Claimant will be entitled to apply to obtain a judgment by summary procedure without trial under Part 24 of the Rules of the DIFC Courts 2011, unless the debtor can satisfy the Court that it has a real prospect of establishing at trial one of the grounds set out in paragraph 19 above. Applications for summary judgment are dealt with swiftly and do not require oral testimony from witnesses.

32. 在中国法院获得胜诉判决的债权人，DIFC法院将判决其享有与中国法院的判决相同的权益，据此该判决的债权人将有权通过DIFC法院的程序要求强制执行，DIFC法院可以出具：

If the claim before the PRC Court is successful, the judgment creditor will then have the same rights and benefits as a judgment rendered by the DIFC Courts. The judgment creditor will be entitled, if necessary, to enforce performance according to the procedural rules of the DIFC Courts, including the issuance of:

• 第三方债务令，要求对判决债务人有负债的第三人向判决债权人支付债务；

Third party debt orders, which require third parties who are indebted to the judgment debtor to pay the sum owed to the judgment creditor;

• 财产扣押令，以判决债权人为受益人，在判决债务人财产上设定扣押；

Charging orders, which impose charges over the judgment debtor’s property in favour of the judgment creditor;

• 占有土地的命令;

Orders for possession of land;

• 出售判决债权人享有扣押利益的土地或其他财产的命令；

Orders for sale of land or other property over which the judgment creditor has the benefit of a charge;

• 要求判决债务人提供其财产信息的命令；

Orders requiring judgment debtors to provide information about their assets;

• 指定执行官扣押并出售判决债务人所拥有物品的命令；

Orders appointing enforcement officers to seize and to sell the judgment debtor’s goods;

• 指定财产管理人的命令；

Orders appointing receivers;

• 以藐视法庭为由的羁押令；

Orders for committal for contempt of court;

• 与破产程序相关的命令。

Orders relating to insolvency procedures.

联系法院

33. 关于中国法院的信息可以通过以下途径获得：

Further information about the PRC Courts can be obtained:

• 访问中国法院网站，地址为http://www.chinacourt.org/index.shtml

By visiting the website of the PRC Courts at http://www.chinacourt.org/index.shtml

34. 关于DIFC法院的信息可以通过以下途径获得：

Further information about the DIFC Courts can be obtained below:

• 访问迪拜国际金融中心法院的网站，地址为：http://www.difccourts.ae/;

By visiting the website of the DIFC Courts at http://www.difccourts.ae/ ;

• 联系迪拜国际金融中心法院的登记处：

1. 阿联酋迪拜，盖特区，4号楼1层，邮箱211724；
2. 电话：+971 4 427 3333；或

• 电子邮件registry@difccourts.ae

1. at Ground Floor, Building 4, The Gate District, PO Box 211724, Dubai, UAE;
2. By telephone on +971 4 427 3333; or

• by email at registry@difccourts.ae

迪拜国际金融中心法院首席大法官黄锡义博士

Dr. Michael Hwang, SC

Chief Justice of the DIFC Courts

北京市金杜律师事务所主席邵子力律师

Mr. Shao Zili

Co-Chairman of King & Wood Mallesons China Management Committee

Annex

附件

1. 《中华人民共和国和阿拉伯联合酋长国关于民事和商事司法协助的协定》（2004年）相关规定

Agreement between The People’s Republic of China and the United Arab Emirates on Judicial Assistance in Civil and Commercial Matters

十七条

• 双方应当根据本国法律，承认和执行另一方法院作出的民事、商事和身份判决，以及刑事附带民事判决。
• 本协定所称判决，不论其名称为何，系指双方的主管法院在司法程序中作出的任何决定。
• 本协定不适用于保全措施或临时措施，但与支付生活费有关的事项除外。

Article 17

1. Each of the Parties shall, in accordance with its laws, recognize and/or execute decrees passed by the Courts of the other Party in civil, commercial and personal matters and by criminal courts in civil matters.
2. The term “Decree” as used in this Agreement, whatever its designation, means any decision rendered in judicial proceedings by a competent Court of the Parties.
3. This Agreement shall not apply to interim or provisional measures, except matters relating to allowance.

第十八条

不动产所在地法院有权确定与该不动产有关的权利。

Article 18

The Courts of the Contracting Party where immovable property is situated shall be competent to determine the rights connected with such property.

第十九条

对于不动产以外的诉讼，一方的法院在下列情形下具有管辖权：

（一）提起诉讼时，被告在其境内有住所或居所；

（二）提起诉讼时，被告在其境内有工商业经营场所或分支机构，或从事赢利活动，且诉讼与上述活动有关；

（三）根据原告和被告间明示或默示的协议，引起诉讼的合同义务应当或已经在该方境内履行；

（四）在非合同责任中，侵权行为系在该方境内发生；

（五）被告已经明示或默示接受该方法院的管辖权；

（六）如果一方法院根据本协定对主要争议有管辖权，则其对采取临时措施的申请也具有管辖权。

Article 19

In matters other than immovable property, the Courts of a Party shall have jurisdiction in the following cases:

1. If the defendant has his domicile or residence in the territory of that Party at the time of institution of the suit;
2. Or the defendant has at the time of institution of the suit, a place or a branch of commercial or industrial nature or works for gain in the territory of that Party, and the suit relates to such activity;
3. Or by an express or implied agreement between the plaintiff and the defendant, the contractual obligation giving rise to the litigation are or have to be performed in the territory of that Party;
4. Or in case of non-contractual liability the infringing act is committed in the territory of that Party;
5. The defendant has accepted explicitly or implicitly the jurisdiction of the Court;
6. Or any application for provisional measures, if the Courts of such Party are deemed competent to hear the principal dispute, by virtue of the provisions of this Agreement.

第二十条

被请求承认和执行判决的一方法院根据本协定审查另一方法院的管辖权时，应当受判决中说明的据以确立管辖权的事实的约束，除非判决系缺席作出。

Article 20

Subject to the provisions of this Agreement, the Court of the Contracting Party requested to recognize or execute a decree shall, when examining the grounds of jurisdiction exercised by the Courts of the other Contracting Party, be bound by the facts stated in that decree and on which jurisdiction is based, unless the said decree had been passed in absentia.

第二十一条

如遇下列情形之一，判决不应被承认和执行：

（一）判决不是终局性的，或不具有执行力；

（二）判决不是由有管辖权的法院作出；

（三）判决所支持的诉讼请求违反被请求方现行法律，或与被请求方的宪法原则、主权、安全或公共秩序相悖；

（四）违反了被请求方关于无行为能力人代理权的法律规定；

（五）判决系缺席作出，而缺席方未按其本国法律规定获正当传唤；

（六）被请求方法院正在审理相同当事方之间的同一标的诉讼，该诉讼在被请求方法院提起的时间先于其在作出判决的法院提起的时间，且被请求方法院有权审理并做出决定；或被请求方法院已承认了第三国就相同当事人之间的同一标的的诉讼作出的终局判决。

Article 21

A decree shall not be recognized or executed in the following cases:

1. If it is not conclusive and executable;
2. Or it has not been pronounced by a Court of competent jurisdiction;
3. Or it sustains a claim founded on a breach of any law in force, or is contrary to the constitutional rules, sovereignty, security or the principles of public order in the Requested Party;
4. Or it contravenes the rules concerning the legal representation of persons suffering from lack of capacity in the Requested Party;
5. Or it is passed in absentia and the defaulting party was not duly summoned in accordance with the rules applicable in his country;
6. Or the dispute in which the decree was passed is pending in a suit before one the courts in the Party, between the same parties and involving the same cause of action, and that suit was raised before one of the courts of the latter Party, at a date prior to the raising of that dispute in the Court of the Party which passed the decree, and provided that the court before which the suit was raised, is competent to hear and decide upon it. Or if the decree was rendered by a court of third State, between the same parties and on the same subject matter, has been recognized by the requested Party.

第二十二条

承认和执行判决应当适用被

请求方法律规定的程序。

Article 22

Procedures relating to recognition or execution of a decree shall be subject to the laws of the Requested Party.

第二十三条

一、被请求方承认和执行判决的主管司法机关应当仅限于确认判决符合本协定规定的条件，不得审查案件的实质问题。

二、如果本国法律有此项要求，被请求方主管司法机关在执行判决时，应当采取必要措施，按照与在其本国境内作出的判决相同的方式公告判决。

三、如果判决可予部分执行，可以就判决的全部或部分内容作出执行的裁定。

Article 23

1. The competent judicial authority in the Requested Party to recognize or execute a decree shall, without reviewing the merits of the case, confine itself to ascertaining the compliance of the decree with the conditions provided for in this Agreement.
2. The competent judicial authority in the Requested Party shall, if so required by its laws, in executing the decree, take the necessary action to notify it, in the same manner as it would have done had it been passed in its own territory.
3. The decisions for execution may be made for the whole or part of the decree, if the execution of such part of the decree is severable.

第二十四条

承认和执行判决的请求应当附有下列文件：

（一）判决的正式副本；

（二）证明判决属终局和具有执行力的文件，除非判决本身已说明此点；

（三）如果属缺席判决，能够证明败诉方被合法传唤的经证明无误的传票副本或其他文件；

（四）证明无诉讼行为能力的当事人已经得到适当代理的文件。

Article 24

The request of recognition or execution of a decree shall be accompanied by the following:

1. An official copy of the decree;
2. Certificates showing that the decree is final and executable, unless that is provided for in the decree itself;
3. In case of a decree in absentia, an authenticated copy of the summons or any other document showing that the defendant was duly summoned;
4. A document to establish that the party who lacks legal capacity in litigation has been duly represented.

第二十五条

一、一方法院根据本国法律就当事人之间的有关争议制作的调解书，在其内容不违反另一方的现行法律、宪法原则、主权、安全或公共秩序的前提下，应当在另一方境内予以承认和执行。

二、请求承认和执行调解书的当事人应当提交调解书的正式副本，以及由法院出具的证明调解书的履行状况的文件。

Article 25

1. The settlement of a claim which is reached between the parties and approved by a competent court of either Party according to its national law shall be recognized and enforced in the territory of the other Party, after ascertaining that it does not contain any provisions contravening any law in force, or the constitutional rules, sovereignty, security or the public order in the Requested Party;
2. The party requesting recognition or execution of a settlement must submit an official copy and a certificate from the court stating the extent, to which the settlement has been satisfied.

第二十六条

承认和执行法院判决和调解书的申请，可以由当事人直接向被请求方的主管法院提出。

Article 26

Application for recognition and enforcement of court decrees and settlements may be submitted directly by the party to the case to the competent court of the Requested Party.

第二十七条

被承认和执行的判决在被请求方境内应当与被请求方法院作出的判决具有相同效力。

Article 27

The court decrees which have been granted recognition or enforcement shall have the same effect as those rendered by the courts of the Requested Party in the territory of that Party.

2. 《中华人民共和国民事诉讼法》（2012）相关规定

Civil Procedure Law of the People’s Republic of China

第一百四十四条

被告经传票传唤，无正当理由拒不到庭的，或者未经法庭许可中途退庭的，可以缺席判决。

Article 144

Where the Defendant refuses to be present in court upon being served a summons and without a proper reason, or leaves the courtroom halfway without the consent of the court, the judgment in default may be made.

第二百三十九条   

申请执行的期间为二年。申请执行时效的中止、中断，适用法律有关诉讼时效中止、中断的规定。

前款规定的期间，从法律文书规定履行期间的最后一日起计算；法律文书规定分期履行的，从规定的每次履行期间的最后一日起计算；法律文书未规定履行期间的，从法律文书生效之日起计算。

Article 239

The timeframe for application for enforcement shall be two years. The provisions of the applicable laws on suspension and termination of limitation of action shall apply to suspension and termination of limitation period for application for enforcement.

The period stipulated in the preceding paragraph shall commence from the last day of the performance period stipulated in the legal document; where the legal document stipulates performance in phases, the period shall commence from the last day of each stipulated performance period; where the legal document does not stipulate the performance period, the period shall commence from the effective date of the legal document.

第二百八十一条

外国法院作出的发生法律效力的判决、裁定，需要中华人民共和国人民法院承认和执行的，可以由当事人直接向中华人民共和国有管辖权的中级人民法院申请承认和执行，也可以由外国法院依照该国与中华人民共和国缔结或者参加的国际条约的规定，或者按照互惠原则，请求人民法院承认和执行。

Article 281

Where a judgment or ruling made by a foreign court which has come into legal effect requires ratification and enforcement by a People’s Court of the People’s Republic of China, the parties concerned may submit an application directly to an intermediate People’s Court of the People’s Republic of China which has jurisdiction for ratification and enforcement, or the foreign court may, pursuant to the provisions of the international treaty concluded or participated by the country and the People’s Republic of China or in accordance with the principle of reciprocity, request for ratification and enforcement by the People’s Court.

第二百八十二条

人民法院对申请或者请求承认和执行的外国法院作出的发生法律效力的判决、裁定，依照中华人民共和国缔结或者参加的国际条约，或者按照互惠原则进行审查后，认为不违反中华人民共和国法律的基本原则或者国家主权、安全、社会公共利益的，裁定承认其效力，需要执行的，发出执行令，依照本法的有关规定执行。违反中华人民共和国法律的基本原则或者国家主权、安全、社会公共利益的，不予承认和执行。

Article 282

For a judgment or ruling made by a foreign court which has come into legal effect for which ratification and enforcement is applied or requested, where a People’s Court concludes, upon examination pursuant to the international treaty concluded or participated by the People’s Republic of China or in accordance with the principle of reciprocity, that the basic principle of the laws of the People’s Republic of China or the sovereignty, security or public interest of the State is not violated, the People’s Court shall rule on ratification of the validity; where there is a need for enforcement, an enforcement order shall be issued and enforced pursuant to the relevant provisions of this Law. Where the People’s Court deemed that the basic principle of the laws of the People’s Republic of China or the sovereignty, security or public interest of the State is violated, the judgment or ruling made by the foreign court shall not be ratified and enforced.

3. 最高人民法院关于适用《中华人民共和国民事诉讼法》的解释

Interpretations of the Supreme People’s Court on Application of the “Civil Procedural Law of the People’s Republic of China

第五百四十三条   

申请人向人民法院申请承认和执行外国法院作出的发生法律效力的判决、裁定，应当提交申请书，并附外国法院作出的发生法律效力的判决、裁定正本或者经证明无误的副本以及中文译本。外国法院判决、裁定为缺席判决、裁定的，申请人应当同时提交该外国法院已经合法传唤的证明文件，但判决、裁定已经对此予以明确说明的除外。

中华人民共和国缔结或者参加的国际条约对提交文件有规定的，按照规定办理。

Article 543   

A petitioner applying to a People’s Court for acknowledgement and enforcement of a judgment or ruling of a foreign court, which has come into legal effect, shall submit a petition form, and attach the original copy of the judgment or ruling of the foreign court which has come into legal effect, or a certified error-free duplicate copy and Chinese translation thereof. Where the judgment or ruling of a foreign court is made in the absence of a litigant, the applicant shall also submit proof document that the foreign court has issued legitimate summon, except where the judgment or ruling has specifically stated so.

Where an international convention concluded or participated by the People’s Republic of China stipulates on the documents to be submitted, such provisions shall prevail.

第五百四十六条   

对外国法院作出的发生法律效力的判决、裁定或者外国仲裁裁决，需要中华人民共和国法院执行的，当事人应当先向人民法院申请承认。人民法院经审查，裁定承认后，再根据民事诉讼法第三编的规定予以执行。

当事人仅申请承认而未同时申请执行的，人民法院仅对应否承认进行审查并作出裁定。

Article 546   

Where a judgment or ruling of a foreign court which has come into legal effect or a foreign arbitral award requires enforcement by a court in the People’s Republic of China, the litigants shall first apply to a People’s Court for acknowledgement. Upon examination, where the People’s Court rules on acknowledgement, the judgment or ruling or arbitral award shall be enforced pursuant to the provisions of Part 3 of the Civil Procedural Law.

Where a litigant applies for acknowledgement without simultaneously applying for enforcement, the People’s Court shall only conduct examination on whether to acknowledge and make a ruling thereto.

第五百四十七条   

当事人申请承认和执行外国法院作出的发生法律效力的判决、裁定或者外国仲裁裁决的期间，适用民事诉讼法第二百三十九条的规定。

当事人仅申请承认而未同时申请执行的，申请执行的期间自人民法院对承认申请作出的裁定生效之日起重新计算。

Article 547   

The provisions of Article 239 of the Civil Procedural Law shall apply to the period for a litigant’s petition for acknowledgement and enforcement of a judgment or ruling of a foreign court which has come into legal effect or a foreign arbitral award.

Where a litigant applies for acknowledgement without simultaneously applying for enforcement, the period for petition for enforcement shall be re-computed with effect from the date on which the ruling of acknowledgement come into legal effect.

4.《中华人民共和国宪法修正案》（1988）相关规定

Amendments to the PRC Constitution

第二条

宪法第十条第四款“任何组织或者个人不得侵占、买卖、出租或者以其他形式非法转让土地。”修改为：“任何组织或个人不得侵占、买卖或者以其他形式非法转让土地。土地的使用权可以依照法律的规定转让。”

Article 2

The fourth paragraph of Article 10 of the Constitution, which reads, “No organization or individual may appropriate, buy, sell or lease land or otherwise engage in the transfer of land by unlawful means”, is revised to read, “No organization or individual may appropriate, buy, sell or otherwise engage in the transfer of land by unlawful means. The right to the use of land may be transferred according to law.”

[i] Founded in 1993, King & Wood Mallesons (“KWM”) is one of the global law firm headquartered in the Asia Pacific region. As a top 10 global firm by lawyer numbers and the only firm in the world able to practice PRC, Australian, Hong Kong, English, US and a significant range of European laws, KWM is providing clients with deep legal and commercial expertise, business acumen and real cultural understanding on the ground where they need it most. KWM’s dispute resolution team is highly regarded in China and abroad, and has participated in numerous litigation and arbitration cases of great significance at home and overseas.

金杜律师事务所成立于1993年，是一家总部位于亚太地区的全球性律师事务所。作为律师总人数跻身全球前十位的律师事务所，以及一家在中国、澳大利亚、香港、英国、美国及欧洲的重要区域均拥有执业能力的律师事务所，金杜正在为客户提供他们迫切需要的极具深度的商业和法律专业知识、分享商业智慧和对本土文化的深刻理解。金杜争议解决团队在中国乃至国际争议解决领域享有极高的声誉，代理了众多在国内外具有重大影响的诉讼和仲裁案件。

The post DIFC Courts Guide on Mutual Recognition and Enforcement of Civil and Commercial Judgement with the PRC Courts appeared first on DIFC Courts.

DIFC Courts backgrounder/MoU 

The post DIFC Courts and Shanghai High People’s Court MoU Backgrounder appeared first on DIFC Courts.

DIFC Courts backgrounder/enforcement guide

The post Mutual Recognition and Enforcement Guide Backgrounder appeared first on DIFC Courts.

Press Release 

UAE-China trade ties deepen with landmark judicial cooperation agreement

• DIFC Courts and Shanghai High People’s Court to work together to achieve shared objectives
• DIFC Courts separately publish guide to recognition and enforcement of money judgments, produced in partnership with law firm King & Wood Mallesons

 Shanghai, China; 27 October 2016: Trade ties between the UAE and China received a significant boost today with the signing of a landmark cooperation agreement between two of the countries’ key commercial courts.

The Shanghai High People’s Court, the foremost business court in the commercial and financial centre of mainland China, and the DIFC Courts have agreed to work together to achieve shared strategic objectives, provide the basis for future judicial exchanges, and deliver legal excellence.

The DIFC Courts are the first foreign commercial court to cooperate closely with the Shanghai High People’s Court, with the agreement designed to reinforce commercial links between the two cities by bringing certainty to businesses through enabling them to trade securely.

Annual trade between the UAE and China is estimated to be worth in excess of $55 billion annually, while more than 4,200 Chinese companies are currently operating in the UAE. The DIFC has particularly close links to China and is home to four of its biggest banks.

The agreement was signed by the respective heads of the two courts, Chief Justice Michael Hwang and Vice President Sheng Yongqiang, ahead of Dubai Week in China.

Chief Justice Michael Hwang said: “Given the strength of trade ties between the UAE and China, we have made forging links with our counterparts in the world’s second largest economy a strategic priority in recent years, particularly given Dubai’s position as an important node for China’s ‘One Belt One Road’ initiative. We have now reached the stage where we can formalise these relationships and work together to make a significant contribution to the Dubai-China relationship in relation to judicial matters. The DIFC Courts and Shanghai High People’s Court are at the heart of business in our respective countries, with this agreement creating a valuable framework to support the increasing number of companies operating between the UAE and China.”  

In its official announcement, the Shanghai High People’s Court noted the “collaboration will act as a stimulus for economic and social development between the two cities”.

In a related but separate move, the DIFC Courts have published a guide for law firms and business on the mutual recognition and enforcement of monetary judgments in China and Dubai. It has been drafted jointly by the DIFC Courts and King & Wood Mallesons, a leading global law firm headquartered in Asia and China, and provides detailed explanation as to how a DIFC Courts judgement can be recognised and enforced in China, and vice versa. The guide is based on the existing 2004 Judicial Assistance Treaty between the People’s Republic of China and the UAE, and each court system’s own laws, and is available on www.difccourts.ae.

Mr. Shao Zili, Co-Chairman of King & Wood Mallesons China’s Management Committee, commented, ”As one of China’s leading law firms, we are honoured to support DIFC Courts by jointly drafting this Guide. It not only represents our close cooperation, but also provides valuable explanations for law practitioners in both countries. ”

Since their jurisdiction was opened to businesses worldwide in October 2011, the DIFC Courts have established one of the world’s strongest enforcement regimes. Their judgments can be enforced internationally through treaties such as the GCC Protocol and Riyadh Convention; treaties with China and France; and arrangements with many common law courts overseas, including the Commercial Court of England and Wales, the United States District Court for the Southern District of New York, the Federal Court of Australia, the New South Wales Supreme Court, the Supreme Court of Korea, the High Court of Kenya (Commercial and Admiralty Division), and the Supreme Court of the Republic of Kazakhstan.

-END- 

NOTES TO EDITORS 

Image 1: DIFC Courts Chief Justice Michael Hwang and KWM Co-Chairman of China’s Management Committee Shao Zili at the signing ceremony of Dubai International Financial Centre Courts – Guide on Mutual Recognition and Enforcement of Civil and Commercial Judgments with the PRC Courts. 

Image 2: DIFC Courts Chief Justice Michael Hwang and Shanghai High People’s Court Vice-President Sheng Yongqiang sign historic Memorandum of Understanding on Strengthening Judicial Exchange and Cooperation between Shanghai High People’s Court and Dubai International Financial Centre Courts. 

For further information, please contact:

Liam Turner/Tameem Alkintar

ASDA’A Burson-Marsteller

Dubai, UAE

Tel: 971-4-4507600

Fax: 971-4-4358040

Email: liam.turner@bm.com / tameem.alkintar@bm.com 

About the DIFC Courts

The UAE’s DIFC Courts administer a unique English-language common law system – offering swift, independent justice to settle local and international commercial or civil disputes. The Courts, based in Dubai, provide certainty through transparent, enforceable judgments from internationally-recognised judges, who adhere to the highest global legal standards. The DIFC Courts are independent from, but complementary to, the UAE’s Arabic-language civil law system – offering a choice that strengthens both processes while ensuring public access to world-class justice.

In October 2011, a decree of His Highness Sheikh Mohammed bin Rashid Al Maktoum, Prime Minister of the UAE and Ruler of Dubai, opened the DIFC Courts’ jurisdiction to businesses from all across the GCC region and beyond to provide the international business community with access to one of the most advanced commercial courts in the world.

The DIFC Courts were established under laws enacted by the late HH Sheikh Maktoum bin Rashid Al Maktoum, Ruler of Dubai in September 2004.  The laws establishing the DIFC Courts are designed to ensure that the DIFC Courts provide the certainty, flexibility and efficiency expected by Court users. Nearly 1,180 cases have been resolved through the DIFC Courts since 2008, while over 90% of Small Claims Tribunal cases are concluded within three weeks. The Courts’ community-focused approach encourages early settlement, while their successful track record supports Dubai’s growing status as an international business hub.

In line with HH Sheikh Mohammed’s vision, the DIFC Courts serve to develop the UAE national workforce and enhance the competitiveness of Emirati advocates. The DIFC Courts are spearheading training programmes predominantly aimed at local Emirati lawyers, which offer knowledge of, and qualifications in, the English-language common law system.

About King and Wood Mallesons

King & Wood Mallesons is an international law firm headquartered in Asia. As the first firm in the world able to practice PRC, Hong Kong, Australian, English, the US and a significant range of European laws, our presence and resources in the world’s most dynamic economies are profound. We open doors to global clients and unlock opportunities for them as they look to unleash the fullest potential of the Asian Century. Leveraging our exceptional legal expertise and depth of knowledge in the China market, we advise Chinese and overseas clients on a full range of domestic and cross-border transactions, providing comprehensive legal services.

In mainland China and Hong Kong, the firm has nearly 300 partners and 1,200 lawyers with 11 offices in Beijing, Shanghai, Shenzhen, Guangzhou, Sanya, Hangzhou, Suzhou, Qingdao, Jinan, Chengdu, Hong Kong and other major commercial centers. Around the world, the firm has over 2,700 lawyers with an extensive global network of 32 international offices spanning Singapore, Japan, the US, Australia, the UK, France, Germany, Spain, Italy and other key cities in Europe as well as presences in the Middle East and South Africa. We are a global law firm which provides a one-stop legal services covering laws in PRC, the UK, the US, Hong Kong, Australia, Germany, France, Italy and European antitrust. With a large legal talent pool equipped with local in-depth and legal practice, we provide legal services in multiple languages.

The King & Wood Mallesons platform, therefore, is able to provide its unique perspectives and market insights in Asia and greater regions. As a leading law firm developed in China, equipped with local in-depth, strong practice capabilities and extensive experience and combined with global vision and resources, KWM provides full-service, multi-jurisdiction, comprehensive, one-stop legal service and the best commercial solutions to meet the diverse needs of domestic and global clients and ensures that wherever our clients are doing business, we deliver the same high quality, commercial and innovative legal services.

More information can be found at www.kwm.com

The post UAE-China trade ties deepen with landmark judicial cooperation agreement appeared first on DIFC Courts.