Puppy Flipping: the work of taking a dog for-free or a value that is small, and selling it for a profit. Sounds like a fairly dishonest work to even, and any dog enthusiast some who’re not. As some might imagine but regardless of how immoral dishonest, or simply plain mistaken pet flipping seems to a lot of people, it isn’t illegal. Its a fast expanding company with no real laws inplace its one thats almost untouchable by regulators. There’s nothing becoming accomplished by regulators to avoid puppy flipping unless the animal being resold is taken, or even the supplier can be proven to know about a dog they are selling’s rightful owner. Inside Missouri’s state, you can argue that pet flipping, or income with no permit, is illegal beneath the laws controlled from Agriculture’s Office. Because circumstance pet flippers could be considered fake agents or vendor of animals. Presently, there appears to be no genuine policing of the situation. How are the pets they resell acquired by puppy flippers? Puppy flippers social networking and troll newspaper ads for animals “absolve to an excellent house” or for sale in a little price. They buy up pure bred traces of pets, generally puppies or preferred, then change and use the same sources to market the animals they’ve purchased. Puppy flippers may also be known to not buy altered, breed creatures that were pure, to be used in procedures that were breeding. Some dog flippers are now actually in the business of taking pets. These would be the people who will range areas for preferred kinds of animals out and take them out of the lawns or off their leads when owners are not paying attention. Some dog flippers happen to be known to break into fenced yards and at-times into properties that were peoples to obtain the animals they are after. Other pet flippers will grab by claiming to possess creatures marketed by others “identified”. A man located your dog in his community. He put an advertising on Craigs list searching for the seller. It before a guy contacted him and instructed him, “Oh my Lord. I have been worried sick. Many thanks for locating my pet.” The 2 guys satisfied and also the hunter handed canine as to the he imagined was the dogs operator, only over to see the pet forsale the next day on Craigs list. Though Craigs list features against marketing pets on their site a policy, individuals circumvent that policy by placing animals for “use” in place of “forsale”. Advertising “discovered” pets on Craigs record is permitted. Dog might be advertised with no constraints; lost, discovered, market or purchase, all day extended in local magazines. Facebook has no policy to restrict the sales of creatures on the site. Pets are marketed acquired and sold and found and lost on Facebook each day without any constraints. Dog flippers usually offer no or little look after the creatures they acquire for resale. Many times pets purchased for flicking are stored in substandard conditions given merely attention that was minimal in order to guarantee they are stored not dead until sales. These creatures do not obtain vetting and could quite often offer injured or sickly. By maintaining a watchful attention on your pets protect yourself against dog flippers. So you can certainly declare your animal must it be observed after getting missing or stolen microchip your dog. When someone attempts to declare your pet dog you have found, generally demand evidence of possession. Get additional precautions when re – homing a pet to someone that you don’t realize. Spay your pets to generate them less desirable for dog flippers that might be looking for pets that are breeding. There’s nothing illegitimate about the act of flipping animals to get a revenue, as previously mentioned before. But when you find the work reprehensible, share your ideas and issues. If you recognize someone on Myspace Craigs Number, or other social-media, selling and buying a dubious number of animals, broadcast your information across these stores by placing your concerns and building a public-service story out of it. If you see a suspected dog flipper inquiring about creatures on social-media, supply the initial or seller owner of your pet a heads-up about your suspicions. Alert everyone within your favorite socialmedia communities about anybody you are feeling could be in the pet flipping enterprise. Please be aware that is illegitimate and that puppy flippers who obtain pets for propagation have graduated into learning to be a dog mill operation. Inside the state of Mo, anybody having significantly more than three intact girls useful for purposes that are reproduction must follow the guidelines established from the Mo Office of Farming which include becoming qualified. Contact the local Department of Farming to document them, in case you believe that somebody is breeding pets illegally. Note: this informative article was updated to incorporate data regarding Missouri laws concerning dog dealing.

The post Puppy Flipping: the work of taking a dog for-free or a value that is small, and selling it for a profit. Sounds like a fairly dishonest work to even, and any dog enthusiast some who’re not. As some might imagine but regardless of how immoral dishonest, or simply plain mistaken pet flipping seems to a lot of people, it isn’t illegal. Its a fast expanding company with no real laws inplace its one thats almost untouchable by regulators. There’s nothing becoming accomplished by regulators to avoid puppy flipping unless the animal being resold is taken, or even the supplier can be proven to know about a dog they are selling’s rightful owner. Inside Missouri’s state, you can argue that pet flipping, or income with no permit, is illegal beneath the laws controlled from Agriculture’s Office. Because circumstance pet flippers could be considered fake agents or vendor of animals. Presently, there appears to be no genuine policing of the situation. How are the pets they resell acquired by puppy flippers? Puppy flippers social networking and troll newspaper ads for animals “absolve to an excellent house” or for sale in a little price. They buy up pure bred traces of pets, generally puppies or preferred, then change and use the same sources to market the animals they’ve purchased. Puppy flippers may also be known to not buy altered, breed creatures that were pure, to be used in procedures that were breeding. Some dog flippers are now actually in the business of taking pets. These would be the people who will range areas for preferred kinds of animals out and take them out of the lawns or off their leads when owners are not paying attention. Some dog flippers happen to be known to break into fenced yards and at-times into properties that were peoples to obtain the animals they are after. Other pet flippers will grab by claiming to possess creatures marketed by others “identified”. A man located your dog in his community. He put an advertising on Craigs list searching for the seller. It before a guy contacted him and instructed him, “Oh my Lord. I have been worried sick. Many thanks for locating my pet.” The 2 guys satisfied and also the hunter handed canine as to the he imagined was the dogs operator, only over to see the pet forsale the next day on Craigs list. Though Craigs list features against marketing pets on their site a policy, individuals circumvent that policy by placing animals for “use” in place of “forsale”. Advertising “discovered” pets on Craigs record is permitted. Dog might be advertised with no constraints; lost, discovered, market or purchase, all day extended in local magazines. Facebook has no policy to restrict the sales of creatures on the site. Pets are marketed acquired and sold and found and lost on Facebook each day without any constraints. Dog flippers usually offer no or little look after the creatures they acquire for resale. Many times pets purchased for flicking are stored in substandard conditions given merely attention that was minimal in order to guarantee they are stored not dead until sales. These creatures do not obtain vetting and could quite often offer injured or sickly. By maintaining a watchful attention on your pets protect yourself against dog flippers. So you can certainly declare your animal must it be observed after getting missing or stolen microchip your dog. When someone attempts to declare your pet dog you have found, generally demand evidence of possession. Get additional precautions when re – homing a pet to someone that you don’t realize. Spay your pets to generate them less desirable for dog flippers that might be looking for pets that are breeding. There’s nothing illegitimate about the act of flipping animals to get a revenue, as previously mentioned before. But when you find the work reprehensible, share your ideas and issues. If you recognize someone on Myspace Craigs Number, or other social-media, selling and buying a dubious number of animals, broadcast your information across these stores by placing your concerns and building a public-service story out of it. If you see a suspected dog flipper inquiring about creatures on social-media, supply the initial or seller owner of your pet a heads-up about your suspicions. Alert everyone within your favorite socialmedia communities about anybody you are feeling could be in the pet flipping enterprise. Please be aware that is illegitimate and that puppy flippers who obtain pets for propagation have graduated into learning to be a dog mill operation. Inside the state of Mo, anybody having significantly more than three intact girls useful for purposes that are reproduction must follow the guidelines established from the Mo Office of Farming which include becoming qualified. Contact the local Department of Farming to document them, in case you believe that somebody is breeding pets illegally. Note: this informative article was updated to incorporate data regarding Missouri laws concerning dog dealing. appeared first on DIFC Courts.

The article portion of a Ph.D. Program supplies to be able as a way to persuade them to pick you to talk directly to the entrance table to you. By thoughtfully organizing your essay, proclaiming your particular targets both during and beyond college, and tailoring your essay to each plan, you’re able to publish an admission essay that is solid. Plan A standard mistake for individuals is to deliver the composition that is same to all faculties; alternatively, every essay should be tailored by you to each distinct method to which you are using. So that you can try this, you need to first study the individual applications to learn what expectations, curricula, exactly certain requirements and benefits are. This it is possible to essaychecker.net/editorial-services/ address these differences within your article, thus displaying the admissions section that you will be knowledgeable about that one system and have put in the work to cater your request for them way. Issues you’ll be able to research include instructors, work-study fieldwork selections programs and related trainers. Intent and Enthusiasm The dissertation will be the only section of a graduate college application that is not close. This means it is your responsibility to choose how far better provide yourself, your aims along with one’s candidacy’s quality for each plan.

Attempt coconut oil, butter, avocado.

The School of California Berkeley suggests with whom you’d want to work about what specially you wish to focus your research on, and writing. The nonprofit firm Idealist produces that you need to examine ” the way you plan touse your knowledge, and what you need to examine.” By detailing your long-term occupation options, the admission screen you focused and are structured on your goals is being shown by you. Your composition must explain how the plan as well as your past college activities specifically assist your goals. Issues and Troubles Several people have sometime experienced a challenge that they have experienced to overcome to proceed toward their goals. If here is the event for you personally, come up with these limitations showing perseverance and your conviction. This facet of a article explains drive and the purpose behind your objectives that are instructional and skilled. It also offers a vital opportunity to allow you to stand out among the individuals that are additional.

You are searching for interior pursuits on a rainyday.

Be mindful, nevertheless, to not get too swept up in telling the history of “what occurred” — instead, focus that impacts who you’re today and on what you learned. Proofread and Modify Check the composition cautiously to prevent grammatical problems, once you have accomplished your first silly. Your article that is doctoral, much like the rest of your request, presents you being a client; consequently, it should be refined, qualified and of premium quality. When reviewing it, be aware of clichs — your report ought to be unique in both phrasing and content throughout. Additionally supply the essay to examine and supply feedback; particularly regarding pieces which might be uncertain, need more advancement or are not also specific. After you have obtained feedback, change the composition to produce a draft that is second.

The post Research Report Support Step by Step Research Information appeared first on DIFC Courts.

Claim No. CFI 020/2015

THE DUBAI international financial centre COURTS

in THE court of first instance

BETWEEN

• MOHAMMAD BIN HAMAD ABDUL-KARIM AL-MOJIL
• ADEL BIN MOHAMMAD BIN HAMAD AL-MOJIL

Claimants

and

PROTIVITI MEMBER FIRM (MIDDLE EAST) LIMITED

Defendant

 ORDER OF H.E. JUSTICE OMAR AL MUHAIRI

UPON reviewing the Defendants’ Application Notice CFI-020-2015/1 dated 28 July 2015 contesting the Jurisdiction of the DIFC Courts’ pursuant to part 12.1.2 (“the Application”);

AND UPON reading the relevant material in the case file;

AND UPON hearing Counsel for the Claimant and Counsel for the Defendant on 17 November 2015;

IT IS HEREBY ORDERED THAT:

1. The Defendant’s application to contest jurisdiction is dismissed.
2. The Claimant is awarded their costs of the Application, to be assessed by the Registrar if not agreed.

Issued by:

Maha Al Mehairi

Judicial Officer

Date of Issue: 31 December 2015

At: 1pm

SCHEDULE OF REASONS

1. Before the DIFC Court of First Instance are Claimants Mr Mohammad Al-Mojil and Mr Adel Al-Mojil, Saudi nationals that currently reside in Ajman, UAE. The Defendant is Protiviti Member Firm (Middle East) Limited (“Protiviti”), a business registered in the DIFC that performs various forms of business and management consultancy services including risk consultancy. The Defendant is part of a network of similar companies operating in over twenty countries.
2. These proceedings arise out of a report produced by the Defendant following an investigation into the operations and financial reporting of the Claimants and others of the Mohammad Al-Mojil Group (“MMG”). MMG is a business involved in the construction of onshore and offshore facilities in the oil and gas industry and the Claimants are the founding shareholders of the company.

Background

3. Mr Mohammad Al-Mojil was the chairman of MMG’s board until his retirement in March 2009. At that time, his son, Mr Adel Al-Mojil took over as chairman. In May 2008 MMG became a publicly traded company by way of an IPO when Mr Mohammad Al-Mojil sold a 30% stake in the company. Trading in the company’s shares was eventually suspended on 22 July 2012 by the Capital Market Authority of Saudi Arabia (“CMA”) after suffering significant losses.
4. In December 2012, the CMA appointed the Defendant to conduct an investigation into the operations and financial reporting of MMG for the period of 2005 to 2012. At the conclusion of the investigation, the Defendant was to produce a report (“the Report”) dealing in particular with whether any fraud or other misconduct had occurred.
5. On 30 June 2013, the Defendant provided the Report to the CMA by email and in hard copy in Saudi Arabia.
6. On 18 November 2014, the CMA issued a charge sheet in Saudi Arabia against the Claimants, which made various allegations against them in relation to the IPO of shares in MMG. As a result of the charge sheet, several sanctions were imposed against the Claimants and businesses owned by them; including freezing substantial assets in Saudi Arabia, restrictions placed on the transfer of assets by the First Claimant and a travel ban preventing them from leaving Saudi Arabia should they ever enter the country.
7. As a result, on 28 July 2015, the Claimants filed a claim with the DIFC Courts pursuant to Article 8(2) of the DIFC Court Law No. 3 of 2004. The Claimants seek USD 3,438,177.35 in damages, delivery of the report, and costs.
8. In response, the Defendant applied for an order seeking a declaration that the DIFC Court does not have jurisdiction over the claim pursuant to Part 12.1(2) of the RDC and that the Court dismiss the claim form or set it aside. The Defendants argue that the DIFC Courts are not the appropriate forum for the claim and that the Courts of the Kingdom of Saudi Arabia (“KSA”) are the more appropriate forum for the claim and that the Particulars of Claim submitted by the Claimants disclose no reasonable grounds for bringing the claim.

The Hearing

9. On 17-18 November 2015, an oral hearing took place before me which was attended by Mr Jonathan Adkin with Mr Bill Gambrill assisting for the Claimant, and Mr Tom Montagu-Smith with Mr Adrian Chadwick and Ms Reema Ashraf assisting for the Defendant. During the hearing, both parties presented their arguments in full.

The Defendant’s Arguments

10. On the issue of jurisdiction, the Defendant submits that the DIFC Court has jurisdiction over claims to which Protiviti is a party under the Judicial Authority Law, Art 5(A)(1)(a) due to the fact that the Defendant is registered in the DIFC.
11. The Defendant argues, however, that a party must advance “a case which can found a dispute” citing Hardt v Damac [CFI-036-2009] (4 April 2010) at [60]. Also cited is Bank Sarasin v Al Khorafi [CA-003-2011] (5 January 2012) at [72], which demonstrated that the test applied was whether the claimants established a “good arguable case.” At [74], this meant whether the claim had “sufficient substance for this court to exercise jurisdiction, provided that one of the jurisdictional gateways is engaged.”
12. The Defendant argues that the Claimants have not particularized any recoverable loss and therefore fail to establish a case which can found a dispute. Accordingly, the Defendant claims this Court does not have or should not exercise jurisdiction.
13. Alternatively, the Defendant argues that the Claimants’ claim should be dismissed or stayed on grounds of forum non conveniens, citing Corinth Pipeworks SA v Barclays Bank PLC [CA-002-2001] (22 January 2012) at [67] and [68c] which states, “the DIFC Courts possess the discretion to decline jurisdiction on the grounds of forum non conveniens.
14. Pursuant to this, the Defendant argues that the natural forum for this claim is the KSA; as the Report was provided to the CMA in the KSA, the alleged tort was committed in the KSA, both parties agree that KSA law applies, KSA judges with training in Shariah law are better placed to decide the issues, and the claim has no substantial connection to the DIFC as none of the work was carried out in the DIFC.
15. Accordingly, the Defendant asks this Court to dismiss or stay these proceedings.

The Claimants’ Arguments

16. The Claimants acknowledge that the Defendant accepts that the DIFC Courts have jurisdiction over the present claim made against it and quotes paragraph 7 of Ms Ashraf’s statement for the Defendant which states,

“The Defendant is a company which is registered and licensed in the DIFC. As such, it is accepted that the DIFC Courts have jurisdiction over claims to which the Defendant is a party. The Defendant’s position, however, is that the DIFC Courts should not exercise that jurisdiction to hear this case.”

17. As such, the Claimants submit that the question is whether the Court should decline to exercise that jurisdiction, and the only identified basis on which it is said it should do so is under the doctrine of forum non conveniens.
18. The Claimants also cite the Corinth Pipeworks case, (cited above), as it relates to forum non conveniens, but argue that no further observations as to the source of the Court’s powers to order a stay of proceedings on forum non conveniens grounds, or the manner in which such powers should be exercised have been established in Corinth Pipeworks.
19. Accordingly, the Claimants cite the positions of the scope and content of the common law doctrine of forum non conveniens grounds in England, Canada and New Zealand, Australia, and the United States and conclude that if English law is applied, then the Court would have no power to grant a stay on forum non conveniens This is because previous decisions of the DIFC Courts have only ever considered the doctrine of forum non conveniens in cases where a non-DIFC defendant was involved.
20. As for an alternate available forum, the Claimants submit that the Defendant has not established the KSA as an available alternative forum because the Defendant is not registered or licensed in the KSA and has no presence there and accordingly there is no reason to assume that the Saudi Courts have personal jurisdiction over the Defendant. Furthermore, the Claimants argue that the Saudi Courts are not an alternative available forum in practice due to the travel ban imposed on the Claimants.
21. Furthermore, the Claimants argue the appropriateness of the DIFC Courts and maintain that this Court should be slow to deny a claimant the right to sue a defendant which has deliberately chosen to establish its business in the DIFC and thereby place itself within the jurisdiction of its Courts, as it would significantly undermine the purpose and integrity of the DIFC as a financial centre were it readily to refuse claimants access to its courts to remedy wrongs alleged against persons and entities established there.
22. Additionally, the Claimants contend that the DIFC Courts are the more appropriate forum because the Claimants are residents of the UAE, the travel ban makes it overwhelmingly in the interests of the parties and of justice that the claim is litigated in the DIFC, the bulk of the Defendant’s likely witnesses will be in Kuwait, with some in the UK and the UAE, where none are said to be in the KSA, most of the relevant documents are likely to be outside the KSA, a significant number of the key documents are likely to be in English, the Report itself was produced in English, and the language of the witnesses are likely to be English.
23. Lastly, the Claimants point out the contention made by the Defendant that the claim is advanced under Saudi law. The Claimants contend that there is no reason to suppose that the DIFC Courts could not adequately deal with issues of Saudi law with the appropriate assistance of expert evidence. The Claimants cite Al Khorafi v Bank Sarasin [CA-003-2011] (5 January 2012) where the Court of Appeal rejected the suggestion that it should surrender jurisdiction in favour of the Swiss Courts merely due to issues of Swiss law that arose.
24. In summary, the Claimants contend that the jurisdiction challenge raised by the Defendant should be dismissed and that the original claim filed by the Claimants should proceed in the DIFC Courts.

Discussion

25. My order and analysis focuses solely on the issue of jurisdiction to the exclusion of the merits of the claim filed by the Claimants.
26. It has previously been mentioned above by both parties that the Defendant admits that the DIFC Courts have jurisdiction over the present claims made against it. The Defendant specifically sets out this position in their Skeleton Argument dated 12 November 2015 in paragraph 24 which states, “Protiviti is registered in the DIFC. It is therefore a DIFC Establishment: Judicial Authority Law, Art 2. The Court therefore has jurisdiction over claims to which Protiviti is a party: Judicial Authority Law, Art 5(A)(1)(a).”
27. Indeed, the DIFC Court has jurisdiction pursuant to Article 5 of the Judicial Authority Law, Dubai Law No. 12 of 2004 as amended by Law No. 16 of 2011. The applicable article on jurisdiction is Article 5(A)(1)(a), which states,

• The Court of First Instance:
  • The Court of First Instance shall have exclusive jurisdiction to hear and determine:
    • Civil or commercial claims and actions to which the DIFC or any DIFC Body, DIFC Establishment or Licensed DIFC Establishment is a party;”

The Defendant is correct to assert that it is a DIFC Establishment and that the DIFC Court has jurisdiction over claims to which it is a party.

28. As to the argument put forth by the Defendant that the Claimants have not particularized any recoverable loss and therefore fail to establish a “case which can found a dispute,” citing Hardt v Damac (cited above), I find this argument to be unsubstantiated. It is clear that the Claimants have laid out a case in their Particulars of Claim dated 28 June 2015 outlining their cause of action as well as losses and damages incurred sufficient enough to articulate an arguable claim.
29. The Defendant further argues that the natural forum for this claim is plainly the KSA because, as it was conceded by the Claimant in their Particulars of Claim (and later refuted in their Skeleton Argument), and as the Defendant asserts, the tort alleged by the Claimant occurred in the KSA. To this point, the Defendant cites Robert Goff L.J. in The Albaforth [1984] 2 Lloyd’s Rep 91 at 96, “If the substance of an alleged tort is committed within a certain jurisdiction, it is not easy to imagine what other facts could displace the conclusion that the courts of that jurisdiction are the natural forum.”
30. Had the DIFC Court legislators wished to take this approach to defining jurisdiction as it relates to torts, they could have taken the approach of the UAE law as laid out in the Civil and Commercial Procedures, Federal Law No. 11 of 1992, Article 31(2) which states, “It is permissible for a claim to be brought before the court in the jurisdiction of which the damage occurred in claims for compensation due to personal or financial damage.” Silent this provision in the DIFC law, regardless of where the tort occurred, the DIFC Courts maintain jurisdiction by way of Article 5(A)(1) of the Judicial Authority Law.
31. Nevertheless, the Defendant asks this Court not to exercise its jurisdiction and to dismiss or stay the current proceedings on forum non conveniens If I am incorrect in my analysis regarding jurisdiction based on Article 5(A)(1) of the Judicial Authority Law, and it is decided that the jurisdiction lies where the tort occurred, assuming that the tort occurred in the KSA, I find that the more convenient forum would still be the DIFC Courts under the doctrine of forum non conveniens.
32. As elucidated by the pleadings, not only is the Defendant registered and licensed in the DIFC, but there is no evidence in the pleadings whatsoever that the Defendant has any physical presence in the KSA and it is clear that the Defendant has no license or office in the KSA.
33. Additionally, notwithstanding the fact that the Claimants reside in the UAE, the presence of the travel ban imposed on the Claimants in the KSA places a disproportionate obstacle in the way of the Claimants should the claim be litigated in the KSA.
34. Furthermore, the Report was produced in English, many of the relevant documents are likely to be in English and the language of the witnesses is also in large part likely to be English.
35. As to the contention that the claim is advanced under Saudi Law and that KSA judges are far better placed to decide the issues as stated by the Defendant in their Skeleton Argument, there is no reason to suggest that the DIFC Court cannot adequately deal with any issues of Saudi law that may arise. As the Claimants correctly pointed out in paragraph 72 of their Skeleton Argument, with the assistance of the appropriate expert evidence, the DIFC Court judges are certainly well equipped to deal with issues of Saudi law. Cited is Al Khorafi v Bank Sarasin (cited above), a case in which the DIFC Court of Appeal rejected the submission that is should surrender jurisdiction in favour of the Swiss Courts because issues of Swiss law arose. At paragraph 119 it was held that, “[t]o the extent that there will need to be consideration by the DIFC Court of relevant principles of Swiss Law, expert evidence can be called to enable the court to give effect to the choice of Swiss Law in the contracts.” There is no reason to assume that the same procedure cannot apply to the present case. Indeed DIFC Court judges are undoubtedly capable to deal with issues of Saudi law.
36. For these reasons, the request by the Defendant to dismiss or stay the current proceedings filed by the Claimants is denied.

Costs

37. The final issue to be decided is the question of costs. According to RDC 38.7, if the Court decides to make an order on costs, the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party. I am satisfied that the Defendant, as the unsuccessful party in this case, should pay the costs, and be subject to a detailed assessment if not agreed.

Issued by:

Maha Al Mehairi

Judicial Officer

Date of Issue: 31 December 2015

At: 1pm

The post CFI-020-2015 Mohammad Bin Hamad Bin Abdul Karim Al Mojil & another v Protiviti Member Firm (Middle East) Limited appeared first on DIFC Courts.

Claim No. CFI 024/2015

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BEFORE H.E. JUSTICE OMAR AL MUHAIRI

BETWEEN

ZIAD AZZAM

Claimant

and

DEYAAR DEVELOPMENT P.J.S.C.

Defendant

AMENDED ORDER OF H.E. JUSTICE OMAR AL MUHAIRI

UPON hearing Counsel for the Claimant and Counsel for the Defendant at a hearing on 18 October 2015

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

AND UPON reading the Judgment and Order of H.E Justice Omar Al Muhairi dated 9 December 2015

IT IS HEREBY DECLARED THAT:

1. The DIFC Courts have exclusive jurisdiction over the claim brought by the Defendant against the Claimant which is the subject matter of the Dubai Court proceedings, claim reference 386/2015.

AND IT IS HEREBY ORDERED THAT:

2. Save for the declaration set out above, the Claimant’s claim is dismissed.

3. There be no order as to costs. If not agreed, the parties shall furnish details of their costs together with short written submissions within 21 days of the date of this Order.

Issued by:

Amna Al Owais

Deputy Registrar

Date of Issue: 28 December 2015

At: 11am

The post CFI-024-2015 Ziad Azzam v Deyaar Development PJSC appeared first on DIFC Courts.

DRA _Q4 NEWSLETTER 2015

The post DIFC Dispute Resolution Authority (DRA) Q4 Newsletter appeared first on DIFC Courts.

Claim No. CFI 024/2015

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BEFORE H.E. JUSTICE OMAR AL MUHAIRI

BETWEEN

ZIAD AZZAM

Claimant

and

DEYAAR DEVELOPMENT P.J.S.C.

Defendant

 AMENDED ORDER OF H.E. JUSTICE OMAR AL MUHAIRI

UPON hearing Counsel for the Claimant and Counsel for the Defendant at a hearing on 18 October 2015

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

AND UPON reading the Judgment and Order of H.E Justice Omar Al Muhairi dated 9 December 2015

IT IS HEREBY DECLARED THAT:

1. The DIFC Courts have exclusive jurisdiction over the claim brought by the Defendant against the Claimant which is the subject matter of the Dubai Court proceedings, claim reference 386/2015.

AND IT IS HEREBY ORDERED THAT:

2. Save for the declaration set out above, the Claimant’s claim is dismissed.

3. There be no order as to costs. If not agreed, the parties shall furnish details of their costs together with short written submissions within 21 days of the date of this Order.

Issued by:

Amna Al Owais

Deputy Registrar

Date of Issue: 28 December 2015

At: 11am

The post CFI 024/2015 Ziad Azzam v Deyaar Development P.J.S.C. appeared first on DIFC Courts.

View PDF

Enforcing DIFC Court Judgments and Orders outside the DIFC

1.  This paper has been drafted with a view to serving as guidance to practitioners and potential claimants as to the legal background and practicalities involved in enforcing DIFC Court judgments, decisions and orders outside the DIFC. Although this Enforcement Guide has been produced by the DIFC Courts following public consultation, it does not constitute a protocol or set of rules which are binding on the DIFC Courts or the Courts of other jurisdictions in which enforcement of DIFC Court judgments may be sought.

2.  The Guide will consider the enforcement of DIFC Court judgments and orders:

a. In Dubai, but outside the DIFC;
b. In the UAE, but outside Dubai; and
c. Outside the UAE.

3.  A selection of English language versions of some of the relevant parts of the source materials referred to below are included in an annex to this paper.

A. The Enforcement of DIFC Court Judgments and Orders in Dubai, but outside the DIFC

4.  A system has been established for the enforcement of DIFC Court judgments and orders in Dubai(1). The system is designed to be simple, swift and effective(2). It has been used successfully on numerous occasions since its introduction in 2004(3). In order to increase the efficiency of the system, the process has been slightly modified by the amendment to Dubai Law No. 12 of 2004 (“the DIFC Law”) in October 2011(4).

5. Prior to the amendment of the DIFC Law, the DIFC Courts and Dubai Courts entered into a Protocol of Enforcement (“the Protocol”)(5). Amongst other things, the Protocol clarified two of the requirements for the enforcement of DIFC Court judgments in Dubai(6).

6. First, the Protocol clarified (at footnote 1) that a judgment, decision or order is “final” if
either:

a. It is final and unappealable; or
b. It is an order made either before or during the course of proceedings and is said on its face to be an “Execution Order”.

Second, the Protocol clarified (at footnote 2) that a “legal” translation was a translation carried out by a translator authorised by the UAE Ministry of Justice. This Protocol has now been superseded and codified by the terms of Law No. 16 of 2011.

7.  DIFC Court judgments, decisions or orders may be enforced through the Dubai Courts if three conditions are satisfied (Article 7(2) of the DIFC Law):

a. They must be final and executory;

b. They must be legally translated into Arabic;

c. They must be certified by the DIFC Courts for execution and have a formula of
execution affixed by the Courts(7).

8.  The procedure for enforcement is described in Article 7(3) of the DIFC Law (as amended).

9.  The enforcing party must first request an execution letter from the DIFC Courts. This is a letter written by the DIFC Courts to the Chief Justice of the Dubai Courts, setting out the procedures required for the enforcement of the judgment, decision or order.

10. The party seeking enforcement must then present an application for enforcement to the execution judge at the Dubai Courts, accompanied by the execution letter and a legal translation into Arabic of the judgment, decision or order.

11.  On receipt of the application, the Dubai Courts must enforce the judgment, decision or order in accordance with the Federal Civil Procedures Law(8). The basis on which enforcement may be challenged is set out in that law. Importantly, however, the execution judge may not re-open the merits of the case .

12.  Enforcement in Dubai of money judgments from the DIFC Courts has proved a reliable procedure to date. DIFC Court judgments should be enforced in the Dubai Courts in the
same way as judgments delivered by the Dubai Courts outside the DIFC.

13.  The procedure now in effect is that the DIFC Court judgment, order or decision is “converted” into a judgment of the Dubai Courts, which can then subsequently be enforced under any enforcement treaties to which the UAE is a party.

14.  By way of background, Article 235 of the Federal Civil Procedures Law states that the UAE Courts will not enforce a foreign judgment if they would themselves have had jurisdiction over the dispute(10). This requirement was applied in 1993, for example, in Dubai Court of Cassation decision No. 117/93. In that case, the Defendants were residents of the UAE and therefore, under UAE law, the Dubai Courts were deemed to have jurisdiction to hear the case. On that basis, the Dubai Court of Cassation refused to enforce a Hong Kong money judgment against them. Moreover, the UAE Courts are unlikely to enforce a foreign arbitral award or court judgment unless “reciprocity” has been proved by the party requesting enforcement(11).

15.  There are a number of cases where DIFC Court orders, decisions and judgments have been enforced by the Dubai Courts(12). DIFC Court orders which have been so enforced include interim orders, such as freezing orders (Mareva injunctions)(13) However, there is no record of the execution of any DIFC Court search orders (Anton Piller orders) by the Dubai Courts. This is due to the practice of the Dubai Courts of only enforcing applications for the execution of orders against assets but not, by contrast, against documents and other evidence.

B. Enforcement in the UAE outside Dubai

16.  Prior to the coming into force in November 2011 of Law No. 16 of 2011 amending certain provisions of Law No. 12 of 2004, the enforcement of DIFC Court judgments and orders outside Dubai but in the UAE had to be pursued through the process of “deputisation” or “referral”, as provided under Article 221 of the Federal Civil Procedures Law.

17.  Article 221 provides for the following procedure:

a. The “competent execution judge” (until now considered to be the Dubai execution judge as regards DIFC judgments) shall refer the judgment or order to the execution judge for the area in which the judgment or order is sought to be enforced, and provide the latter with all the legal papers required for execution.

b. The execution judge to whom the referral is made shall take all the decisions necessary to execute the referral and shall rule on procedural objections relating to the execution raised before him, and his appealable decisions shall be subject to appeal before the court of appeal in his area.

c. The execution judge who has carried out the execution shall inform the competent execution judge who made the referral of what has happened, and shall transfer to
him any items or other property received by him as a result of the sale of things attached.

d. If the execution judge to whom the matter has been referred finds that there are legal reasons precluding the execution, or if it is impossible for him to execute for any other reason, he must notify the competent execution court thereof.

18.  Article 7(2) of Law No. 16 of 2011, which amends certain provisions of Law No. 12 of 2004 provides that:

“where the subject matter of execution is situated outside the DIFC, the judgments, decisions and orders rendered by the Courts and the Arbitral Awards ratified by the Courts shall be executed by the competent entity having jurisdiction outside the DIFC in accordance with the procedure and rules adopted by such entities in this regard…”

19.  This has been interpreted by some as indicating that following the coming into force of this amending Law, DIFC Court judgments, decisions and orders will be able to be sent directly from the DIFC Courts for execution by the local “competent entity” within the UAE, without the need for going through the Dubai execution judge and the process of “deputisation” or “referral” set out in the above-mentioned Article 221 of the Federal Civil Procedures Law. Another view is that the Federal Civil Procedures Law always allowed for DIFC Court judgments to be sent directly to the competent entity where execution was being sought, and that amending Law No. 16 simply confirms the position that the DIFC execution judge may be considered to be a “competent execution judge” for the purposes of Article 221 of the Law(14).

20.  However, given that there is as yet no established practice of this, parties seeking to enforce judgments, decisions and orders emanating from the DIFC Courts might be better advised to opt for the “tried and tested” means provided by Article 221(15).

21.  The recent Memoranda of Understanding (MOUs) between the DIFC Courts and the Courts in the Emirate of Ras Al Khaimah and the UAE Federal Ministry of Justice are expected to assist in the enforcement of DIFC judgments, decisions and orders within the UAE(16).

C. Enforcement outside the UAE

22.  In principle, the enforcement of DIFC Court judgments, decisions and orders outside the UAE will be exactly the same as the enforcement of a judgment of the Dubai Courts. Constitutionally, the DIFC Court is part of the Dubai judicial system and so its judgments have the same weight as Dubai Court judgments(17).

23. Where there is a relevant treaty in place between the UAE and the target jurisdiction, enforcement will be governed by the terms of that treaty. Where there is not, enforcement will depend on the laws of the state in which the judgment creditor is seeking to enforce(18).

Treaties

24.  The UAE has entered into a number of treaties with other countries which govern the reciprocal enforcement of judgments:

a. The GCC Convention (1996);

b. The Riyadh Arab Agreement for Judicial Cooperation (“the Riyadh Convention” 1983);

c. The Agreement on Judicial Cooperation, Execution of Judgments and Extradition of Criminals between the United Arab Emirates and the Tunisian Republic (1975);

d. The Convention on Judicial Assistance, Recognition and Enforcement of Judgments in Civil and Commercial matters signed between France and the UAE (“the Paris Convention” 1992);

e. The Agreement on Juridical Cooperation in Civil and Commercial Matters with India (2000);*

f. The Legal and Judicial Cooperation Agreement between the UAE and the Arab Republic of Egypt (2000);**

g. The Convention on Judicial Assistance in Civil and Commercial Matters between the United Arab Emirates and the Republic of China (PRC) (2004);

h. The Agreement between the Republic of Kazakhstan and the United Arab Emirates on Judicial Assistance in Civil and Commercial Matters (2009);***

The GCC Convention (1996)

25.  The other signatories to the GCC Convention are Bahrain, Saudi Arabia, Oman, Qatar and Kuwait.

26.   Article 1 of the GCC Convention states:

“Each of the GCC countries shall execute the final judgments issued by the courts of any member state in civil, commercial and administrative cases…”

27.  In order for a judgment to be enforceable, the originating court must have had jurisdiction, within the definition provided in the Convention. The various jurisdictional gateways are set out in Article 4. They include:

a. Domicile or residence of the defendant in the jurisdiction (Article 4.A);

b. Disputes relating to the activity of a branch in the jurisdiction (4.B);

c. Disputes about the performance of a contract which took place or should have taken place in the jurisdiction (4.C);

d. Disputes about acts which occurred in the jurisdiction (4.D);

e. The existence of a jurisdiction agreement (4.E); and

f. Submission to the jurisdiction by defending the action (4.F).

28.  The Convention sets out a number of grounds on which enforcement may be contested. However, the merits of the claim may not be reviewed:

“The task of the judicial authority of the state where the judgment is required to be executed shall be limited to confirming whether the judgment fulfills the requirements as provided by this agreement, without discussing the subject matter. .” (19)

29.  On the premise that the DIFC Courts are the courts of a GCC member state, other GCC nations should enforce DIFC Court judgments in accordance with Article 1 of the Convention,
and should not distinguish between them and other judgments emanating from the Dubai Courts(20).

30.  Notwithstanding their constitutional status, in the light of the relatively recent establishment of the DIFC Courts, in practice it may be prudent to obtain recognition of the judgment or order in the Dubai Courts first, before going on to seek enforcement outside the UAE.

Practical Example:

Example case of the enforcement of a GCC order in the DIFC Courts

Farooq Al Alawi v. Lloyds TSB Bank PLC and Credit Suisse AG (21)

In this case the DIFC Courts ordered that the respondents enforce a judgment which had been issued by the Bahraini Family Courts and a resolution emanating from the Bahraini Board of Minors’ Funds Custody. The order in question made reference to the Rules of the DIFC Courts; the 1983 Convention on Judicial Cooperation between States of the Arab League; and the 1995 Protocol on the Enforcement of Judgments Letters Rogatory and Judicial Notices issued by the Courts of the Member States of the Arab Gulf Co-operation Council(22). The background to the case was as follows: The applicant had been issued with a Power of Attorney by the Minor Affairs Directorate of the Ministry of Justice and Islamic Affairs in the Kingdom of Bahrain. He had subsequently instructed the two respondent financial institutions located in the DIFC (where a Bahraini national, who had been subject in Bahrain to an order of distraint, had bank accounts) to comply with the terms of the judgments and resolutions issued by the Bahraini Courts. However, before so doing, an Execution Order from the DIFC Courts had to be issued first.

This serves as a good illustration of the enforcement of an order from another GCC country by the DIFC Courts, reference being made to the relevant applicable international conventions.

1.) The Riyadh Convention (1983)(23)

31.  The other parties to the Riyadh Convention are: Jordan, Bahrain, Tunisia, Algeria, Djibouti, Saudi Arabia, Sudan, Syria, Somalia, Iraq, Oman, Palestine, Qatar, Kuwait, Lebanon, Libya, Morocco(24), Mauritania and Yemen.

32.  Article 25 of the Riyadh Convention states that, subject to certain provisos:

“each contracting party shall recognize the judgments made by the courts of any other contracting party in civil cases including judgments related to civil rights made by penal courts and in commercial, administrative and personal statute judgments having the force of res judicata and shall implement them in its territory in accordance with the procedures stipulated in this Part…”

33.   The Riyadh Convention requires that the originating court have jurisdiction in accordance with the laws of the enforcing state. However, the Riyadh Convention also sets out the circumstances in which the originating court shall be considered to have jurisdiction. These are very similar to, but slightly more extensive than, the jurisdictional gateways setout in the GCC Treaty.

34.  Once again, although the Riyadh Convention sets out a number of bases on which enforcement may be refused, the enforcing Court may not review the merits of the decision:

“The duties of the competent judicial body of the contracting party requested to recognize or to execute the judgment concerned shall be confined to establishing that the judgment complies with the provisions of this Agreement without examining the subject matter thereof”(25)

2) The Agreement on Judicial Cooperation, Execution of Judgments and Extradition of Criminals between the United Arab Emirates and the Tunisian Republic (1975)

Article 20 of the Agreement between the UAE and Tunisia provides as follows:

“Every final judgment granting civil or commercial rights, or deciding compensation from the criminal courts or related to personal status, which is issued by a judicial authority in any one of the two Contracting States shall be enforceable in the other State according to the provisions of this chapter. The conclusiveness of the judgment shall be determined by the
law of the State in which the judgment has been issued.”

3) The Paris Convention (1992)

35.  The UAE has the benefit of a bilateral treaty with France, described as a “Convention on judicial assistance, recognition and enforcement of judgments in civil and commercial matters” (“the Paris Convention”).

36.  Article 13(1) of the Paris Convention states that, if certain conditions are fulfilled:

“Judgments rendered by the courts of one State shall be recognised and may be declared enforceable in the other State if (certain) conditions are met…”

37.  The originating court must have had jurisdiction either according to the laws of the enforcing state or according to the rules set out in Article 14 of the Convention.

38.  Article 14 provides for jurisdictional gateways which are very similar to those set out in the GCC Treaty. Additional gateways are provided in respect of cases relating to immovable property, inheritance, maintenance and the custody of minors.

Article 15 makes clear that the merits are not to be reviewed

4) The Agreement on Juridical Cooperation in Civil and Commercial Matters with India (2000)

39.  Article XV.1 of the Agreement with India which came into force on 29 May 2000(26) provides that each of the Contracting Parties shall, in accordance with its laws, recognise and or execute decrees passed by the Courts of the other Contracting Party in civil, commercial and personal matters and by criminal courts in personal matters.

40.  However, Article XV.3 specifies that the Agreement does not apply to interim or provisional measures, except matters relating to taxation and allowances.

5) The Convention on Judicial Assistance in Civil and Commercial Matters between the United Arab Emirates and the Republic of China (PRC) (2004)

41.  Article 1 of the Convention between the UAE and the Republic of China provides:

 “1-Citizens of either Party in the territory of the other are given judicial protection and have the right to resort to the courts of the other Contracting Party with the same terms and conditions that are available to nationals of the other party.

2-the above terms apply to the legal persons who carry on business in the territory of either party in accordance with national law”

Article 4 states:

“2- In accordance with this agreement, assistance will be provided in the following areas:
…c Recognition of judgments and settlements and their implementation.”

Memoranda of Guidance with other Common Law Jurisdictions

42.  The DIFC Courts have signed Memoranda of Guidance (“MOGs”) with fellow common law jurisdictions – namely with the Commercial Court of England and Wales on 23 January 2013(27), the Supreme Court of New South Wales on 9 September 2013(28) and the Federal Courts of Australia on 28 March 2014(29),  an MOG with the High Court of Kenya (Commercial & Admiralty Division) on 27 November 2014 and with the Supreme Court of Singapore on 19 January 2015. The DIFC Courts also signed an MOG with the United States District Court for the Southern District of New York (SDNY) on 29 March 2015.

Although these Memoranda have no binding legal effect in that they do not constitute treaties or legislation, and do not have the effect of superseding any existing laws, judicial decisions or court rules, they set out a “mutual understanding” of the applicable laws and judicial processes governing the reciprocal enforcement of final money judgments under the common law.

On 28 August 2015 the first such MOG was signed with a civil law jurisdiction, namely the Supreme Court of the Republic of Kazakhstan (30), reference being made to the Agreement between the Republic of Kazakhstan and the United Arab Emirates on Judicial Assistance in Civil and Commercial Matters (2009). On 4 November 2015 the DIFC Courts signed an MOG on Enforcement with the Supreme Court of Korea – the first with a civil law jurisdiction with which the UAE has no relevant treaty.

Where no treaty exists

43.  The question of whether a DIFC Court judgment, decision or order will be enforced in a foreign country with which the UAE has no relevant treaty will be a matter for the courts of that country. This is not intended to be a comprehensive review of those enforcement procedures. However, the following general comments can be made.

44.  In some countries, such as Russia, Denmark, Iceland, Finland and Norway, the courts will not enforce a foreign judgment at all, in the absence of a relevant treaty.

45.  In other countries, the courts will require reciprocity and so will investigate the question of whether the originating court would enforce its own money judgments. This approach was historically taken more widely. More recently, it is no longer a requirement in many countries. Examples of courts which continue to require reciprocity are Germany, Austria, Japan, Nigeria, Singapore and a small number of states of the United States of America.

46.  When considering whether to enforce a DIFC Court judgment, it is open to question whether the foreign court would investigate the question of reciprocity by looking at the laws applicable in the Dubai Courts or those applicable in the DIFC Courts.

47.  At present, there are no decided cases in which the DIFC Court has had to grapple with the question of whether its powers to enforce foreign judgments are wider than those of the Dubai Courts. The relevant legislation appears to give the DIFC Courts a relatively free hand in determining the circumstances in which they will enforce a foreign judgment. Article 7(6) of Dubai Law No. 12 of 2004 (as amended) simply states that foreign judgments “shall be enforced within the Centre in the manner prescribed in the Rules of the Courts.”
This language is echoed in Article 42 of the DIFC Court Law (DIFC Law No. 10 of 2004). Article 24 of the Court Law is expressed in similarly broad terms.

48.  If the DIFC Courts’ powers to enforce foreign judgments are wider than those of the Dubai Courts, then, in principle, DIFC Court orders may be easier to enforce in those foreign countries which require reciprocity.

49.  It might further be ventured that given the process which the DIFC Courts follow, in particular their significant common law influence and their drawing from the practice of the English Courts, their judgments and orders might lend themselves to easier enforcement outside the UAE, especially in legal systems which follow similar procedures, simply because the process is more likely to be recognised and to be considered “safe” and therefore enforceable in the foreign courts concerned.

Jurisdiction

50.  In most (possibly all) countries, the courts of the enforcing state will require that the originating court had jurisdiction according to the enforcing court’s own criteria. Those criteria will vary from country to country. In many cases, the rules applied are quite restrictive, sometimes more restrictive than those rules by which that Court determines its own jurisdiction.

51.  One example of this is the approach of the English Courts. Where no relevant treaty exists, the English Courts will apply the common law to determine whether the originating court had jurisdiction. In this context, in the case of a personal judgment, in order to establish that the originating court had jurisdiction, it needs to be shown that either:

a. The judgment debtor was physically present in the jurisdiction at the time that proceedings were instituted;

b. The judgment debtor was the claimant or made a counterclaim in the proceedings;

c. The judgment debtor submitted by voluntarily appearing in the proceedings; o

d. The judgment debtor is bound by a valid jurisdiction agreement

52.  Where no treaty exists, the English Courts therefore adopt a more restrictive test in determining a foreign court’s jurisdiction than they would take when deciding whether they have jurisdiction over a case.

Policy

53.  Most foreign countries will refuse to enforce certain types of judgment or order on policy grounds. For example, English Courts will not enforce orders for punitive damages. Awards of multiple damages under Article 40(2) of the DIFC Law of Damages and Remedies might therefore be difficult to enforce. Few courts will enforce judgments for the recovery of taxation. Many courts in the Arab world will refuse to enforce a judgment which is contrary to the principles of Sharia.

Merits

54.  In many foreign countries, the enforcing court will not reopen the merits of the case. In the Courts of England and Wales, for example, the law considers that the existence of a judgment of a competent foreign court creates a free-standing and enforceable obligation to pay the money which the defendant has been ordered to pay. The objections which may be raised to the enforcement of such a judgment are limited, such as that the foreign court did not have jurisdiction to try the case, the judgment is not for a liquidated sum of money (a foreign judgment can only be enforced in England and Wales if it is finally quantified), or that the judgment is not final and conclusive (31).

55.  In some countries, however, such as Belgium, Italy and Portugal, the courts will allow the merits to be reviewed in certain circumstances.

Procedure

56. Rules 45.18 to 45.24 of the Rules of the DIFC Courts (as amended in April 2014) set out the procedure to be followed in seeking to execute DIFC Court judgments, decisions, orders and awards ratified by the DIFC Courts outside of the DIFC(32).

D. Conclusions

57.  The decisions of the DIFC Courts are decisions of one of the courts of the Dubai judicial system and so should be capable of enforcement at least as widely as Dubai Court judgments and orders.

58.  Within the GCC and Riyadh Convention states, France, China and India enforcement will be governed by the treaties currently in place. In many Arab countries, a DIFC Court judgment is likely to confer a significant advantage.

59.  Enforcement further afield will be determined by the laws of the target jurisdiction.

60.  In considering whether to enforce a DIFC Court judgment, a foreign court will generally consider whether the DIFC Court had jurisdiction according to the foreign court’s own criteria. Those criteria may well differ from the provisions of Article 5(A) of the Judicial Authority Law by which the DIFC Court determines its own jurisdiction(33). There may therefore be circumstances in which a foreign court would refuse to enforce a DIFC Court judgment on jurisdiction grounds. However, the same applies to judgments of any other Court. More importantly, in very many courts, the relevant jurisdiction test will be satisfied if the judgment debtor submitted to the jurisdiction, either by means of a jurisdiction agreement or by participation in the proceedings.

61.  In practice, given its relatively recent history, some foreign courts may be slow to recognise the DIFC Courts as part of Dubai’s judicial system. In the circumstances, it may be prudent first to obtain a fast-track enforcement order(34) from the Dubai Courts before then going on to seek enforcement further afield. In time and with experience, it is to be hoped that this first preliminary step will no longer be required.

* Implemented into UAE Law by Federal Decree No. 33 of 2000, however it appears that the Agreement has not however been ratified in India

** Implemented into UAE Law by Federal Decree No. 83 of 2000

*** Implemented into UAE Law by Federal Decree No. 117 of 2009

Footnotes:

(1) Reference should be made to the Dubai Courts and the DIFC Courts Joint Committee which was established in January 2011 to oversee the development of operational protocols regarding jurisdiction and enforcement.

(2) An interesting distinction can be noted between the common law system, which the DIFC Courts to a large extent adopt, and in which judgments can be enforced even where an appeal is still available against them, save where a stay of execution pending appeal is granted; and the civil law system to which the Dubai Courts pertain, and in which judgments cannot be enforced until the time-limits for any available appeals against them have expired, save where an urgent order for execution has been granted.

(3) See Dubai Law No.12 of 2004 in respect of The Judicial Authority at Dubai International Financial Centre.

(4) See Law No. 16 of 2011 Amending Certain Provisions of Law No. 12 of 2004 Concerning the DIFC Courts, which has: (i) further clarified the procedures for the execution of DIFC Court judgments, decisions and orders; and (ii) expanded the jurisdiction of the DIFC Courts, by permitting the DIFC Courts to assert jurisdiction in cases submitted to the DIFC Courts by the agreement of parties in writing before or after the dispute has occurred (even if such parties do not have a nexus with the DIFC) (Article 5 of Law No. 16 of 2011). This expansion of jurisdiction is likely to increase the use of the DIFC Courts by a range of commercial parties in Dubai, the UAE and regionally.

(5) It should be noted that the Protocol served more as “soft law” guidance under UAE law (as such Protocols have no legal status until brought into effect by either Federal or Dubai Ruler’s Decree.

(6) The legal provisions cited in this guide are subject to interpretation by the relevant courts.

(7) The formula of execution affixed by the Courts reads as follows: “Authorities must take the initiative to enforce this document and assist in implementing it even forcefully whenever requested to.”

(8) 8 Civil Procedure [Fed. Law 11 of 1992] as amended – referred to in Article 7(3)(c) of Law No. 12 of 2004 (as amended).

(9) See Article 7(3)(c) of the DIFC Law as amended

(10) In the absence of a bilateral or multilateral treaty.

(11) See the decision of the Dubai Court of Cassation in Arabian Express Lines v Tara Commercial Intermediary, where it was held that an English High Court judgment enforcing a UAE court judgment was needed to be proved to the satisfaction of the Dubai court to have been effected in advance of the UAE enforcing any English court order.

(12) Feedback received from practitioners during consultation attests to relatively smooth procedures for enforcement at the Dubai courts – with DIFC judgments, decisions and orders going straight to execution as per the relevant provisions (Articles 221 and 235) of the UAE Federal Civil Procedures Law.

(13) One such example is the case of Mohammed Usman Saleem v. Oasis Crescent Capital (DIFC) Limited and HSBC Bank Middle East Limited (CFI – enforcement no. 002/2008) – in which a branch of HSBC Bank located outside the DIFC and in Dubai was ordered to freeze the amount of AED 70,809 in the account of the judgment debtor. In this case, a. letter of execution was issued by the DIFC Courts to the Dubai Courts.

(14) The interpretation of the relevant law on these points is still developing and readers would be well advised to consult current case-law and practice to get the most current understanding of enforcement of DIFC Court judgments, decisions and orders.

(15) It has been suggested by some commentators in the legal community that the enforcement of the DIFC judgments, decisions and orders should be enshrined into statute either by way of an update to the UAE Civil Procedure Code or the issuance of a UAE Arbitration Law.

(16) There was also an MOU recently signed between the DIFC Courts and the Kingdom of Jordan.

(17) The exact nature of the DIFC Courts as a judicial body might be described as Sui generis. Though established by an amendment to Article 121 of the UAE Constitution and the Federal and Dubai laws which followed, it does not form part of the Dubai Courts Judicial Council and has to date been reliant on the Dubai Courts for the execution of its judgments and orders outside the DIFC. How Article 7 of the amending Law. No 16 of 2011 might affect the enforcement procedure in the future remains to be seen.

(18) For the applicable procedure to be followed, see Article 7 of Law No. 12 of 2004, as amended.

(19) Article 7 of GCC Convention 1996.

(20) By extension, the courts in the other Emirates of the UAE should also treat DIFC Court judgments, decisions and orders as those emanating from a GCC member state.

(21) Execution Order of 19 January 2011, Enforcement Order No: 02/2012.

(22) This was later revised on 31 January 2012, and the respondents were ordered to enforce a new Order of the Ministry of Justice and Islamic Affairs in Bahrain.

(23) It should be noted that although Riyadh Convention judgments in theory would be directly enforceable in the UAE Execution Courts (see Articles 31 and 32 of the Riyadh Convention in particular) – in practice they have not been directly enforceable, but rather require ratification by a UAE First Instance Court prior to execution. This is the main practical difference between a GCC Convention judgment and a Riyadh Convention judgment, whereby a final judgment of the former is directly enforceable in the Execution court of another GCC state.

(24) By way of example, in the case of Opera Gallery (Dubai) Limited v. Mr Hicham Daoudi (CFI 002-2012), the DIFC Courts assisted in serving a respondent in Morocco through a letter rogatory. In that case the DIFC Courts issued a letter written in Arabic addressed to the Dubai Courts confirming that the Claim Form and Particulars of Claim had been filed and requesting the Dubai Courts to assist with serving the Claim Form on the respondent. This procedure is provided for under RDC 9.51 to 9.63.

(25) Article 32 of the Riyadh Convention.

(26) See http://www.indembassyuae.org/induae_bilateral.phtml, information from Embassy of India in Abu Dhabi

(27) Available on the DIFC Courts’ website at the following link: http://www.difccourts.ae/RulesContent.aspx?pid=4904&t=Memorandum-of-Guidance-on-Enforcement:-DIFC-Courtsand-Commercial-Court-of-England-&-Wales

(28) Available on the DIFC Courts’ website at the following link: http://www.difccourts.ae/RulesContent.aspx?pid=4917&t=Memorandum-of-Guidance-between-the-DIFC-Courts-&-the-Supreme-Courts-of-New-South-Wales

(29) Available on the DIFC Courts’ website at the following link: http://difccourts.complinet.com/net_file_store/new_rulebooks/m/e/Memorandum_of_Guidance_Between_The_
Federal_Court_of_Australia_and_DIFC_Courts.pdf

(30) All Memoranda of Guidance signed by the DIFC Courts are available at the following link: http://difccourts.ae/publications/protocols-and-mous/

(31) However, there is a general presumption that a foreign judgment is conclusive.

(32) See http://difccourts.complinet.com/en/display/display_viewall.html?rbid=2725&element_id=9552 for the applicable Rules of the DIFC Courts (RDC).

(33) Now significantly broadened in scope by Article 5 of Law No. 16 of 2011.

(34) In essence the conversion of a DIFC Courts judgment into one of the Dubai courts for the purposes of enforcement abroad.

Version 4 – last updated 3 January 2016

The post Enforcement Guidelines appeared first on DIFC Courts.

Claim No: CFI 013/2015

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

ABU DHABI ISLAMIC BANK PSJC

                                                                                          Claimant

and

BARCLAYS BANK PLC

Defendant

  ORDER OF JUDICIAL OFFICER NASSIR AL NASSER

UPON reviewing the Claimant’s Application Notice CFI 013/2015-3 dated 7 January 2016 seeking an extension of time to serve the claim form on the Defendant (“the Application”)

AND UPON reviewing the Claimant’s witness statement;

IT IS HEREBY ORDERED THAT:

1. The Claimant’s Application is granted.
2. The Claimant shall serve the Claim Form on the Defendant by no later than Monday, 11 April 2016.
3. There be no order as to costs.

Issued by:

Nassir Al Nasser

Judicial Officer

Date of issue: 11 January 2016

At: 11am

The post CFI 013/2015 Abu Dhabi Islamic Bank Psjc v Barclays Bank Plc appeared first on DIFC Courts.

DRA _Q4 NEWSLETTER 2015

The post DRA Newsletter Q 4 appeared first on DIFC Courts.

Claim No: CFI 026/2009

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BEFORE H.E.  JUSTICE OMAR AL MUHAIRI

BETWEEN

(1) MR RAFED ABDEL MOHSEN BADER AL KHORAFI

(2) MRS AMRAH ALI ABDEL LATIF AL HAMAD

(3) MRS ALIA MOHAMED SULAIMAN AL RIFAI

Claimants

and

(1) BANK SARASIN-ALPEN (ME) LIMITED

(2) BANK SARASIN & CO. LTD

Defendants

ORDER OF H.E. JUSTICE OMAR AL MUHAIRI

UPON reviewing the First Defendant’s Application Notice CFI-026-2009/30 dated 5 November 2015, seeking a stay of the Quantum Order of Deputy Chief Justice Sir John Chadwick issued on 3 November 2015 (“the Application”);

AND UPON reading the relevant material in the case file;

AND UPON hearing Counsel for the Claimants and Counsel for the First Defendant on 6 January 2016;

IT IS HEREBY ORDERED THAT:

1. The First Defendant’s Application for a stay is dismissed.

2. The First Defendant shall pay the sum of USD 35,028,474 into Court within 14 days.

3. The First Defendant shall pay the costs of this application, to be subject to a detailed assessment if not agreed.

Issued by:

Natasha Bakirci

Assistant Registrar

Date of Issue: 18 January 2016

At: 10am

SCHEDULE OF REASONS

Background

1. On 5 November 2015, the First Defendant filed Application Notice CFI-026-2009/30 seeking an order pursuant to Rule 44.4 of the Rules of the DIFC Courts (RDC) that a stay be granted of the payments ordered by paragraphs 1 and 4 of the Order of Deputy Chief Justice (DCJ) Sir John Chadwick issued on 3 November 2015 (“Quantum Order”) in CFI 026/2009 until the order made by the Court of Appeal following the determination of the liability aspects of appeal CA 003/2015 or until further order of the Appeal Court. The First Defendant also seeks an order that the Claimants pay the First Defendant’s costs of the current application.

2. This Application stems from a 2009 case brought by the Claimants against the First and Second Defendants in relation to USD 200 million in allegedly bad investments structured by the Defendants and sold to the Claimants. On 21 August 2014 DCJ Sir John Chadwick found that the First and Second Defendants were guilty of mis-selling the investments to the Claimants (“Liability Judgment”) and in an Order dated 28 October 2014 ordered the Defendants to pay USD 10.4 million to the Claimants, as well as a further USD 1 million in costs and set a timetable for the determination of the final damages claims (“Liability Order”). The Defendants sought to appeal the Liability Order on 6 November 2014 (“Liability Appeal”).

3. In the Quantum Order of 3 November 2015, DCJ Sir John Chadwick ordered that the First and Second Defendants jointly and severally pay further damages to the Claimants in the amount of USD 24,583,425 and that the First Defendant pay additional damages in the amount of USD 35,028,474. Additionally, the Defendants were ordered to pay interest on the losses jointly and severally from 8 October 2008 until 11 November 2014. This Quantum Order came down as a result of the judgment of 7 October 2015 (“Quantum Judgment”) following the Quantum Determination hearing.

4. On 22 October 2015, the Defendants sought permission to appeal the Quantum Order which was granted on 9 November 2015 by Chief Justice Michael Hwang.

5. Consequently, the First Defendant filed the current Application on 5 November 2015 seeking a stay of the Quantum Order, particularly paragraphs 1, 2 and 4 pending the Court of Appeal’s judgment on the Liability Appeal in CA 003/2015.

Permission to Stay the Appeal

6. The First Defendant argues in its Skeleton Argument that according to English case law, the Court must consider all the circumstances of the case and weigh the risks in refusing a stay against the risks of granting the stay and opt for the course which presents the lesser risk. The risk according to the First Defendant is that the Claimants will be unable or unwilling to repay any sums paid by the First Defendant under the Quantum Order. The Defendant also adds that it has a “very strong appeal against” the Quantum Judgment.

7. In response to this, the Claimants maintain that a stay of a first instance order is the exception rather than the rule and that the burden is on the applicant to demonstrate that there are solid grounds for the Court to depart from usual practice and order a stay. Citing DEFRA v Downs [2009] EWCA Civ 257, the Claimants argue that the applicant must show that there would be “some form of irremediable harm if no stay [was] granted.”

8. As to the argument that the Claimants will be unable or unwilling to repay any sums paid by the First Defendant, the Claimants in their Skeleton Argument point out that they have accepted that the First Defendant can “pay the money due under the Quantum Order into Court, pending the outcome of the appeal.” In regards to the argument regarding the strength of the First Defendant’s appeal, the Claimants note that this Court has not been provided with the First Defendant’s Skeleton Arguments in support of its appeal and therefore cannot make an allegation one way or the other as to the strength of the appeal. As such, the Claimants ask that the Court dismiss this Application and rule that the sums due by the First Defendant under the Quantum Order be paid into the Court within 7 days.

Discussion

9. Pursuant to RDC 44.4, unless there is an order otherwise, an appeal does not operate as a stay of any order or decision when permission to appeal has been sought. According to Article 33 of the DIFC Court Law 2004 (DIFC Law No. 10 of 2004), the Court may stay any decision, order or proceeding “if it considers it appropriate.” The stay is not automatic; rather, there is a general discretion that may be exercised in making an order to stay a judgment pending an appeal when appropriate.

10. I am not satisfied that the First Defendant made an argument nor provided evidence strong enough to warrant a stay of the Quantum Order of DCJ Sir John Chadwick issued on 3 November 2015 pending the Liability Appeal. The main issues cited in favour of a stay were the risk that the Claimants may be unwilling or unable to repay the damages paid by the First Defendant, as well as the argument that there is a very strong appeal against the Liability Judgment.

11. As explained by the Claimants’ Skeleton Argument, the Claimants have stated that the First Defendant may pay the money due under the Quantum Order into the Court’s escrow account. As to the strength of the Liability Appeal as well as the appeal to the Quantum Order, the purported strength of an appeal that has not yet been litigated much less submitted to the Court has no bearing as to whether a stay of an order is appropriate.

12. As a result, the First Defendant’s Application is denied in full and I order the First Defendant to comply with the Quantum Order requiring it to pay the remaining sum of USD 35,028,474 into the Court within 14 days.

13. As an aside, the Claimants suggest that not only should this Application be dismissed, and that the First Defendant should pay into the Court the full amount due under the Quantum Order but also that the First Defendant should not be entitled to any credit for sums paid by the Second Defendant into Court as condition of the Second Defendant’s appeal. This reasoning is incorrect. As DCJ Sir John Chadwick states in paragraph 3 of the Quantum Order, “The Defendants are to be jointly and severally liable for payment of USD 24,583,425…The First Defendant alone is to be liable for payment of USD 35,028,474…” [Emphasis added]. The Second Defendant has previously paid the amount of USD 24,583,425 into the Court, relieving the First Defendant of this amount. The amount still owed (and owed solely by the First Defendant) is the USD 35,028,474 that should be paid into Court within ­­­14 days.

Costs

14. The final issue to be decided is the question of costs. According to RDC 38.7, if the Court decides to make an order on costs, the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party. I am satisfied that the First Defendant, as the unsuccessful party in this case, should pay the costs, and be subject to a detailed assessment if not agreed.

Issued by:

Natasha Bakirci

Assistant Registrar

Date of Issue: 18 January 2016

At: 10am

The post CFI 026/2009 (1) Mr Rafed Abdel Mohsen Bader Al Khorafi (2) Mrs Amrah Ali Abdel Latif Al Hamad (3) Mrs Alia Mohamed Sulaiman Al Rifai v (1) Bank Sarasin-Alpen (ME) Limited (2) Bank Sarasin & Co. Ltd appeared first on DIFC Courts.

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

PRACTICE DIRECTION NO. 1 OF 2016

Practitioners’ Duties to the Court – Filing of Witness Statements by Lawyers employed by Part I Law Firms

Citation

This Practice Direction will come into effect on the date of signature. It may be cited as Practice Direction 1 of 2016 – Practitioners’ Duties to the Court – Filing of Witness Statements by Lawyers employed by Part I Law Firms and may be abbreviated to PD 1/2016.

1. This Practice Direction should be read in the light of the Mandatory Code of Conduct for Legal Practitioners in the DIFC Courts, in particular Part B – Duties Owed to the Court, paragraph 6, which provides as follows:

“Practitioners shall not appear as advocate or otherwise conduct proceedings before the Court in any matter in which they have reason to believe they may be a witness, save where any evidence they may give is likely to be purely formal or uncontroversial.”

2.1 As a general rule, law firms which are representing a party through Part I of the Register of Practitioners in proceedings before the DIFC Courts should not permit lawyers who are employed by them (“lawyers”) to file witness statements in such proceedings unless:

(a) The contents of the witness statement are formal or uncontroversial; or

(b) The witness statement has been submitted solely for the purposes of introducing documents without any factual evidence being given with regard to the merits of the case;

However, lawyers are permitted to file witness statements concerning their own personal knowledge of events happening within the context of the court proceedings after they have commenced. Even in such cases, where the lawyer’s witness statement asserts facts which are likely to be controversial, another lawyer should present the arguments relating to those facts.

(i) Exceptionally, and where the Court considers it appropriate in the circumstances, lawyers registered in Part 1 of the Register of Practitioners may be allowed to swear an affidavit, annexing the draft affidavit of their witness and undertaking to file a sworn copy of the witness’ affidavit as soon as practicable.

(ii) This may be where the first-hand witness cannot be contacted. The lawyer may then choose to file a witness statement alleging certain facts based on what has been conveyed to him, and identifying the source of that information.

2.2 All these cases above should be read as being exceptions to the general rule.

3. Where any lawyer files a factual witness statement which does not conform with 2.1 above, the Court may discount the evidentiary weight of that witness statement for lack of first-hand knowledge.

4. Where a lawyer purports to give an expert opinion in support of his/her firm’s client’s case, the Court will consider that opinion to constitute part of Counsel’s arguments and may likewise discount the opinion as expert evidence for lack of independence.   However, the Court may still take the opinion into account in arriving at its decision, but relying on that opinion only as a submission.

Dated this 20 day of January 2016

Chief Justice Michael Hwang

The post Practice Direction 1 of 2016 – Practitioners’ Duties to the Court – Filing of Witness Statements by Lawyers employed by Part I Law Firms appeared first on DIFC Courts.

Claim No: CFI 026/2009

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF APPEAL

BEFORE H.E.  JUSTICE OMAR AL MUHAIRI

BETWEEN

(1) MR RAFED ABDEL MOHSEN BADER AL KHORAFI

(2) MRS AMRAH ALI ABDEL LATIF AL HAMAD

(3) MRS ALIA MOHAMED SULAIMAN AL RIFAI

Claimants

and

(1) BANK SARASIN-ALPEN (ME) LIMITED

(2) BANK SARASIN & CO. LTD

Defendants

ORDER OF H.E. JUSTICE OMAR AL MUHAIRI

UPON reviewing the First Defendant’s Application Notice CFI-026-2009/30 dated 5 November 2015, seeking a stay of the Quantum Order of Deputy Chief Justice Sir John Chadwick issued on 3 November 2015 (“the Application”);

AND UPON reading the relevant material in the case file;

AND UPON hearing Counsel for the Claimants and Counsel for the First Defendant on 6 January 2016;

IT IS HEREBY ORDERED THAT:

1. The First Defendant’s Application for a stay is dismissed.

2. The First Defendant shall pay the sum of USD 35,028,474 into Court within 14 days.

3. The First Defendant shall pay the costs of this application, to be subject to a detailed assessment if not agreed.

Issued by:

Natasha Bakirci

Assistant Registrar

Date of Issue: 18 January 2016

Date of Re-issue: 21 January 2016

At: 10am

SCHEDULE OF REASONS

Background

1. On 5 November 2015, the First Defendant filed Application Notice CFI-026-2009/30 seeking an order pursuant to Rule 44.4 of the Rules of the DIFC Courts (RDC) that a stay be granted of the payments ordered by paragraphs 1 and 4 of the Order of Deputy Chief Justice (DCJ) Sir John Chadwick issued on 3 November 2015 (“Quantum Order”) in CFI 026/2009 until the order made by the Court of Appeal following the determination of the liability aspects of appeal CA 003/2015 or until further order of the Appeal Court. The First Defendant also seeks an order that the Claimants pay the First Defendant’s costs of the current application.
2. This Application stems from a 2009 case brought by the Claimants against the First and Second Defendants in relation to USD 200 million in allegedly bad investments structured by the Defendants and sold to the Claimants. On 21 August 2014 DCJ Sir John Chadwick found that the First and Second Defendants were guilty of mis-selling the investments to the Claimants (“Liability Judgment”) and in an Order dated 28 October 2014 ordered the Defendants to pay USD 10.4 million to the Claimants, as well as a further USD 1 million in costs and set a timetable for the determination of the final damages claims (“Liability Order”). The Defendants sought to appeal the Liability Order on 6 November 2014 (“Liability Appeal”).
3. In the Quantum Order of 3 November 2015, DCJ Sir John Chadwick ordered that the First and Second Defendants jointly and severally pay further damages to the Claimants in the amount of USD 24,583,425 and that the First Defendant pay additional damages in the amount of USD 35,028,474. Additionally, the Defendants were ordered to pay interest on the losses jointly and severally from 8 October 2008 until 11 November 2014. This Quantum Order came down as a result of the judgment of 7 October 2015 (“Quantum Judgment”) following the Quantum Determination hearing.
4. On 22 October 2015, the Defendants sought permission to appeal the Quantum Order which was granted on 9 November 2015 by Chief Justice Michael Hwang.
5. Consequently, the First Defendant filed the current Application on 5 November 2015 seeking a stay of the Quantum Order, particularly paragraphs 1, 2 and 4 pending the Court of Appeal’s judgment on the Liability Appeal in CA 003/2015.

Permission to Stay the Appeal

6. The First Defendant argues in its Skeleton Argument that according to English case law, the Court must consider all the circumstances of the case and weigh the risks in refusing a stay against the risks of granting the stay and opt for the course which presents the lesser risk. The risk according to the First Defendant is that the Claimants will be unable or unwilling to repay any sums paid by the First Defendant under the Quantum Order. The Defendant also adds that it has a “very strong appeal against” the Quantum Judgment.
7. In response to this, the Claimants maintain that a stay of a first instance order is the exception rather than the rule and that the burden is on the applicant to demonstrate that there are solid grounds for the Court to depart from usual practice and order a stay. Citing DEFRA v Downs [2009] EWCA Civ 257, the Claimants argue that the applicant must show that there would be “some form of irremediable harm if no stay [was] granted.”
8. As to the argument that the Claimants will be unable or unwilling to repay any sums paid by the First Defendant, the Claimants in their Skeleton Argument point out that they have accepted that the First Defendant can “pay the money due under the Quantum Order into Court, pending the outcome of the appeal.” In regards to the argument regarding the strength of the First Defendant’s appeal, the Claimants note that this Court has not been provided with the First Defendant’s Skeleton Arguments in support of its appeal and therefore cannot make an allegation one way or the other as to the strength of the appeal. As such, the Claimants ask that the Court dismiss this Application and rule that the sums due by the First Defendant under the Quantum Order be paid into the Court within 7 days.

Discussion

9. Pursuant to RDC 44.4, unless there is an order otherwise, an appeal does not operate as a stay of any order or decision when permission to appeal has been sought. According to Article 33 of the DIFC Court Law 2004 (DIFC Law No. 10 of 2004), the Court may stay any decision, order or proceeding “if it considers it appropriate.” The stay is not automatic; rather, there is a general discretion that may be exercised in making an order to stay a judgment pending an appeal when appropriate.
10. I am not satisfied that the First Defendant made an argument nor provided evidence strong enough to warrant a stay of the Quantum Order of DCJ Sir John Chadwick issued on 3 November 2015 pending the Liability Appeal. The main issues cited in favour of a stay were the risk that the Claimants may be unwilling or unable to repay the damages paid by the First Defendant, as well as the argument that there is a very strong appeal against the Liability Judgment.

11. As explained by the Claimants’ Skeleton Argument, the Claimants have stated that the First Defendant may pay the money due under the Quantum Order into the Court’s escrow account. As to the strength of the Liability Appeal as well as the appeal to the Quantum Order, the purported strength of an appeal that has not yet been litigated much less submitted to the Court has no bearing as to whether a stay of an order is appropriate.

12. As a result, the First Defendant’s Application is denied in full and I order the First Defendant to comply with the Quantum Order requiring it to pay the remaining sum of USD 35,028,474 into the Court within 14 days.

13. As an aside, the Claimants suggest that not only should this Application be dismissed, and that the First Defendant should pay into the Court the full amount due under the Quantum Order but also that the First Defendant should not be entitled to any credit for sums paid by the Second Defendant into Court as condition of the Second Defendant’s appeal. This reasoning is incorrect. As DCJ Sir John Chadwick states in paragraph 3 of the Quantum Order, “The Defendants are to be jointly and severally liable for payment of USD 24,583,425…The First Defendant alone is to be liable for payment of USD 35,028,474…” [Emphasis added]. The Second Defendant has previously paid the amount of USD 24,583,425 into the Court, relieving the First Defendant of this amount. The amount still owed (and owed solely by the First Defendant) is the USD 35,028,474 that should be paid into Court within ­­­14 days.

Costs

14. The final issue to be decided is the question of costs. According to RDC 38.7, if the Court decides to make an order on costs, the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party. I am satisfied that the First Defendant, as the unsuccessful party in this case, should pay the costs, and be subject to a detailed assessment if not agreed.

Issued by:

Natasha Bakirci

Assistant Registrar

Date of Issue: 18 January 2016

Date of Re-issue: 21 January 2016

At: 10am

The post CFI 026/2009 (1) Mr Rafed Abdel Mohsen Bader Al Khorafi (2) Mrs Amrah Ali Abdel Latif Al Hamad (3) Mrs Alia Mohamed Sulaiman Al Rifai v (1) Bank Sarasin-Alpen (ME) Limited (2) Bank Sarasin & Co. Ltd appeared first on DIFC Courts.

Claim No: CFI-008-2015

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BOCIMAR INTERNATIONAL N.V.

Claimant

and

EMIRATES TRADING AGENCY LLC

Defendant

 CONSENT ORDER

UPON THE CLAIM in these proceedings for judgment to be entered in respect of the judgment debts arising under the orders made on 17 July 2014 by the High Court of England and Wales pursuant to section 66 of the Arbitration Act 1996 (respectively, “the First Order and “the Second Order” as more particularly described in the Claim Form issued on 30 March 2015) (“the Claim”) AND THE APPLICATION made on behalf of the Defendant on 27 April 2015 under reference CFI-008-2015/1 (“the Application”) BEING LISTED FOR HEARING together by this Court on 25 and 26 January 2016

AND UPON READING the letter dated 19 January 2016 from the Defendant’s legal representatives and the response of the Claimant thereto (by letter of the same date from its legal representatives)

AND UPON the Defendant seeking permission to withdraw the Application and not opposing the relief sought in the Claim

BY CONSENT IT IS ORDERED THAT:

1. The Application is dismissed.
2. The Defendant shall within 14 days of the date of this Order pay to the Claimant the following sums due under the First Order:

   (i) US$29,214,148.33 in respect of principal sums and interest as at 7 July 2014;
   (ii) US$934,330.49 in respect of interest accruing from 7 July 2014 to 5 March 2015;
   (iii)US$1,236,654.54 in respect of interest accruing from 6 March 2015 to 19 January 2016;
   (iv) Interest accruing at a rate of US$3876.66 per day thereafter until the date of payment of the sums set out in sub-paragraph 2(i); and
   (v) US$8,666.54 in respect of the costs awarded under paragraph 4 of the First Order

3. The Defendant shall within 14 days of the date of this ORder pay to the Claimant the following sums in respect of the Second Order:

   (i) US$81,629,201.91 in respect of principal sums and interest as at 7 July 2014;
   (ii) US$2,483,037.46 in respect of interest accruing from 7 July 2014 to 5 March 2015;
   (iii) US$3,286,676.14 in respect of interest accruing from 6 March 2015 to 19 January 2016;
   (iv) Interest accruing at a rate of US$10,303.06 per day thereafter until the date of payment of the sums set out in sub-paragraph 3(i); and
   (v) US$8,666.54 in respect of the costs awarded under paragraph 4 of the Second Order

4. The Defendant shall pay to the Claimant its costs of and incidental to the Claim and the Application on the indemnity basis, such costs to be subject to detailed assessment if not agreed.

AND THE COURT FURTHER ORDERS THAT: 

5. No further proceedings or applications shall be commenced or issued in this Court by or on behalf of the Defendant in respect of or relating to the judgment debts arising under the First Order or the Second Order without the leave of the Court first being obtained. A request (if any) for such leave (to which the Claimant is not required to respond unless the Court otherwise directs) is to be made in writing and is to be determined on the papers without an oral hearing (again, unless the Court otherwise directs).

Issued by:

Natasha Bakirci

Assistant Registrar

Date of issue: 26 January 2016

At: 3pm

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

Claim No: CFI-014-2015

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

ORIENT INSURANCE PJSC

Claimant

and

(1) ABN AMRO BANK N.V.

(2) BANK OF BARODA

(3) CITI BANK N.A.

(4) CREDIT SUISSE AG

(5) EMIRATES NBD BANK PJSC

(6) MASHREQ BANK PJSC

(7) NOOR ISLAMIC BANK PJSC

(8) GLINTS GLOBAL GENERAL TRADING LLC

Defendants

CONSENT ORDER

UPON the Sixth and Seventh Defendants having filed Application Notice CFI-014-2015/3 and CFI-014-2015/2, respectively, dated 4 October 2015 disputing the jurisdiction of the DIFC Courts

AND UPON the Claimant having commenced ICC arbitration proceedings registered under ICC reference 21435/ZF against the First to Eighth Defendants

IT IS HEREBY ORDERED BY CONSENT THAT:

1. The matters in these proceedings between the Claimant and Sixth and Seventh Defendants are the subject of ICC arbitration.

2.The proceedings be stayed, pursuant to Article 13 of the DIFC Arbitration Law, in favour of ICC arbitration.

3. The Claimant shall pay the Sixth Defendant’s costs in the application in the sum of AED 85,000 within 28 days of the date of this Order.

4. The Claimant shall pay the Seventh Defendant’s costs in the application in the sum of AED 90,000 within 28 days of the date of this Order.

Issued by:

Natasha Bakirci

Assistant Registrar

Date of issue: 27 January 2016

At: 4pm

The post CFI 014/2015 Orient Insurance Pjsc v (1) ABN Amro Bank N.V. (2) Bank of Baroda (3) CITI Bank N.A. (4) Credit Suisse AG (5) Emirates NBD Bank Pjsc appeared first on DIFC Courts.

Claim No: CFI-014-2015

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

ORIENT INSURANCE PJSC

Claimant

and

(1) ABN AMRO BANK N.V.

(2) BANK OF BARODA

(3) CITI BANK N.A.

(4) CREDIT SUISSE AG

(5) EMIRATES NBD BANK PJSC

(6) MASHREQ BANK PJSC

(7) NOOR ISLAMIC BANK PJSC

(8) GLINTS GLOBAL GENERAL TRADING LLC

Defendants

CONSENT ORDER

UPON the Sixth and Seventh Defendants having filed Application Notice CFI-014-2015/3 and CFI-014-2015/2, respectively, dated 4 October 2015 disputing the jurisdiction of the DIFC Courts

AND UPON the Claimant having commenced ICC arbitration proceedings registered under ICC reference 21435/ZF against the First to Eighth Defendants

IT IS HEREBY ORDERED BY CONSENT THAT:

1 The matters in these proceedings between the Claimant and Sixth and Seventh Defendants are the subject of ICC arbitration.

2 The proceedings be stayed, pursuant to Article 13 of the DIFC Arbitration Law, in favour of ICC arbitration.

3 The Claimant shall pay the Sixth Defendant’s costs in the application in the sum of AED 85,000 within 28 days of the date of this Order.

4 The Claimant shall pay the Seventh Defendant’s costs in the application in the sum of AED 90,000 within 28 days of the date of this Order.

Issued by:

Natasha Bakirci

Assistant Registrar

Date of issue: 27 January 2016

At: 4pm

The post CFI 014/2015 Orient Insurance Pjsc v (1) ABN Amro Bank N.V. (2) Bank of Baroda (3) CITI Bank N.A. (4) Credit Suisse AG (5) Emirates NBD Bank Pjsc appeared first on DIFC Courts.

Claim No: CFI-014-2015

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

ORIENT INSURANCE PJSC

Claimant

and

(1) ABN AMRO BANK N.V.

(2) BANK OF BARODA

(3) CITI BANK N.A.

(4) CREDIT SUISSE AG

(5) EMIRATES NBD BANK PJSC

(6) MASHREQ BANK PJSC

(7) NOOR ISLAMIC BANK PJSC

(8) GLINTS GLOBAL GENERAL TRADING LLC

Defendants

CONSENT ORDER

UPON the Fifth Defendant having filed Application Notice CFI-014-2015/1 dated 4 October 2015 disputing the jurisdiction of the DIFC Courts

AND UPON the Claimant having commenced ICC arbitration proceedings registered under ICC reference 21435/ZF against the First to Eighth Defendants

IT IS HEREBY ORDERED BY CONSENT THAT:

1. The matters in these proceedings between the Claimant and Fifth Defendant are the subject of ICC arbitration.

2. The proceedings be stayed, pursuant to Article 13 of the DIFC Arbitration Law, in favour of ICC arbitration.

3. The Claimant shall pay the Fifth Defendant’s costs in the application in the sum of AED 275,000 within 28 days of the date of this Order.

Issued by:

Natasha Bakirci

Assistant Registrar

Date of issue: 27 January 2016

At: 4pm

The post CFI 014/2015 Orient Insurance Pjsc v (1) ABN Amro Bank N.V. (2) Bank of Baroda (3) CITI Bank N.A. (4) Credit Suisse AG (5) Emirates NBD Bank Pjsc (6) Mashreq Bank Pjsc (7) Noor Islamic Bank Pjsc (8) Glints Global General Trading LLC appeared first on DIFC Courts.

Claim No: CFI-036-2014

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BEFORE H.E. JUSTICE ALI AL MADHANI

BETWEEN

VANNIN CAPITAL PCC PLC

for and on behalf of protected cell – Project Ramsey

                                                                                          Claimant

and

(1) MR RAFED ABDEL MOHSEN BADER AL KHORAFI

(2) MRS AMRAH ALI ABDEL LATIF AL HAMAD

(3) MRS ALIA MOHAMED SULAIMAN AL RIFAI

(4) KBH KAANUUN LIMITED

(5) BANK SARASIN-ALPEN (ME) LIMITED

(6) BANK J. SAFRA SARASIN LTD (FORMERLY BANK SARASIN & CO LIMITED)

Defendants

ORDER OF H.E. JUSTICE ALI AL MADHANI

UPON reviewing Application Notice CFI-036-2014/3 filed by the First to Third Defendants on 10 June 2015 seeking: (i) a variation of the Order of H.E. Justice Omar Al Muhairi dated 10 November 2014 (the “First Application”); (ii) a stay of DIFC-LCIA arbitral proceedings (the “Second Application”); and (iii) a dismissal of the tribunal in the DIFC-LCIA arbitral proceedings (the “Third Application”)

AND UPON reviewing Application Notice CFI-036-2014/4 filed by the Claimant on 11 June 2015 seeking: (i) service of the First Application on the Fifth and Sixth Defendants in redacted form; and (ii) a dismissal of the Second Application and the Third Application on jurisdictional grounds (the “Vannin Application”)

AND UPON hearing Counsel for the Claimant, Counsel for the Khorafis, Counsel for the Fourth Defendant and Counsel for Bank Sarasin on 29 July 2015

IT IS HEREBY ORDERED THAT:

1. The First Application is dismissed.
2. The Second Application is dismissed.
3. The Third Application is dismissed.
4. The Vannin Application is granted.
5. The First to Third Defendants shall pay the costs of the Second Application and the Third Application on the standard basis, to be assessed by the Registrar if not agreed.
6. The parties shall file submissions of a maximum of four pages on costs relating to the First Application, specifically on costs related to the Fifth and Sixth Defendants’ involvement up to the hearing date, within 7 days of the date of this Order.

REASONS FOR THE ORDER 

Introduction

1. This judgment deals with the two applications brought by the First, Second and Third Defendants (the “Khorafis”) made on 10 June 2015 (the “First Application”) for an order varying the order of HE Justice Omar Al Muhairi of 10 November 2014 (the “Preservation Order”) so that:

(i) USD 945,593.00 out of the sums paid into Court by the Fifth and Sixth Defendants (“Bank Sarasin”) by way of payment on account of damages (USD 10,400,000) and an interim award of costs (USD 1,000,000) (together the “Interim Payment”) in proceedings brought by the Khorafis against Bank Sarasin (the “Main Action”) be paid to the Khorafis and their present lawyers, Hamdan Al Shamsi (“HAS”); and

(ii) USD 2,000,000 to be held in Court (at the discretion of the Court) representing the First Tranche Payment to the Second Respondent KBH Kaanuun, under the CFI-035-2014 Consent Order, dated 9 February 2015; and

(iii) Only insofar as any further damages are awarded against and paid by Bank Sarasin should such further sums be held in Court as security for the claims of the Claimant (“Vannin”), which funded the Khorafis in the Main Action, and Fourth Defendant (“KBH”) which acted for them in that action.

2. The Khorafis’ further application (the “Second Application”) is in respect of DIFC-LCIA arbitral proceedings under reference D-L-14045 (the “Arbitration”) pursued by Vannin for payment of sums due under its Restated Litigated Funding Agreement (the “RLFA”) with the Khorafis and KBH for:

(i) An order that the Arbitration be stayed until further Order of the Court; or

(ii) A declaration that the tribunal in the Arbitration (the “Tribunal”) has no jurisdiction (the “Third Application”).

3. In addition to the submissions Vannin brought forth defending against the above applications by the Khorafis, Vannin submitted an application (the “Vannin Application”) dated 11 June 2015 seeking:

(i) Service of the First Application, in a redacted form, on Bank Sarasin; and

(ii) The dismissal of the Second and Third Applications for relief which the Court has no jurisdiction to grant.

4. In the first part of this judgment I will deal with the First Application and the first part of Vannin’s Application in regards to the service of the First Application on Bank Sarasin. I will summarise the parties’ submissions in that regard before presenting my view and judgment.

5. In the second part of my judgment I shall deal with the Second Application and the Third Application and this Court’s power to intervene in the concerned arbitral proceeding.

6. Costs shall be dealt with after inviting the parties to submit short submissions in this regard.

The First Application

7. Vannin submitted a Claim Form on 3 November 2014 which sought interim relief to preserve the Interim Payment that Deputy Chief Justice Sir John Chadwick ordered Bank Sarasin to make to the Khorafis by his Interim Order of 28 October 2015 (the “Interim Order”) in the matter CFI-026-2009 after the same judge had found Bank Sarasin liable to the Khorafis for various regulatory breaches in his judgment of 21 August 2014 in the main action (the “Trial Judgment”).

8. The Interim Order consisted of USD 10,445,049 for the Khorafis’ losses when their investments were ‘closed out’, which were an agreed sum; and USD 1,000,000 as an interim payment on account of the Khorafis’ costs.

9. Vannin’s ground for that claim and interim application was on the basis of its entitlement (in part with KBH) to the full amount of that payment and indeed its beneficial ownership of its entitlement under trusts declared in the RLFA.

10. That application was supported by KBH in its own application (the “KBH Application”) of 6 November 2014, also seeking an order that the Interim Payment be paid into the Court pending a further order of the Court.

11. On 10 November 2014 H.E. Justice Omar Al Muhairi in his Judgment granted Vannin’s request and ordered that the funds held by this Court should only be released if Vannin, the Khorafis and KBH agree as to the division of those funds, or there is a relevant order as to their respective entitlements based on an arbitral award to determine such matters, or pursuant to an order of any competent court.

12. E. Justice Omar Al Muhairi in the same judgment dismissed a cross-application submitted by the Khorafis on 4 November 2014 arguing that the Court had no jurisdiction to make the Preservation Order.

13. On 10 June 2015 the Khorafis brought this application, the First Application, to vary the Preservation Order, as stated above.

14. In the First Application, the Khorafis sought a court order to vary the Order of Justice Omar Al Muhairi dated 10 November 2014 as follows:

(i) The adjudged sums of USD 10,445,049 and USD 1,000,000 together with any interest thereon be payable from the monies awarded to the Claimants in CFI 026/2009 and paid by Bank Sarasin Alpen (ME) Limited and Bank J. Safra Sarasin Limited (formerly Bank Sarasin & Co Limited) (“the Defendants in the Main Proceedings”) as partial compensation and as interim payment of costs respectively (“the Interim Judgment Sum”), by the order of the Deputy Chief Justice Sir John Chadwick dated 28 October 2014 and currently preserved by the Preservation Order of H.E. Justice Omar Ali Muhairi dated 10 November 2014 in CFI 036/2014 (“the Interim Preservation Order”).

(ii) USD 945,593.00 in support of third party disbursements under the CFI 035/2014 Consent Order dated 9 February 2015 to be paid to the Second Respondent in terms of its obligations under that Order.

(iii) USD 2,000,000 to be held in Court (at the discretion of the Court) representing the First Tranche Payment to the Second Respondent KBH Kaanuun, under the CFI 035/2014 Consent Order, dated 9 February 2015.

(iv) The balance, or such sum as the Court deems appropriate, to be paid to the Applicants in accordance with their entitlement to damages and costs from the CFI 026/2009 proceedings, as determined by the order of Deputy Chief Justice Sir John Chadwick dated 28 October 2014.

(v) Security for the claims of the First (Vannin) and Second (KBH) Respondents to be provided from any further award of damages to be paid under CFI 026/2009.

(vi) Security for the claim by the First Respondent for the sum of USD 10,122,724.30, with that sum protected and paid into Court (the Further Preservation Order) as a first charge from any further award of damages to be paid under CFI 026/2009. That sum (or part thereof) shall be paid to the First Respondent in accordance with the final determination of any Court or Arbitral Tribunal as to the amount due to the First Respondent.

(vii) Security for the claim by the Second Respondent for the sum of USD 2,000,000 with that protected sum paid into Court as a first charge from any further award of damages. That sum (or part thereof) shall be paid to the First Respondent in accordance with the final determination of any Court or Arbitral Tribunal as to the amount due to the First Respondent. This sum being the same monies, and not in addition, to the monies to be held under the CFI 035/2014 Consent Order dated 9 February 2015.

(viii) This order should be read together with, and in any event subject to, the order of Justice Roger Giles made in CFI 026/2015 dated 5 April 2015.

15. The Khorafis applied for the stated relief in regards to the distribution of the Interim Fund and supported it with an Application Notice, Skeleton Argument, Draft Statement of Case and evidence including the Witness Statement of Mr Mohammed Nour and a vast number of documents, very few of which were referred to in the hearing.

16. The draft Statement of Case deals mainly with the merits of the contractual relationship between the parties in the Litigating Funding Agreement (LFA) and the Restated Litigating Funding Agreement (RLFA). It does not address the fact that it is unsigned and not followed by a statement of truth. The reasoning behind it being submitted is not clear to anyone in the proceedings. It does not deal with the application at hand and has no reference to it nor did it put forth any grounds or reasoning as to why the Khorafis are entitled to the remedy they are seeking in the current application. Accordingly, I find that it is not relevant to the current application.

17. The first argument put forth by the Khorafis to support this application is that they are entitled to such relief because it is in the interests of justice to grant such relief and they referred the Court to Rule 25.6(1) and Rule 25.7(2)(b) of the Rules of the DIFC Courts (“RDC”) with directions as to filing the Claim under RDC 25.7(3). Rules 25.6 and 25.7 read as follows:

“25.6 An order for an interim remedy may be made at any time, including:

(1) before proceedings are started; and

(2) after judgment has been given.

25.7 However:

(1) Rule 25.6 is subject to any Rule, Practice Direction or other enactment which provides otherwise;

(2) the Court may grant an interim remedy before a claim has been made only if:

(a) the matter is urgent; or

(b) it is otherwise desirable to do so in the interests of justice; and

(c) unless the Court otherwise orders, a defendant may not apply for any of the orders listed in Rule 25.1 before he has filed either an acknowledgment of service or a defence.

(3) Where the Court grants an interim remedy before a claim has been commenced, it may give directions requiring a claim to be commenced.

(4) In particular, the Court need not direct that a claim be commenced where the application is made for production of documents or inspection of property before a claim is made.”

18. With reference to the Witness Statement of Mr Mohammed Nour, the Khorafis argue that they are entitled to liabilities of up to USD 3.5 million in addition to the liability towards KBH. It is argued that if the fund is not paid the Khorafis will not be able to pay the attorney fees for the upcoming Court of Appeal hearing which conflicts with the Court’s overriding objective, “ensuring that the parties are on an equal footing” as put forth in RDC 1.6(1).

19. The Khorafis assert that as the Respondents in the appeal brought by Bank Sarasin who have made sequential applications to the Court, they are compelled to expend money whilst their money in the preserved fund in the Court is denied to them. The Khorafis further argue that without a release of funds, the Court of Appeal hearing will have to be adjourned which is against the interests of justice.

20. The applicant’s second argument is that there is a powerful reason in the List of Reasons dated 30 October 2015 by Deputy Chief Justice Sir John Chadwick at paragraph 20 to release all of the interim funds; which is the purpose for which they were given in the first place.

“20. …It is common practice in this court, as in other courts exercising commercial jurisdiction, to recognize that a party who has obtained the benefit of an order for costs in his favour should not be kept out of his money longer than is necessary while the process of assessment grinds through.”

21. The decision of the Deputy Chief Justice Sir John Chadwick is a powerful authority for the proposition that the interests of the Khorafis, unpaid lawyers and experts, and the interests of the litigation should be favoured over the contingent interests of Vannin, provided that the interests of Vannin can be adequately safeguarded. The same reasoning must apply to the award of damages.

22. In order to assess the interests of justice, the Khorafis suggest that it is appropriate to look at the strength of the case between the parties. A high degree of need might have to be balanced against a weak case overall. As set out below, the Khorafis possess a high degree of need, and a very strong claim against Vannin.

23. The Khorafis contend that they are asset rich and (relatively) cash poor. They have sold assets since August 2014 and paid USD 1.1 million on account of fees and will pay a further USD 500,000 in two months. That is a very considerable effort. The conundrum is that if they sell their income-producing assets, their ability to produce income will suffer.

24. The third argument put forth by the Khorafis is that there is no need for an undertaking nor is there any risk in regards to the repayment if the court frees the preserved money for them. The Appellants presented two possible conclusions for these proceedings:

(i) If this application for the Interim Fund is granted, but the substantive case against Vannin fails, and Vannin are owed USD 10.4 million, the answer is simple. It would be paid off by Bank Sarasin if the appeal is dismissed.

(ii) If Bank Sarasin win the appeal, Vannin will have no issues to claim. They would be barred from entitlement. No repayment issues would therefore arise according to the LFA.

25. In the remainder of the Khorafis submissions it was argued that the Khorafis have a strong arguable case compared with Vannin and KBH’s position when it comes to the standards of proof in this case.

26. The applicant went further to deliberate the substantive claim surrounding the LFA to establish a breach on behalf of Vannin. The alleged breach of the contract, breach of implied terms, breach of Code of Conduct for litigation and breach of the Code of the Association of Litigation Funders of England and Wales were discussed.

27. Finally the Khorafis assert that Vannin and KBH have come to the Court without evidence which addresses the substantive allegations against them. They have preferred to put forward a series of largely unmeritorious procedural points. Therefore, according to the Appellants, the Court should conclude that there is a good arguable case against Vannin and KBH.

Vannin’s Arguments

28. In the First Application, Vannin’s primary submission is that the Preservation Order was made by H.E. Justice Omar Al Muhairi after a half day hearing of submissions from Vannin, KBH and the Khorafis, and has never been subject to any appeal by the Khorafis or any other party.

29. Vannin asserts that the Preservation Order has been effective, and has ensured that the Interim Payment has remained preserved in Court, for over six months while the Arbitration between Vannin, the Khorafis and KBH has proceeded. The onus on any party seeking a variation of the Preservation Order is to show that there has been a significant and material change in circumstances from those which were, or could have been, put before the Court previously, as cited in Chanel v Woolworth & Co [1981] 1 WLR 485 at 492H-493A:

“Even in interlocutory matters, a party cannot fight over again a battle which has already been fought unless there has been some significant change of circumstances, or the party has become aware of facts which he could not reasonably have known, or found out, in time for the first encounter.”

30. The argument is that the Applicant cannot simply invite a Court to reconsider an order on the same material or material which was available at the time of the earlier hearing. Vannin also supported the principle cited in paragraph 29 above with the decision in Lloyds Investment (Scandinavia) Ltd v. Ager- Hanssen [2003] EWHC 1740 (Ch) which prohibits the applicants from bringing an application to invite the Court to reconsider an order on the same material or material which was available at the time of the earlier hearing.

31. Vannin invited the Court to explore the commentary to Part 23 of the CPR in the English White Book, at 23.0.15, which refers to considerations arising when there are successive applications for the same relief.

32. In that context, Vannin argues that there is no significant or material change in circumstances save that Bank Sarasin has obtained permission for the appeal against the judgment in the Main Action, which had already been initiated and filed before the Preservation Order was made by H.E. Justice Omar Al Muhairi.

33. In reply to the point put forth by the Khorafis regarding their need to pay their Counsel USD 583,077 before the end of September 2015 and their desire to pay HAS its own fees for the Appeal and the First to Third Applications, Vannin’s view is that there is no evidence of any alleged inability on the part of the Khorafis to fund those fees from other sources; and their desire that they should be paid from the Interim Payment gives no reason as to why this Court should now strip away the security that was given to Vannin and KBH in the Preservation Order.

34. Vannin further argues that the faint suggestion in the Witness Statement of Mr Nour that the release of the Interim Payment from this Court is somehow required in order to allow the Khorafis to resist the Appeals is certainly not new. It was a suggestion repeatedly made during the correspondence between HAS and Vannin’s lawyers, Clyde & Co, and in the period after the Trial Judgment in which Vannin and KBH were seeking to persuade the Khorafis that the Interim Payment should be paid into an agreed designated or escrow account. That correspondence was considered in some detail by H.E. Justice Omar Al Muhairi.

35. While the DIFC Court does have supervisory jurisdiction to deal with the Preservation Order, it does not have jurisdiction to deal with the merits of any of the claims initiated by the Khorafis by way of a Draft Statement of Case. Even if it did, and even if the arguments made could not have been put forth last time around, the Khorafis could show no more than an arguable case, which would reinforce the case for the interim preservation of the Interim Payment. For the avoidance of doubt, the Preservation Order was not a consent order, and does not purport to confer jurisdiction on any court. 

KBH’s Arguments

36. KBH’s main argument in regards to the First Application is that any distribution of the Interim Preservation Sum should be in accordance with the Interim Preservation Order, which stipulates that, pursuant to the wording of the Interim Preservation Order, any variation to the Interim Preservation Order can only occur in accordance with the following:

(i) Further order of the Court based on a consent order signed by Vannin, the Khorafis and KBH; and/or

(ii) An order by way of an arbitration award or of any competent court.

37. KBH contends that there is currently no agreement between Vannin, the Khorafis or KBH in regards to the manner in which the Preserved Funds should be distributed. Similarly, there is currently no order by way of an arbitration award or of any competent court.

38. None of the reasons given by the Khorafis for seeking distribution of the funds (difficulty in paying legal fees, securing the Appeal or clearing debts) constitute a legal basis justifying the variation of the Interim Preservation Order and the distribution of the Preserved Fund.

39. During the hearing, KBH’s Counsel joined Vannin’s Counsel in his argument that the Preservation Order of 6 November 2014 cannot be revisited unless significant or material circumstances from those which were, or could have been put before the Court previously have changed, as summarised in Vannin’s argument above.

The Court’s Power to Vary Preliminary Orders

40. Although RDC 4.7 provides parties the right to apply to the Court in order to vary a given order that determines preliminary issues (interim orders), the question as to what extent the Court can modify the order in question is not clear in the RDC as there is no such provision as to the limits.

41. RDC 2.10 (Application of the CPR and the Guide) gives this Court the power to refer to the English Civil Procedure Rules in the event no provision is made in the RDC in regards to a procedural ambiguity, as follows:

“2.10 If no provision is made or no appropriate form is provided by the Rules or any law in force in the DIFC , the following rules of practice and procedure shall be followed and adopted:

(1) Such Rules as shall have been enacted;

(2) To the extent that no Rule or Practice Direction dealing with the matter shall have been enacted, with regard to the Court of First Instance, the Guide together with any prescribed forms with such changes as the Court considers appropriate to be applied in the circumstances;

(3) Insofar as the Guide does not deal with the matter or makes reference to the CPR , the CPR together with any prescribed forms with such changes as the Court considers appropriate to be applied in the circumstances;

…”

42. The general rule of the CPR in regards to the question at hand is what can be abstracted from CPR 3.1(9) which states that in a fair and orderly case management system, pre-trial matters should remain settled so that the parties can plan for trial accordingly.

43. The rule in Henderson v Henderson [1843] 3 Hare 100, 67 ER 313 applies so that a party cannot make repeated or successive applications where the grounds relied upon in the later applications existed and were available at the time of the first application, and still less when those grounds were relied upon, but were rejected by the Court.

44. The Court’s general jurisdiction under CPR 3.1(7) to vary its orders should not be exercised for the purpose of enabling a party to re-argue any application, relying on submissions and evidence that were available to them at the time of the earlier hearing, see Lloyds Investment (Scandinavia) v. Ager-Hanssen [2003] EWHC 1740 (Ch). The Court’s jurisdiction under CPR 3.1(7) should not normally be exercised unless the applicant is able to place new material before the court, whether in the form of evidence or argument, which was not placed before the court on the earlier occasion, see Collier v. Williams [2006] EWCA Civ 20 [2006] 1 WLR 194.

45. The rule is summarised in Chanel v Woolworth & Co [1981] 1 WLR 485 at 492H-493A as set out in paragraph 29 above.

46. One cannot imagine that parties may be allowed to continue fighting over the same issues surrounding an order without end. The judicial orders must provide stability and some sort of finality to the issues between the parties even if the issue is not on the merits of the case.

47. Deciding otherwise could lead to endless appeals on the varying of orders where the losing party would drag the application before a court for long periods that would defeat the court’s objectives to deal with cases justly, fairly and in a reasonable time period.

48. Having found that a party cannot fight to vary an order which has already been fought unless there has been some significant change of circumstances, I must now turn to the Appellants’ submissions and evidence to verify if there was indeed a material change of circumstances since the Preservation Order was granted.

49. The evidence by the Khorafis, as put forth by Mr Mohammed Nour in his Witness Statement, suggests that:

“8.  There exists a need for urgency in this proceeding. The reason is that, whilst we have agreed with our Counsel as their fee for the Appeal, and they have substantially discounted it, on our current cash flow, we will be unable to meet the obligation.

9. Mr. Al Khorafi has expended the following sum since the 21 August 2014 judgment: USD 1,104,440.00 Paid on Account of Counsel Fees, Court Fees, Advisory Fees, Legal Fees and Disbursements.

10. Mr. Al Khorafi’s cash flow determines that he next make a payment of USD 500,000.00 in September 2015.

11. I confirm that I have personally examined and informed myself as to the outstanding liabilities of Mr. Al Khorafi. I set out below;

12. There is an outstanding liability to our lawyers HAS in the amount of USD 461,359.00. We are not under immediate pressure to make payment of this amount. However, at the same time, we want to pay our lawyers.

a. There are outstanding Trial Costs from CFI-026-2009 of USD 948,593.00. These are detailed in the KBH Consent Order dated 9 February 2015 and are scheduled to be paid from the Preserved Funds held by the Court. These accounts have been outstanding for a long time and need to be sorted out as soon as possible.

b. We have a contingent liability to a Dubai Law firm of USD 134,130.00 and a barrister instructed by them, USD 22,850.00. Our lawyers do not accept that the whole of this fee is payable due to a dispute between those firms as to the extent of instructions given. Nevertheless, we list the full amount of that payment claim.

c. We have an outstanding amount to Griffins, the Forensic Accountants for work done on the Quantum hearing, of USD 48,500.00.

d. In addition there is a significant sum claimed by Eversheds LLP in the amount of USD 900,000.00. They have indicated that they are quite prepared to wait until the judgment sum becomes available. We have not yet analysed that invoice and considered its recoverability.

e. Finally there is an Invoice for recent work done by the firm of Irwin Mitchell LLP in the amount of USD 91,000.00. Again, without casting aspersions on the invoice, we are not yet in a position to accept it as being payable and we are unlikely to do so.

13. The problem which gives rise to this application is our difficulty in paying Counsels’ Fees immediately.

We have a debt of considerable gratitude to our Counsel who have worked very hard on very little and achieved considerable success.”

50. Both Vannin and KBH contend that none of the grounds in Mr Mohammad Nour’s Witness Statement, which were relied on and argued by the Khorafis’ representatives, are new grounds or circumstances, as they were all available or could reasonably have been known by the Khorafis at the time when the Preservation Order was heard and granted or at least at the time when the Khorafis could have submitted their appeal against it.

51. The Khorafis have not established that any of the grounds referred to in their submissions are new or could not have been available to them to put forth before the Court at the Preservation Hearing. Instead the focus was on the issues of financial hardship and inability to pay the debts surrounding the proceeding.

52. Consequently, the submissions suggest that there is no significant or material change in circumstances to justify varying the security provided by H.E. Justice Al Muhairi ordering that the Interim Payment be paid into Court. The only change is that permission to appeal has been granted for an appeal which was already anticipated at the time of the Preservation Order, and the costs of which were already being discussed by the Khorafis’ representative in order to seek further funding.

53. Ms Hanlon of HAS, the representative for the Khorafis at the Preservation Hearing on 6 June 2014, mentioned on page 73 of the hearing transcript that the possibility of an appeal was an issue for the Court to consider. “There could be appeals filed by the Defendants, Defendant 1 and 2. This is in CFI-026-2009 and I cannot predict this. I have attempted to get the information from the Registrar.”

54. Having established that the Khorafis have put forward no material change of circumstances or events since the Preservation Order was granted, this Court sees no ground on which it can revisit the Order.

Bank Sarasin’s position

55. In the First Application’s submissions and while hearing the First Application above, the Appellants asked this Court to consider the presence of Bank Sarasin. This Court came to the conclusion that Bank Sarasin is not an applicant in this first application, nor are they actual respondents as the Appellants never intended to serve them with this application.

56. The Appellants never agreed that Bank Sarasin should be parties in this application; it was Vannin’s suggestion that they be served with the application which they were then served with in redacted bundles and therefore submitted written replies to the application before attending the hearing with Counsel to represent them.

57. The Court agreed with the Khorafis and ordered that Bank Sarasin are not to be parties to this application since they are not required to take action or refrain from action on anything in this application. During the hearing therefore, the Court asked their representative to leave the courtroom.

58. I see that Vannin now requests to involve Bank Sarasin. I therefore request the parties and Bank Sarasin to make submissions in regards to the costs related to Bank Sarasin’s involvement up to the hearing date of no more than four pages from each party.

The Second Application

59. In the Second Application the Khorafis seek an Order under the DIFC Arbitration Law to stay the Arbitration proceedings DIFC/LCIA D-L-14043 initiated on 8 December 2014 or, alternatively, a declaration that the arbitral tribunal has no jurisdiction.

60. The Khorafis case is that Vannin have no immediate right to final payment as the entitlement of Vannin to be paid a final payment arises under Clause 10.1 of the Agreement on the occurrence of a “Win”. A ‘win’ is defined in the Agreement as:

“…that any part of the Claim is Concluded in the Client’s favour in that the Client is able to recover damages…”

Further, ‘Concluded’, is defined as:

“ …the Claim (or relevant part of it) has been Won or Lost, and that:

If the Claim (or where appropriate, part of it) has been Won, the Opponent:

…

has Lost any appeal.”

61. The Khorafis’ position is that a Claim has not been ‘won’ until the Opponent has lost the Appeal. In this case, the appeal is allowed and therefore there is no finality to the matter, as the case may take either direction. Saying otherwise, a litigation funder of uncertain means would need a covenant to pay back any sum awarded under an interim judgment. The fact that the contract makes no provision for repayment significantly supports the view that payment should only be made on the finality of the litigation. Pure common sense dictates that as well.
62. In order to support their argument of finality, the Khorafis refer to three other provisions of the Agreement which they say are drafted in conformity with their argument, which are as follows:

• The definition of ‘stages’, and particularly Stage 3, which ends at “the handing down of judgment following trial”. On any assessment, we are in stage 3. Trial is the whole course of the proceedings and judgment is a ‘final judgment,’ following which comes a “final payment” and the right to ‘arbitrate’ under the only available clause, Clause 17.1.3.
• The definition of “interim judgment’ makes it quite clear that the Agreement intends to distinguish between interim judgments and interim payments on the one hand, and final judgments and final payments on the other.
• The arrangements for the repayment of the Distributed Fund are drafted in conformity with the provision for the repayment of the Undistributed Fund at Clause 7.2.

63. In order to demonstrate how a case can be ‘won’ in accordance with contract structure, the Khorafis rely on the test of  Investors Compensation Scheme Ltd v West Bromwich BS [1997] UKHL 28, so that the interpretation of ‘win’ shall be subject to the five principles set out in the seminal speech of Lord Hoffman;

• what a reasonable person having all the background knowledge would have understood;
• where the background includes anything in the ‘matrix of fact’ that could affect the language’s meaning;
• but excluding prior negotiations, for the policy of reducing litigation;
• where the meaning of words is not to be deduced literally, but contextually; and
• on the presumption that people do not easily make linguistic mistakes.

64. Accordingly, for the Khorafis, a “win” only arises when the case is complete, and that means including all exhausted appeals. Only then can a ‘final payment’ be claimed or be payable.
65. As a result of the arguments above, the Khorafis contend that there is no final judgment and no final payment, so the dispute is not a dispute over final payments, and therefore there is no valid Arbitration Clause. Accordingly, the Khorafis invite the Court to stay the Arbitration proceedings.

The Third Application

66. In their third Application the Khorafis contend that there is a valid and binding escalation clause in the RFLA which requires the parties to consider mediation and that the parties have not considered the mandatory mediation in terms of Clause 17.1.3 of the RFLA, which reads:

“…If the dispute relates to the amounts payable under this agreement which are final payments, then the parties are required to consider mediation. If that does not work, then the parties will be at liberty to have the matter decided by arbitration pursuant to the DIFC-LCIA Arbitration Rules.”

67. The argument then follows that the Arbitration should be stayed due to the failure by Vannin to observe the provisions of Clause 17.1.3 of the RFLA which is an escalation clause.
68. The Khorafis in this application depend on an analysis of the “impugned” correspondence set out in the Notice of Application. It is said that the correspondence shows that there was no consideration of mediation, and that the only way this matter got to a formal arbitration was by Vannin’s representatives’ misleading statements to the Acting Registrar of the DIFC-LCIA in correspondence dated 20 November 2014.
69. The Khorafis contend that when Vannin was asked by the Acting Registrar of the DIFC-LCIA to provide information as to whether the parties had considered mediation, the answer given was misleading. They asserted that Vannin had said there was “an exhaustion of amicable mediation efforts” against the reality which, according to the Khorafis, was that there had been no consideration of mediation.
70. The Khorafis refer to Justice Colman’s finding in Cable & Wireless PLC IBM UK Ltd [2003] 1 B.L.R. 89 where he recognised the enforceability of an ADR agreement which nominated a respected ADR institution as providing mediation services, and when he opined that it was not strictly necessary to have such a body, it did make the agreement sufficiently referable to objective criteria. They also referred to Joseph Ed, 18.03;

“Proceedings brought in court in contravention of the terms of such a clause are liable to be stayed or adjourned as appropriate. Equally, however, there must be a danger that an arbitration commenced in breach of an effective ADR provision will be ineffective if there has been a failure to comply with a binding condition precedent to arbitration.”

71. The Khorafis, after claiming no mediation had been conducted, set the following grounds out as to why the arbitration proceedings should be stayed;
    • Clause 17.1.3 of the RFLA is an effective ADR Clause which constitutes an enforceable agreement to consider mediation;
    • The clause is not uncertain and is complete and sufficiently referable to objective criteria;
    • The obligation is for the parties to consider mediation in a joint temporal sense as a good faith requirement;
    • Good faith is an important tenet of DIFC Law and in the context of Clause 17.1.3 requires the parties to adopt an honest and genuine approach to settling a dispute, and an honest attempt by the parties to consider mediation is the objective criteria required to be met;
    • Only if the honest and objective consideration of mediation does not work, can the parties go to arbitration, in which case the use of the word work denotes a positive obligation;
    • An arbitration commenced in breach of an effective ADR provision will be ineffective if there has been a failure to comply with a binding condition precedent to arbitration; and
    • The behaviour of Vannin in misrepresenting correspondence was not genuine.
72. The Khorafis further argue that failing to adhere to ADR must have financial impact on the overall proceedings as;
    • A requirement for the parties to consider mediation is important given the effect of RDC Part 27 and applicable English Case Law which outlines the costs consequences following a refusal to consider or participate in mediation;
    • In order for the Court, at a later date, to consider whether or not a party has compromised its costs position by refusing to engage in ADR, the Khorafis submit it is necessary for the Court to have objective material before it; and
    • A significant misstatement by a party as to their compliance with ADR should support a stay, particularly if there is a contractual structure to engage in some measurable manner.

Vannin’s Application

73. In this application, instead of directly submitting a defence to the First and Second Applications, Vannin chose to challenge those applications by way of counter application, the core purpose of which was to dismiss the aforementioned applications.
74. In its submission, Vannin’s primary point, in response to the Second Application and Third Application, is that the DIFC Courts have no jurisdiction to decide the competence of the Tribunal to adjudicate in the Arbitration. They say it is the Tribunal that has jurisdiction to determine its own competence with reference to the principle of “Kompetenz-Kompetenz” which Vannin argue is expressly confirmed in Article 23(1) of the DIFC Arbitration Law.
75. Vannin further submits that the Khorafis, by inviting the Court to give itself the relevant power by extending its inherent jurisdiction to reach the finding that RDC 4.2(6) permits a stay of any proceedings anywhere, including arbitral proceedings, is “breaking a small amount of new ground”.
76. For Vannin, the DIFC Courts have no jurisdiction to intervene by stay or declaration that the Arbitral Tribunal has no jurisdiction because no legislative or legal source permits the DIFC Courts to do so before the arbitral tribunal has determined that matter.
77. By referring to the Judgment of Justice Williams in International Electromechanical Services LLC v. Al Fattan Engineering LLC (14 October 2012) CFI 004/2012, Vannin’s position is that the general power of the DIFC Courts under RDC 4.2(6) to ‘stay the whole or part of any proceedings’ may not apply to any proceedings or judgments of any Court or Tribunal other than those of the DIFC Courts. There is no basis for any such extension by the Court of its own jurisdiction.

78. Vannin’s final point on jurisdiction is that it will be open to parties to invite the Courts to intervene and examine jurisdiction at a later stage if and when an application to recognise or enforce an award by a Tribunal is made and an application contesting jurisdiction is filed.
79. With regards to merits, and the point of the meaning of “win”, Vannin insist that the definition of “win” is to be interpreted in a common-sense and purposive way, save that it will always include actual recovery from the opponents of any damages awarded, whether by enforcement proceedings or otherwise.
80. Vannin’s further argument in relation to the three specific stages of the claim is that the final stage, ‘Stage 3’, extends only to the handing down of judgment following trial (Clause 3 of the RLFA).
81. Vannin contends that upon the Khorafis winning in the trial judgment, it was entitled under the RLFA to the immediate payment of both the ‘Distributed Fund’ and the ‘Funding Premium’ and to the payment of the ‘Recovered Sums’ into a separate designated client account. Neither entitlement was in any way conditional upon the provision of further funding beyond Stage 3. The argument is that there is no suggestion anywhere in the RLFA of any obligation on Vannin’s part  to fund the Khorafis’ claims beyond Stage 3.
82. Vannin finally argues, on the mediation point, that Clause 17.3.1 is an escalation provision requiring only a consideration of mediation but not mediation itself, which lacks any certainty to make it an enforceable clause.
83. Vannin refers to the case of Wah v Grant Thornton [2012] EWHC 3198, where the English Court found that a term requiring the Chief Executive to have attempted to settle a dispute ‘by amicable conciliation’ lacked “sufficient definition and certainty to constitute enforceable conditions precedent to the commencement of an arbitration”.

KBH’s position

84. KBH’s position with regard to the Second Application and the Third Application is that the DIFC Courts should refuse to hear and determine the stay applications for the following reasons;
    • The appropriate forum for the Khorafis to raise any jurisdiction argument is in the Arbitration, as the matters are properly within the powers of the Arbitral Tribunal to determine; and
    • If the DIFC Courts are to hear and determine the Second Application and Third Application, this would give rise to the possibility of a multiplicity of binding decisions in respect of the same issue and possibly even a conflict between any decisions made in the different forums.

Judgment 

85. It is evident that the parties have agreed to refer any dispute between them arising out of the execution of the RLFA to arbitration in the DIFC, namely to the DIFC-LCIA Arbitration Centre, as Clause 17.1.3 of the Agreement reads:

“…If the dispute relates to the amounts payable under this agreement which are final payments, then the parties are required to consider mediation. If that does not work, then the parties will be at liberty to have the matter decided by arbitration pursuant to the DIFC-LCIA Arbitration Rules.”

86. It is also clear that the Second Application and the Third Application are not challenges against the validity of the Arbitration Clause and there is nothing before me to that effect. Therefore, a prima facie case has been established that a valid Arbitration Agreement exists between parties to resolve their dispute.
87. In their applications, the Khorafis are requesting the Court to stay the Arbitration or to declare that the Arbitral Tribunal lacks jurisdiction for the reasons that the Khorafis have not won the case yet according to the definition of “win” in the RLFA, and that Vannin or the parties in general have failed to observe the provisions concerning Mediation pursuant to Clause 17.1.3 of the RFLA, which is an escalation clause prior to Arbitration.
88. The question therefore to be determined is to what extent can this Court intervene in a case that has already been referred to arbitration through an undisputable prima facie clause and order a stay of the Arbitration proceedings?
89. The question is about this Court’s power and jurisdiction to stay arbitral proceedings where the seat is the DIFC and the arbitral forum is under its supervision.
90. The usual situation is that the Arbitral Tribunal should as a selected forum rule on its own jurisdiction, including any objections with respect to the existence or validity of the Arbitration exactly as the DIFC Arbitration Law provides in Article 10(1) and 23(1) with regard to the competence of the Arbitral Tribunal to rule on its jurisdiction.
91. Article 10(1) (Extent of Court intervention) reads;

“In matters governed by this Law, no DIFC Court shall intervene except to the extent so provided in this Law.”

Article 23(1) (Competence of Arbitral Tribunal to rule on its jurisdiction) reads;

“The Arbitral Tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the Arbitration Agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the Arbitral Tribunal that the contract is null and void shall not by itself determine the invalidity of the arbitration clause.”

92. As I said above, that is the normal situation. However, there must be exceptional cases where the Court would be approached to deal with issues related to the Arbitration Tribunal’s jurisdiction. The DIFC Arbitration Law has drawn a line as to what extent this Court can intervene in the authority of the Arbitral Tribunal in regards to jurisdictional challenges and in the event of disagreement.
93. Article 13 of the DIFC Arbitration Law allows this Court to intervene, despite the fact that the Arbitral Tribunal might still deal with the issue, as the use of the term ”may” in Article 23(1) suggests, only if the Arbitration Agreement is null and void, inoperative or incapable of being performed. Article 13 states:

“(1) If an action is brought before the DIFC Court in a matter which is the subject of an Arbitration Agreement, the DIFC Court shall, if a party so requests not later than when submitting his first statement on the substance of the dispute, dismiss or stay such action unless it finds that the Arbitration Agreement is null and void, inoperative or incapable of being performed.

(2) Where an action referred to in paragraph (1) of this Article has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the DIFC Court.”

94. The Arbitration Clause itself “shall be treated as an agreement independent of the other terms of the contract”, as Article 23(1) suggests. However, there are no grounds put forward by the Khorafis in which they plead that the Arbitration Clause is null and void, inoperative or incapable of being performed. Accordingly, both the Second Applications and Third Applications in this regard must fail.
95. The further question in the Second Application is whether Vannin’s immediate right to final payment arises under Clause 10.1 of the Agreement.
96. It is beyond doubt that what the Khorafis are trying to do in their Second Application is to ask this Court to step on the selected Arbitral Tribunal’s toes by looking at the merits of the case referred to arbitration and interpreting the agreement, then to conclude that the arbitral tribunal has no jurisdiction.
97. Even if the Khorafis manage to establish before this Court that there is still no ‘win’ to justify Vannin’s claim, which has nothing to do with the Arbitration Clause in any event, the request put forward still must be seen as requiring the Court to cross the jurisdiction of another selected forum. The Court is restrained from doing so by Article 13(1) of the DIFC Arbitration Law, and this request is therefore denied.

The parties’ failure to consider arbitration

98. We then come to the issue in the Third Application of whether the Arbitration should be stayed due to the failure by Vannin to observe the provisions of Clause 17.1.3 of the RFLA as an escalation clause dictating that “final and binding mediation” is mandatory before arbitration.
99. In this particular argument, I see that there might be a controversial point that the mediation as a pre-condition is something to do with the validity of the Arbitration Clause itself unlike the other argument related to the meaning of “win”.
100. This point of view above laid down by the Khorafis is to be determined in light of the question of whether it is this Court or the selected arbitral tribunal who should deal with such an issue.
101. As to the point of which forum should look at the issue surrounding the Mediation Clause, this Court or the Arbitral Tribunal referred to in the Arbitration Clause, the Khorafis provided two references. The first is a reference to Justice Colman in Cable & Wireless PLC IBM UK Ltd [2003] 1  B.L.R. 89 where he recognised the enforceability of an ADR agreement which nominated a respected ADR institution as providing mediation services, and where he opined that it was not strictly necessary to have such a body, but it did make the agreement sufficiently referable to objective criteria.
102. The second reference is to the Joseph Ed, 18.03, which reads;

“Proceedings brought in court in contravention of the terms of such a clause are liable to be stayed or adjourned as appropriate. Equally, however, there must be a danger that an arbitration commenced in breach of an effective ADR provision will be ineffective if there has been a failure to comply with a binding condition precedent to arbitration.”

103. As to the first reference, although the case demonstrates the importance of an ADR Clause in the contracts, nothing in this reference helps the Khorafis support their argument that the Court should stay the arbitration proceedings. In this case, Justice Colman in the English Court was examining the enforceability of an ADR Clause pre-condition to its own judicial jurisdiction and there was no challenge of jurisdiction as between Judiciary and Arbitral Tribunal as in this case.
104. As to the second reference provided by the Khorafis which again demonstrates the enforceability of an ADR Clause before a Court and Arbitration Tribunal, the reference given, as it appeared in the Khorafis’ submission, was not clear as to who should resolve the issue surrounding the enforceability of a mediation clause in a case referred to Arbitration.
105. I said the reference submitted by the Khorafis is not clear on the point of who should resolve the issue in the case that is referred to arbitration; however, it is not clear because the Khorafis’ representatives didn’t wish to make it clear in their submission before this Court. The same author of the book David Joseph Q.C (Jurisdiction and Arbitration Agreements and their Enforcement) that the Khorafis quoted from made it clear at paragraphs 18.13 and 18.14 that:

“In granting a stay, the court is enforcing the arbitration agreement and not the ADR provision. In other words, in order to grant a stay under s.9 of the Arbitration Act 1996, the court needs to be satisfied of the existence of an arbitration agreement within the meaning of the Act. The court is not concerned with enforceability or the certainty of the ADR provision. Should such a question arise, that would be a matter for the arbitral tribunal to consider.”

106. The author makes reference to Ardentia v British Telecommunications Plc [2008] EWHC 2111 (ch) where the Court in granting a stay was enforcing the obligation to arbitrate and not the questionable ADR provision.
107. Thus, it seems to me very obvious that in a case where one party approaches the Court applying for a stay of arbitral proceedings for the reason that an ADR provision exists and ADR should be conducted pre-arbitration, the Court must not consider the ADR provision and keep its focus on the Arbitration agreement only. In other words, the enforceability of the ADR provision must not be a reason to stay arbitral proceedings by way of Court order and that question must be kept for the selected forum to rule on.
108. I also agree with Vannin’s point on jurisdiction, that it will be open to parties to invite the Courts to intervene and examine arbitration jurisdiction at a later stage. This can be found in Article 44.1.a.(iii) Grounds for refusing recognition or enforcement, which reads:

“(1) Recognition or enforcement of an arbitral award, irrespective of the State or jurisdiction in which it was made, may be refused by the DIFC Court only:

(a) at the request of the party against whom it is invoked, if that party furnishes to the DIFC Court proof that:

(iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to Arbitration, or it contains decisions on matters beyond the scope of the submission to Arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to Arbitration may be recognised and enforced;”

109. Just as Articles 13 and 23 of the DIFC Arbitration Law suggest, nothing in the Khorafis’ application justifies the intervention of this Court to grant a stay of the arbitral proceedings or to declare that the arbitral tribunal has no jurisdiction to proceed with the dispute between the parties. Therefore, the Khorafis’ Second Application and Third Application must be dismissed.
110. Furthermore, the Vannin Application contesting this Court’s jurisdiction to deal with the Khorafis’ Second Application and Third Application is granted.
111. Having reached the above conclusion, I do not see any point in dealing with the rest of the arguments in the applications at hand.
112. The Khorafis shall pay the costs of the Second Application and the Third Application on the standard basis, to be assessed by the Registrar, if not agreed between the parties.

Issued by:

Natasha Bakirci

Assistant Registrar

Date of issue: 28 January 2016

At: 2pm

The post CFI 036/2014 Vannin Capital PCC PLC v (1) Mr Rafed Abdel Mohsen Bader Al Khorafi (2) Mrs Amrah Ali Abdel Latif Al Hamad (3) Mrs Alia Mohamed Sulaiman Al Rifai (4) KBH Kaanuun Limited (5) Bank Sarasin-Alpen (ME) Limited (6) Bank j. Safra Sarasin Ltd appeared first on DIFC Courts.

Claim No:  CFI 008/2015

          THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BEFORE JUSTICE SIR JOHN CHADWICK

BETWEEN                                                   

BOCIMAR INTERNATIONAL N.V

                                                                                                                                    Applicant

and

EMIRATES TRADING AGENCY LLC

Respondent

FREEZING ORDER

PENAL NOTICE

IF YOU EMIRATES TRADING AGENCY LLC DISOBEY THIS ORDER YOU MAY BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE FINED OR HAVE YOUR ASSETS SEIZED.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS THE RESPONDENT TO BREACH THE TERMS OF THIS ORDER MAY ALSO BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE FINED OR HAVE THEIR ASSETS SEIZED.

THIS ORDER

1. This is a Freezing Order made against Emirates Trading Agency LLC (‘the Respondent’) on 28 January 2016 by Justice Sir John Chadwick on the application of Bocimar International N.V. (‘the Applicant’). The Judge read the draft Affidavit listed in Schedule A and accepted the undertakings set out in Schedule B at the end of this Order.

2. This order was made at a hearing without notice to the Respondent. The Respondent has a right to apply to the Court to vary or discharge the order in accordance with paragraph 13 below.

3. There will be a further hearing in respect of this order on 2 February 2016 (‘the return date’).

FREEZING ORDER

4. Until the return date or further order of the Court, the Respondent must not:

(1) remove from the DIFC any of its assets which are in the DIFC up to the value of US$ 118,801,381.90 (the “Amount”); or

(2) in any way dispose of, deal with or diminish the value of any of its assets whether they are in or outside the DIFC up to the same value.

5. Paragraph 4 applies to all of the Respondent’s assets whether or not they are in its own name and whether they are solely or jointly owned. For the purpose of this order the Respondent’s assets include any asset which it has the power, directly or indirectly, to dispose of or deal with as if it were its own. The Respondent is to be regarded as having such power if a third party holds or controls the asset in accordance with its direct or indirect instructions.

6. This prohibition includes the following assets in particular:

(1) all real properties held by the Respondent or any of its affiliated or related companies in  the Emirate of Dubai, UAE, or the net sale money after payment of any mortgages if it has been sold, including (i) the ;

i. 9,376 sq ft of land located at Al Warsan First, International City, in Dubai’s Central District (“the Al Warsan Site”).

ii. 47,697 sq. ft. of land located at Marsa Dubai (Dubai Marina) (“the Marina Site”).

iii. Such apartments as ETA holds in “Building M01”, a multi-storey mixed use residential and commercial building on the Al Warsan Site (Area 621, Plot No, 1351).

iv. Such apartments as ETA holds in “Building No.1” (Area 392, Block 494), a residential and commercial building on the Marina Site.

(2) the property and assets of the Respondent’s business carried on at Ascon House, Salahuddin Road, PO Box 5239, Dubai UAE or the sale money if any of them have been sold; and

(3) any money in accounts held by the Respondent at:

(i)   HSBC Bank Middle East, Al Suq Road, Bur Dubai, PO Box 66, Dubai (tel: 971-4) 3538822

(ii) Emirates NBD, Binyas Street Branch, PO Box 777, Dubai (tel: 971-4) 2222241

(iii) Mashreqbank PSC, Al Riqa Road Branch, PO Box 5511, Dubai, UAE

(1) If the total value free of charges or other securities (‘unencumbered value’) of the Respondent’s assets in the DIFC exceeds US$ 118,801,381.90, the Respondent may remove any of those assets from the DIFC or may dispose of or deal with them so long as the total unencumbered value of the Respondent’s assets still in the DIFC remains above US$ 118,801,381.90.

(2) If the total unencumbered value of the Respondent’s assets in the DIFC does not exceed US$ 118,801,381.90, the Respondent must not remove any of those assets from the DIFC and must not dispose of or deal with any of them. If the Respondent has other assets outside the DIFC, he may dispose of or deal with those assets outside the DIFC so long as the total unencumbered value of all his assets whether in or outside the remains above US$ 118,801,381.90.

PROVISION OF INFORMATION

(1) Unless paragraph (2) applies, the Respondent must immediately and to the best of its ability inform the Applicant’s legal representatives of all its assets in the DIFC and worldwide exceeding US$ 100,000 in value whether in its own name or not and whether solely or jointly owned, giving the value, location and details of all such assets.

(2) If the provision of any of this information is likely to incriminate the Respondent, he may be entitled to refuse to provide it, but is recommended to take legal advice before refusing to provide the information. Wrongful refusal to provide the information is contempt of court and may render the Respondent liable to be imprisoned, fined or have his assets seized.

9. Within 7 working days after being served with this order, the Respondent by a director must swear and serve on the Applicant’s legal representatives an affidavit setting out the above information.

EXCEPTIONS TO THIS ORDER

10.

(1) This order does not prohibit the Respondent from spending a reasonable sum on legal advice and representation. But before spending any money the Respondent must tell the Applicant’s legal representatives where the money is to come from.

(2) This order does not prohibit the Respondent from dealing with or disposing of any of its assets in the ordinary and proper course of business.

(3) The order will cease to have effect if the Respondent:

(a) provides security by paying the US$118,801,381.90 into Court, to be held to the order of the Court; or

(b) makes provision for security in that sum by another method agreed with the Applicant’s legal representatives.

COSTS

11. The costs of this application are reserved to the Judge hearing the application on the return date.

VARIATION OR DISCHARGE OF THIS ORDER

12. Anyone served with or notified of this order may apply to the Court at any time to vary or discharge this order (or so much of it as affects that person), but they must first inform the Applicant’s legal representatives. If any evidence is to be relied upon in support of the application, the substance of it must be communicated in writing to the Applicant’s legal representatives in advance.

PARTIES OTHER THAN THE APPLICANT AND RESPONDENT

13. Effect of this order

It is a contempt of court for any person notified of this order knowingly to assist in or permit a breach of this order. Any person doing so may be imprisoned, fined or have their assets seized.

14. Set off by banks

This injunction does not prevent any bank from exercising any right of set off it may have in respect of any facility which it gave to the Respondent before it was notified of this order.

15. Withdrawals by the Respondent

No bank need enquire as to the application or proposed application of any money withdrawn by the Respondent if the withdrawal appears to be permitted by this order.

16. Service

The Claimant has permission to serve this Order on the Respondent out of the jurisdiction of this court at its address, Ascon House Salahuddin Road, PO Box 5239, Dubai, UAE and on the Respondent’s solicitors Clyde & Co at PO Box 7001, Level 15, Rolex Tower, Sheikh Zayed Road, Dubai, United Arab Emirates.

17. Persons outside the DIFC

(1) Except as provided in paragraph (2) below, the terms of this order do not affect or concern anyone outside the jurisdiction of this court.

(2) The terms of this order will affect the following persons in a country or state outside the jurisdiction of this court:

(a) the Respondent or its officer or agent appointed by power of attorney;

(b) any person who:

(i) is subject to the jurisdiction of this court;

(ii) has been given written notice of this order at his residence or place of business within the jurisdiction of this court; and

(iii) is able to prevent acts or omissions outside the jurisdiction of this court which constitute or assist in a breach of the terms of this order; and

(c) any other person, only to the extent that this order is declared enforceable by or is enforced by a court in that country or state.

18. Assets located outside the DIFC

Nothing in this order shall, in respect of assets located outside the DIFC, prevent any third party from complying with:

(1) what it reasonably believes to be its obligations, contractual or otherwise, under the laws and obligations of the country or state in which those assets are situated or under the proper law of any contract between itself and the Respondent; and

(2) any orders of the courts of that country or state, provided that reasonable notice of any application for such an order is given to the Applicant’s legal representatives. 

COMMUNICATIONS WITH THE COURT

All communications to the Court about this order should be sent to:

Ground Floor, Building 4, Gate District, DIFC, UAE
Telephone: + 971 4 427 3333
Fax: +971 4 427 3330
Email: registry@difccourts.ae

The offices are open between 10am to 5pm, Sunday to Thursday (excluding Public Holidays)

Issued by:

Amna Al Owais

Deputy Registrar

Date of issue: 28 January 2016

At: 2pm

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

Claim No: CFI 008/2015

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

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

IN THE COURT OF FIRST INSTANCE

BEFORE THE DEPUTY CHIEF JUSTICE SIR JOHN CHADWICK

BETWEEN

BOCIMAR INTERNATIONAL N.V.

                                                                                          Claimant

and

EMIRATES TRADING AGENCY LLC

Defendant

Hearing:            27 January 2016

Counsel:           Rupert Reed QC instructed by Gateley LLP for the Claimant

Judgment:        28 January 2016

JUDGMENT OF JUSTICE SIR JOHN CHADWICK

Transcribed from the oral judgment handed down on 28 January 2016, revised and approved by the Judge. 

Justice Sir John Chadwick:

1.Proceedings in case CFI-008-2015 were commenced on 30 March 2015 by the issue of a claim form under Part 8 of the Rules of the DIFC Courts. The relief sought in the proceedings was the entry of judgment in this Court in respect of judgment debts arising under two orders made on 17 July 2014 in the High Court of England and Wales, Commercial Court, pursuant to section 66 of the Arbitration Act 1996. For convenience, I shall refer to those orders as “the July 2014 orders”.

2. In support of its claim for judgment to be entered in this Court, the Claimant, Bocimar International N.V., a Belgian company, relied on provisions in Article 7(6) of the Judicial Authority Law (DIFC Law No 12 of 2004) (the “JAL”) and Article 24(1) of the DIFC Court Law (DIFC Law No. 10 of 2004), read with, respectively, Articles 5(A)(1)(e) and 19(1)(d) of those Laws. Reliance was placed, also, on paragraphs 15 to 20 of the Memorandum of Guidance as to Enforcement between the DIFC Courts and the Commercial Court in London signed on 23 January 2013.

3. The judgment debtor under the July 2014 orders – and the Defendant to the proceedings in case CFI-008-2015 in this Court – was Emirates Trading Agency LLC, a company incorporated, and having offices, in the Emirate of Dubai (but not in the DIFC). By application notice issued in these proceedings on 27 April 2014, under reference CFI-008-2015/1, the Defendant sought an order that the claim be set aside on the ground that the Court had no jurisdiction to entertain it; alternatively, an order that this Court should decline to exercise any such jurisdiction as it might have.

4. The claim and the application were listed for hearing by this Court in September 2015. In circumstances to which I shall need to refer in more detail later in this judgment, that hearing was vacated; and the claim and the application were re-listed for hearing on 25 and 26 January 2016. By letter dated 19 January 2016 – in circumstances to which, also, I shall need to refer in more detail – the Defendant gave notice to the Court that it was no longer pursuing (and wished to withdraw) the application which it made under reference CFI-008-2015/1; and that it no longer resisted the relief sought by the Claimant in the claim.

5. At the invitation of the parties, this Court made an order by consent on 26 January 2016. By that order the Court dismissed the Defendant’s application to set aside the claim, and ordered payment by the Defendant to the Claimant of sums amounting, in aggregate, to USD 118 million or thereabouts; being an amount equal to the judgment debts arising under the July 2014 orders, together with accrued interest. The position therefore is that from and after 26 January 2016 – that is to say, since Tuesday of this week – the Defendant has been a judgment debtor under an order of this Court. The amount of that judgment debt is US$118,801,381.90; with interest accruing on that debt until payment.

6. It was in those circumstances that, by application notice issued in these proceedings on 27 January 2016 under reference CFI-008-2015/4, the Claimant sought a freezing injunction restraining the Defendant from removing from the DIFC any of its assets or from dealing with its assets worldwide up to an amount of the judgment debt US$ 118, 801, 381.90; and, further, an order directing the Defendant to provide information about all its relevant property and assets up to the amount of the judgment debt. In seeking that relief, the Claimant relies on Rules 25.1(6) and (7) and 25.6(2) of the Rules of the DIFC Courts (“RDC”). Those rules are in these terms:

“25.1 The Court may grant the following interim remedies:

…

(6) an order (referred to as a ‘freezing order’)

(a) restraining a party from removing from the jurisdiction assets located there; or

(b) restraining a party from dealing with any assets whether located within the jurisdiction or not;

(7) an order directing a party to provide information about the location of relevant property or assets or to provide relevant information about relevant property or assets which are or may be the subject of an application for a freezing order;

…

25.6 An order for an interim remedy may be made at any time, including:

…

(2) after judgment has been given.”

Those rules give effect to Article 32(b) of the DIFC Court Law, which is in these terms:

“32. Powers

The DIFC Court has the power to make orders and give directions as to the conduct of any proceedings before the DIFC Court that it considers appropriate, including:

…

(b) injunctions, including requiring an act to be done;”

In the present case – as usual in circumstances where the applicant fears that the respondent may dissipate or deal with its assets in a manner calculated to frustrate the order sought – the application for a freezing injunction has been made without notice to the Defendant and has been heard in private. That procedure is in accordance with RDC 25.11 and 25.12.

7. The question for the Court on this application is whether, in all the circumstances, it is satisfied that it is appropriate to make a freezing order in the terms sought (or at all). Whether it is appropriate to make such an order is the test under DIFC Law: in that “appropriate” rather than “just convenient” (the words used to describe the test under equivalent provisions in the law of England and Wales) is the word used in Article 32(b) of the DIFC Court Law; although for my part I do not think that the test in this Court (at least in the circumstances of this case) differs in any material respect from the test that would be applied by a court in England and Wales.

8. In addressing the question whether it is appropriate to grant a freeing order in the present case, I have in mind the following factors:

(1) This is a case in which the Claimant has a judgment debt from this Court which (prima facie, at least) it is entitled to enforce against the assets of the Defendant wherever they may be found; provided, of course, that the law of the place in which those assets are situated permits or enables enforcement of the DIFC Court judgment. This is not a case in which the Claimant has to establish that it has what is often described as “a good arguable case” to the substantive relief that it sought against the Defendant in the proceedings. It has obtained judgment in this Court in respect of the relief sought in the proceedings: that judgment was entered by this Court by consent on 26 January 2016; the validity of that judgment is not in issue in this Court. The starting point, from which the question “is it appropriate to make a freezing order”, is that the Claimant is a judgment creditor: it is entitled to ask for the assistance of this Court in enabling that judgment to be enforced against assets which are or may be available to satisfy it.

(2) The evidence before this Court as set out in a draft affidavit which has been put before me – and which is to be sworn by Dr Mark Hoyle, a partner in the firm instructed by the Claimant as its legal representatives – establishes that the Defendant has assets within the Emirate of Dubai: but does not establish – or even suggest – that the Defendant has assets within the jurisdiction of the DIFC Courts.

(3) This Court does not, itself, have jurisdiction to enforce its judgments over assets which are not within the DIFC – notwithstanding that those assets may be within the Emirate of Dubai – but Article 7(2) of the JAL (under the heading “Execution”) provides, so far as material in the present context, that:

“Where the subject matter of execution is situated outside the DIFC, the judgments, decisions and orders rendered by the Courts and the Arbitral Awards ratified by the Courts shall be executed by the competent entity having jurisdiction outside DIFC in accordance with the procedure and rules adopted by such entities in this regard, as well as with any agreements or memoranda of understanding between the Courts and these entities. Such execution shall be subject to the following conditions:

(a) The judgment, decision, order or ratified Arbitral Award to be executed is final and executory;

(b) The judgment, decision, order or ratified Arbitral Award is translated into the official language of the entity through which execution is carried out;

(c) The Courts affix the executory formula on the judgment, decision, order or ratified Arbitral Award.”

As between the DIFC Courts and the civil courts in the Emirate of Dubai, there is a Protocol of Enforcement, signed on 23 April 2009, which provides for reciprocal enforcement procedures of the judgments of those two courts. Article 3.1 provides for the enforcement outside the DIFC of judgments issued by the DIFC Courts: Article 3.2 provides for the enforcement within the DIFC of orders issued by the Dubai civil courts. The preamble to the Protocol emphasises that there is agreement between the Dubai civil courts and the DIFC Courts for a need for full judicial cooperation; and for the principle that cooperation will be sustained by facilitating and establishing mutual enforcement procedures. In my view there is no reason to think that the Dubai civil courts would not give effect to Article 7(2) of the JAL and Article 3.1 of the Protocol and take the steps needed to enforce the judgment entered on 26 January 2016 against assets in the Emirate of Dubai (but outside the DIFC).

(4) The Claimant asserts that there are strong grounds to support its belief that if no order is made restraining the Defendant from dealing with or disposing of assets in the Emirate of Dubai – that is to say, in particular, assets within the Emirate but not within the DIFC – the Defendant is likely to take steps to dissipate those assets or otherwise to put them beyond the reach of recovery through whatever process of enforcement by the Dubai civil courts may be available to the Claimant.

9. In addressing the question whether it can be expected that the Dubai civil courts would give effect to Article 7(2) of the JAL and Article 3.1 of the Protocol and take the steps needed to enforce the judgment entered on 26 January 2016 against assets in the Emirate of Dubai (but outside the DIFC), I have had regard to observations of H.E. Justice Ali Al Madhani at paragraphs 44 and 52 of his judgment in DNB Bank ASA v Gulf Eyadah Corporation & anor, CFI-043-2014. Those observations were made in a section of his judgment (paragraphs 44 to 52) in which the judge was addressing a challenge to the jurisdiction of this Court to recognise an order made in the Commercial Court in London; on the ground that to do so would be an abuse of process in circumstances where (it was said) the purpose of seeking recognition of the Commercial Court judgment was to use this Court as a “conduit” or device to avoid the need for filing an application for recognition and enforcement before the Dubai civil courts. The judge rejected that argument; holding at paragraph 44 that the submissions advanced by both parties in that regard were misconceived. He said this:

“44. It is my view that both Parties’ arguments in this regard are misconceived. Unlike the situation in cases where an Arbitral Award is brought for recognition and then for enforcement, Recognised Foreign Judgments or Orders by the DIFC Courts cannot be said to be referred to the Dubai Courts for execution beyond the DIFC jurisdiction.”

And, after referring to Articles 7(2) and 7(6) of the JAL, he concluded at paragraph 52 “although this court has jurisdiction to recognise and enforce foreign judgments and that power shall be within the DIFC and cannot extend beyond the DIFC, this court has no power to refer Recognised Foreign Judgments to Dubai courts for execution.”

10. The conclusion reached by H.E. Ali Al Madhani at paragraphs 44 and 52 of his judgment in the DNB case has been the subject of an appeal to the DIFC Court of Appeal. I understand that that appeal was heard in December 2015; and that the judgment of the Court of Appeal has not yet been delivered. In those circumstances, it would be inappropriate for me to express any view on the question whether the judge was correct to reach the conclusion which he expressed in those paragraphs; and I do not do so. But, as it seems to me, it would be unnecessary for me to address that question in the present context. Assuming that H.E. Ali Al Madhani was correct in the conclusion which he reached in those paragraphs – that this Court has no power to refer Recognised Foreign Judgments to Dubai courts for execution – I am satisfied that that conclusion provides no basis for the view that the Claimant in the present case will be unable to enforce the order of this Court made on 26 January 2016 through the Dubai courts in reliance on Article 7(2) of the JAL and the Protocol.

11. “Recognised Foreign Judgments” is not a term which is defined in the JAL; nor, elsewhere in the relevant legislation, so far as I am aware. It is necessary, therefore, to identify to what H.E. Justice Ali Al Madhani was referring when he used that term in paragraphs 44 and 52 of his judgment in the DNB In my view it is clear that he used that term to refer to judgments rendered outside the DIFC – that is to say, judgments within Article 7(6) of the JAL – and not to refer to judgments of the DIFC Courts. A judgment rendered by the DIFC Court is not aptly described as a Recognised Foreign Judgment: it is a judgment of a court in the Emirate of Dubai and not a judgment of a “foreign court” for the purposes of the JAL: the judge cannot be taken to have thought that it was.

12. The Claimant will not be seeking to enforce a Recognised Foreign Judgment through the Dubai civil courts. In the present context, the “Recognised Foreign Judgments” are the July 2014 orders. Those are not the judgments which the Claimant will be seeking to enforce through the Dubai civil courts. The Claimant will be seeking to enforce the judgment of the DIFC Court – which, as I have said, is not a judgment which H.E Justice Ali Al Madhani can be taken to have had in mind when referring to Recognised Foreign Judgments – and for those purposes the Claimant does not need to rely on Article 7(6) of the JAL. It can rely on Article 7(2) of that Law and on the Protocol. In that context, I would respectfully adopt the observations of Justice Sir Richard Field, when giving leave to appeal in the DNB case, at paragraphs 21 and 22 of the schedule to his order of 9 September 2015.

13. I turn, therefore, to the question whether the Claimant has established that there are strong grounds for its belief that, if no order is made restraining the Defendant from dealing with or disposing of assets in the Emirate of Dubai – that is to say, in particular, assets within the Emirate but not within the DIFC – the Defendant is likely to take steps to dissipate those assets or otherwise to put them beyond the reach of recovery through whatever process of enforcement by the Dubai civil courts may be available to the Claimant.

14. The relevant legal principle in determining whether for the purposes of granting or maintaining a freezing order a claimant has shown a sufficient risk of dissipation is conveniently stated at paragraph 49 of the judgment of Mr Justice Flaux, sitting in the Commercial Court in London in Congentra AG v Sixteen Thirteen Marine SA (“the Nicholas M”), [2008] EWHC 1615 (Comm):

“…the relevant legal principle in determining whether for the purpose of granting or maintaining a freezing order, a claimant has shown a sufficient risk of dissipation is that the claimant will satisfy that burden if it can show that;

(i) there is a real risk that a judgment or award will go unsatisfied in the sense of a real risk that unless restrained by injunction the defendant will dissipate or dispose of his assets other than in the ordinary course of business or

(ii) that unless the defendant is restrained by injunction, assets are likely to be dealt with in such a way as to make enforcement of any award or judgment more difficult unless those dealings can be justified for normal and proper business purposes”.

Mr Justice Flaux went on at paragraph 50 of his judgment, to point out that the claimant asserted in that case that the defendant’s conduct in the past in advancing a case they knew to be unsustainable could be described as demonstrating “an unacceptably low standard of commercial morality” and that that demonstrated a real risk that the owners would take steps to dispose of their assets to avoid satisfying the award in the favour of the charterers, and he reached the conclusion that that submission had been made good. At paragraph 53, after setting out matters on which he relied, he said this:

“…those matters are significant in the context of assessing the risk of dissipation. In my judgment the charterers can show a good arguable case for the purposes of discharging the burden of showing a real risk of dissipation that what has happened in New York reveals that these owners are the sort of people who will stop at nothing to frustrate the charterers from making any substantial recovery by dissipating their assets, unless restrained by the freezing order.”

15. Observations to the same effect can be found in judgments of this Court in ARB-002-2015. Those being arbitration proceedings, it would be inappropriate to identify the parties or to indicate the nature of the claims; but it is appropriate to refer to the statements of principle by judges of this Court addressing a submission of “real risk of dissipation” in circumstances in which past conduct was relied upon. In my own judgment delivered on 9 September 2015, when granting a freezing order ex parte I referred to the decision of Mr Justice Flaux in the Nicholas M and to the passages in paragraphs 49 and 53 of that judgment which I have already cited. I went on to say this, in paragraph 18:

“That factor may perhaps be colloquially referred to as the “has shown form” factor: the person against whom the injunction is sought has shown by past conduct that they are likely to stop at nothing to frustrate the enforcement of an arbitration award which has been made against them…”

And in his judgment delivered on 8 December 2015, on the inter-parties application to continue the freezing order, Justice Sir David Steel said this at paragraph 51:

“There are a whole number of other points which were abandoned and which must have been known to be hopeless – the suggestion that the award had been suspended; the suggestion that the Tribunal had ordered that experts should not attend the evidence; the suggestion that the time afforded to read the transcripts was too short and unfair when it was accepted by the experts in evidence themselves that they had had adequate time – yet other complaints have disappeared without trace and without explanation: the costs point, the wrong law point, the discrepancies in reasoning point. One could go on.  But it is difficult to categorise these points as being raised other than as a device lacking in commercial reality, lacking in good faith and solely promoted to cause delay.”

Where those features are present, the court is entitled to reach the conclusion that a freezing order is appropriate because the defendants have shown by their past conduct that they will take whatever steps are open to them to frustrate the ability of the claimant to recover on the award or the judgment which it has obtained. I should stress that I am not talking of legitimate steps taken in pursuit of a client’s interest in litigation. I am talking about steps taken in circumstances where there was no proper justification in law or on the facts for advancing the arguments that were advanced or making the assertions that were made and where it can be demonstrated – or can be inferred from the subsequent abandonment of applications made on the basis of those arguments or those assertions without reason – that there was never any basis for a belief that they could properly be pursued.

16.The evidence upon which the Claimant relies is, as I have said, set out very fully in the draft affidavit of Dr Hoyle. Dr Hoyle has given to the Court an undertaking that this affidavit will be sworn in that form. I accept that undertaking and I proceed on the basis that what has been before me in draft will in due course be confirmed by a sworn affidavit.

17. As a context for the allegations set out in that affidavit, it is important to have in mind that the July 2014 orders were made on the basis of arbitration awards rendered by distinguished arbitral panels rendered in December 2012, February 2013, March 2013 and May 2013. Dr Hoyle explains, at paragraph 98 of his affidavit, that there has never been a challenge to those awards – at least, never in the courts of England and Wales which was the seat of arbitration – and no such challenge has been made in these proceedings. He refers, quite properly, to objections taken in enforcement proceedings in India; but those are of no materiality in the context for this Court. Further, the July 2014 orders having been obtained, there has never been a challenge to those orders. They were never appealed in England; and no steps have ever been taken to set them aside. This, then, is a case in which some two years after the awards (which have not been challenged) were handed down and over 9 months after the July 2014 orders (which have not been challenged) had been made, the Claimant sought to enter judgment here. These proceedings were, as I have said, commenced in March 2015. They were met by an application challenging the jurisdiction of this Court.

18. The proceedings for the determination of that application and the claim to enter judgment were strung out from April 2015, when the application was made, until 19 January 2016. On 19 January 2016, the legal representatives for the Defendant wrote in these terms so far as material:

“We write further to recent exchanges with the Registry and Gateley LLP [the legal representatives for the Claimant], and in respect of our client ETA’s jurisdiction application and to give notice to the DIFC Court that ETA is withdrawing the application.

ETA hereby withdraws the application basis the DIFC Court ruling…ETA therefore asks that the DIFC Court accept this letter as confirmation that ETA has withdrawn the application…

We await the DIFC Courts’ order in due course.”

19. That was a letter sent some six days before a two day fixture was to be heard in this Court. The only reason given for a change of mind leading to the abandonment of the application challenging the jurisdiction of the Court was the reference to the DIFC Court of First Instance ruling in the DNB But that ruling had been given as long ago as July 2015, when judgment was issued; and I was shown a letter sent shortly thereafter in which the legal representatives of the Claimant had drawn the attention of the legal representatives of the Defendant to that judgment. So, if there were a good reason on the basis of the DNB judgment not to proceed with the application that had been commenced in April 2015, that reason had emerged in July 2015. No explanation is given in the letter of 19 January 2016 why, between July 2015 and January 2016 the Defendant continued to pursue its application challenging jurisdiction; not only by maintaining that application but by taking a number of steps within it which led to and were intended to lead to the postponement of the hearing of the application and the claim.

20. It is unnecessary to rehearse in detail the full history of the litigation which is set out in Dr Hoyle’s affidavit. His account is supported by the documentary material exhibited to that affidavit; and I accept it. It is enough to refer to three matters:

(1) First, that there was a hearing fixed for the week commencing 6 September 2015. Dr Hoyle refers to that at paragraph 131 of his affidavit when he says on 14 July 2015 – and I interpose to point out that that was very shortly after the DNB judgment – the Registry wrote to the parties “…to take place in the week commencing 6 September 2015”. That hearing did not take place because the Defendant made an application for leave to adduce expert evidence. It was said the Defendant wasn’t ready. It was also said, contrary to the true position, that neither party was pushing for a hearing. The Claimant as it pointed out at the time in correspondence was anxious to have a hearing: unsurprisingly, given that it was then some two and a half years since the awards had been delivered. It was said on behalf of the Defendant that it was “obviously necessary” that expert evidence be served. No indication has ever been given as to the nature of that expert evidence: save that it might go to the question of service. What that evidence would have shown, in substance, has never been revealed. As a result of that application, the hearing was postponed: the Chief Justice refusing leave to adduce expert evidence but indicating that experts could be called or could take part as additional advocates if necessary. But, on 19 January 2016, the application was abandoned: without reference to any expert evidence, without any explanation why what had been said to be an obvious necessity for expert evidence was no longer thought to be a necessity at all, without or any indication as to what that evidence would have contained and without any explanation why it had never been revealed.

(2) Subsequently, the Registry sought to re-fix the hearing: that attempt was met by an application by the Defendant for an adjournment, based on the supposed need to make an application to the Commercial Court in London which was due to be heard in December. It was said that the “complexity of the issues and particularly the significance of the English High Court orders pose a risk of conflict” and that “the English High Court application decision would be paramount as to how the DIFC Courts proceed in any event”. It was said further, as Dr Hoyle points out in paragraph 150 of his affidavit, that the parties were currently listing an application for the English High Court “which will be of relevance and bring significance to the determination of the matters before the DIFC Court”. In the event, the English High Court application was withdrawn shortly before it was due to be heard; and, again, was withdrawn without explanation.

(3) The Registry re-fixed the hearing of both claim and application for 25 and 26 January 2016. An attempt was made by the Defendant to vacate that hearing. It was made on the pretext that Dr Hoyle having moved from one firm to another and having failed (or so it was alleged) to serve the relevant notice of change of legal representatives, the Defendants’ legal representatives did not know with whom they could deal. The Court dismissed that application for an adjournment. It was shortly after that failed application that the Defendant finally accepted, in the letter of 19 January 2016, that the inevitable could no longer be postponed and that the time had come when the Court would hear and determine the substance of the application and the claim. The only inference that I can draw from the circumstances in which the application was withdrawn and the Defendant ceased to resist the claim is that the Defendant was not, and never had been, interested in a hearing on the merits: its interest had been in delaying the point at which it would be required to pay the Claimant what it owed. There is no reason to think that its desire to frustrate the Claimant’s right to be paid will have changed.

21. I have done no more than refer in outline to the very detailed criticisms in Dr Hoyle’s affidavit; but having read that affidavit and the relevant documents to which he refers therein, and having been taken through them at length at an oral hearing, I am satisfied that the Claimant is entitled to take the view that, in the course of pursing the Defendant’s various applications, allegations were made and statements were advanced in evidence by the legal representatives of the Defendant in their witness statements which are inconsistent with the true position at the time and that that must have been appreciated.

22. In those circumstances, I have no hesitation in accepting that there are strong grounds for the belief that this Defendant, with the assistance of its legal representatives, has been prepared to adopt whatever tactical step was thought necessary to delay and defer resolution of this matter; and that it was prepared to do so because it was determined so far as possible to frustrate the ability of the Claimant to recover on the arbitration awards which had been handed down in 2012 and 2013.

23. Those factors, to my mind, demonstrate at least to the standard of good arguable case that there is a real risk that if not restrained, this Defendant will do what it can to frustrate the execution of the judgment of this Court entered on 26 January 2016 by taking steps to dissipate or remove from the reach of the Claimant through proper judicial process in the Dubai civil courts those assets which it has in Emirate of Dubai (but not in the DIFC). In those circumstances I think it right and appropriate to grant the freezing order which the Claimant seeks.

24. I have considered whether it is appropriate to include in that order the usual cross undertaking as to damages, and a provision for security to support that cross undertaking. In directing that a cross undertaking be given, but in determining that no security is needed, I place reliance on the observations of Mr Justice Burton Nomihold Securities Inc v Mobile Telesystems Finance SA [2011] EWHC 337 (Comm) at paragraph 24, where he said this:

“I happen to believe that it is always appropriate to give a cross-undertaking in damages but that it would be most unusual to have to fortify such cross- undertaking, however poor or unwell-heeled the Claimant is, where it is owed a substantial sum of money under the judgment because there may be circumstances in which, albeit that a judgment debt is owed and is unpaid, the effects of a freezing order, particularly a worldwide freezing order, may be overly damaging and overly prejudicial and that even if, at the end of the day, the judgment is paid up, there may fall to be set off some damage which is shown to have flowed as a result of the inappropriate obtaining of the freezing order.”

This is a case where security for the Claimant’s cross-undertaking is, in effect, provided by the existence of a judgment debt of US$ 118 million. I can conceive of no circumstances in which, whatever damage may be suffered by the Defendant in the event that my freezing order is held to have been made wrongly, that damage will come anywhere close to the amount of the judgment debt that is owed in this case.

25. Accordingly, I make the freezing order in the terms of the draft which has been provided; and with the amendments discussed in this Court. The Order will be sealed and issued by the Court today.

Issued by:

Natasha Bakirci

Assistant Registrar

Date of Issue: 31 January 2016

At: 4pm

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

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

PRACTICE DIRECTION NO. 2 OF 2016

Skeleton Arguments and Statements of Case filed with the DIFC Courts

Citation

This Practice Direction will come into effect on the date of signature. It may be cited as Practice Direction 2 of 2016 – Skeleton Arguments and Statements of Case filed with the DIFC Courts – and may be abbreviated to PD 2/2016.

This Practice Direction should be read in the light of Rules 35.61 to 35.63, 44.76 to 44.82, 44.109 to 44.114, and 44.127 to 44.130 of the Rules of the DIFC Courts (“RDC”) which provide for the submission of written skeleton arguments, as well as Schedule A to Part 23 of the RDC.

1. Skeleton arguments submitted by parties before trial and the consideration of heavy applications (see RDC 23.44) are not to exceed 25 pages in length.

2. Skeleton arguments submitted in the context of ordinary applications (see RDC 23.39) are not to exceed 15 pages in length.

3. Skeleton arguments submitted in the context of appeals and supplementary skeleton arguments for appeals are not to exceed 35 pages in length.

4. No skeleton may be submitted in a font smaller than 12 point or with less than double line spacing.

5. Any front sheet, back sheet, index, chronology, reading list, timetable, glossary, list of dramatis personae or attachments(1.) will not be counted as part of the page limit prescribed in paragraphs 1, 2 and 3 above.

6. Within their skeletons, parties should seek to direct the judge to the appropriate material from the reading list that focuses on the issues to be considered.

7. Should parties wish to submit skeleton arguments longer than as prescribed in paragraphs 1, 2 and 3 above, they must seek the Court’s permission by way of letter application, with reasons, to the Registry. Such an application:

a. Must be made sufficiently in advance of the deadline for service to enable the Court to rule upon it. The applicant should bear in mind the timescale for a decision set out in paragraph 8 below, and the time it may need to shorten the skeleton if necessary.
b. Must be contained in a letter no longer than one side of A4 paper.
c. Must attach the proposed skeleton argument.

8. The Court will decide all applications made in accordance with paragraph 7 above within five working days from the date the Court received the application. If a response has not been received within that period, the party may assume that permission has been granted.

9. When deciding such an application, the Court will grant permission for a lengthier skeleton where:

a. The application, trial or appeal concerns an exceptional level of factual or legal complexity (beyond that of a normal commercial dispute), and
b. The proposed skeleton complies with the requirements of Schedule A to Part 23 of the RDC.

10. Where permission for a lengthier skeleton has been granted by the Court, a note to that effect should be placed at the start of the skeleton.

11. Where a party files and serves a skeleton argument longer than prescribed in paragraphs 1, 2 and 3 above without the Court’s permission the Court may apply one or more of the following sanctions:

a. Limit the time the party in breach is allowed for oral argument,
b. Disregard any page beyond the page limit,
c. Adjourn the hearing and order a compliant skeleton to be filed and served in advance of the adjourned hearing,
d. Make an order for wasted costs under RDC 38.83,
e. Make any other order.

12. Any party wishing to make an application for relief from any of the sanctions set out in paragraph 11 is reminded that such an application will be decided in accordance with RDC 4.49.

13. Parties wishing to file a statement of case(2.) longer than 25 pages may do so, but their attention is drawn to the requirement for a summary set out in RDC 17.47.

Dated this 31 day of January 2016

Chief Justice Michael Hwang

1. “Attachments” for the purposes of this paragraph shall encompass attachments of key extracts from case documents or case authorities, for ease of reference of the Court. The trial judge reserves the discretion to allow for a more detailed Opening Statement to be made with whichever page limits he or she considers appropriate given the complexity of the case. This can also be achieved on application or by consent between the parties.

2. For the purposes of paragraph 13 above, the term “statement of case” shall mean: (1) A claim form, particulars of claim where these are not included in a claim form, defence, additional claim notice, or reply to defence; and
(2) Any formal written further information given in relation to a statement of case, whether given voluntarily or by court order.

The post Practice Direction No. 2 of 2016 – Skeleton Arguments and Statements of Case filed with the DIFC Courts appeared first on DIFC Courts.