A Curb on the Jurisdiction of the DIFC Courts?

4 August 2016

INTRODUCTION

  1. On 9 June 2016, the Ruler of Dubai issued Dubai Decree No. 19 of 2016 “Concerning the establishment of a Judicial Tribunal for the Dubai Courts and DIFC Courts” (“the Decree”).
  2. The Decree establishes a new judicial tribunal, whose task is to resolve conflicts of jurisdiction between the DIFC and Dubai Courts.
  3. The Decree arrived with little fanfare. It was unknown to most of the legal community in the DIFC until late June 2016. It appears that the DIFC Courts may also have been unaware of it.
  4. In this article we take an in-depth look at the Decree. We will first examine the background to the Decree and in particular the development of the DIFC as a so-called “conduit jurisdiction” for enforcement of judgments and awards within the Emirate outside the DIFC. Secondly, we will look at the Decree itself and attempt to analyse how it might work in practice. Finally, we will express some views on the possible thinking behind the Decree, what it might mean for existing and future cases before the DIFC Courts and how it might affect those wishing to do business with parties both within and outwith the DIFC (which we will refer to as “Dubai”).
  5. Notwithstanding that the Decree came into force on its date of issue, 9 June 2016, the Decree has not yet been officially published in the Dubai Official Gazette nor has it been published on the DIFC Courts’ website. Despite the fact that English is the official language of the DIFC there is no official English language version of the Decree.
  6. On the other hand, it has already been invoked in the DIFC Courts[1] and the subject of (at least) four helpful internet posts – from Rupert Reed QC[2], Dr Habib Al Mulla of Baker & McKenzie[3], Clyde & Co,[4] and Herbert Smith Freehills[5]. In this article we will use the English translation of the Decree prepared by Amal Advocates annexed to Mr Reed’s post.

Background

  1. The jurisdiction of the DIFC Courts has been the subject of many judgments over the course of its history. This is unsurprising. The source of the jurisdiction is a single statute – Article 7 of the Judicial Authority Law (“JAL”). Equally unsurprising have been the attempts made by parties and their lawyers to use the jurisdictional gateways in creative ways. They have brought claims in the DIFC, which many would have thought belonged elsewhere. In large part, the DIFC Court has been receptive to these attempts.
  2. In National Bonds v Taaleem[6], for example, the Court of Appeal agreed with Justice Sir John Chadwick that a jurisdiction clause in favour of “the Courts of Dubai” referred to the DIFC Courts. More recently, in IGPL v Standard Chartered Bank[7], the Chief Justice stated (obiter) that the ordinary meaning of the phrase “the Courts of Dubai” included “all the courts and judicial committees formed within the territory of Dubai and established by the Emirate’s legislation”. In Gavin v Gaynor[8], H.E. Justice Ali Al Madhani held that the wording “the courts in Dubai, the UAE” in an agreement intended to be partly executed in the DIFC must mean the DIFC Courts[9].
  3. While on a strictly literal interpretation of the phrase, this is clearly right, these sorts of decisions have taken some practitioners and parties by surprise.
  4. An even more interesting application of this literal and expansive approach to interpreting the DIFC Court’s jurisdiction came with the case of Corinth v Barclays Bank plc[10]. The Court of Appeal found that a foreign company which had established a branch in the DIFC was a “Centre Establishment” within the meaning of the JAL. As such, all claims by and against the foreign company were subject to the jurisdiction of the DIFC Court, whether or not the claim related to the branch. In that case, the dispute related to the activities of the non-DIFC Dubai branch of Barclays Bank. The DIFC had jurisdiction.
  5. The Court of Appeal in Corinth noted that it could decline to exercise its jurisdiction on forum non conveniens grounds. However, in the subsequent case of Allianz Risk Transfer AG Dubai Branch v Al Ain Ahlia Insurance Company PJSC[11], the Court made clear that the doctrine would not arise where the competing forum was within the UAE. This conclusion was approved by the Court of Appeal in IGPL. The power to resolve conflicts of jurisdiction between different courts within the UAE, including between courts in the Emirate, was a matter for the Union Supreme Court (“USC”). As the Court of Appeal put it, any attempt by the DIFC Court to resolve such a conflict:“would amount to a usurpation of the USC’s constitutional function.”
  6. In that case, the competing jurisdiction was the Sharjah Court. However, the rationale of IGPL and Allianz would appear also to extend to a jurisdiction dispute between two courts in the same Emirate.
  7. Following IGPL, then, we might expect to see more cases which could be brought in either the DIFC or the non-DIFC Dubai Courts. Given the conclusion that forum non conveniens does not apply in those circumstances, it remains to be seen what, if anything, the DIFC Court could do to prevent parallel proceedings being brought in the DIFC, even where they are brought after non-DIFC Dubai court proceedings have begun.
  8. The Court has attempted to grapple with the slightly different, but no less difficult question of what the DIFC Court can do about Dubai Court proceedings where the DIFC Court does, and the Dubai Court does not have jurisdiction. The issue has given rise to a trio of cases, none of which provides a comprehensive solution.
  9. In Taaleem v National Bonds[12], the defendant challenged jurisdiction on the basis of a jurisdiction agreement in favour of “the Courts of Dubai”. As noted above, this was interpreted by the Courts to be a reference to the DIFC Courts and the challenge was dismissed. In the course of the application, it emerged that the defendant had issued proceedings in the non-DIFC Dubai Courts. The claimant applied for an anti-suit injunction. Justice Sir John Chadwick refused the application. The Judge acknowledged that the DIFC and Dubai Courts might reach a different conclusion on jurisdiction in any given case and that, if that “If that proves to be a real problem in practice then some steps will need to be taken in order to solve it”. However, it was unhelpful, in his view, for the DIFC Court to appropriate to itself the exclusive right to decide on jurisdiction.
  10. Azzam v Deyaar Developments[13] arose out of the same dispute. The claimant had been the CEO of Taaleem. After Taaleem succeeded on the claim, the defendant brought proceedings in the Dubai Courts, advancing many of the same allegations that had been made against Taaleem in the DIFC Court proceedings. The claimant sought a declaration that the DIFC Court had jurisdiction and an anti-suit injunction. The Court granted the declaration[14] but refused to grant the anti-suit injunction, relying on the dicta of Justice Sir Chadwick from the earlier case. H.E. Justice Omar Al Muhairi also noted that it was for the USC to police conflicts of jurisdiction even within the same Emirate.
  11. In Brookfield Multiplex v DIFC Investments[15], the claimant sought an anti-suit injunction to prevent proceedings in the Dubai Courts which, it said, were brought in breach of an arbitration agreement. The Court found that the Dubai Court proceedings were directed at obtaining evidence and so were consistent with arbitration. However, Justice Sir Jeremy Cooke did appear to consider that, in an appropriate case, the DIFC Court might issue and injunction prohibiting proceedings in the Dubai Courts which were pursued in breach of an arbitration agreement whose seat was the DIFC.
  12. These cases, particularly Brookfield, leave open the possibility that some sort of anti-suit relief may be available to a litigant in an appropriate case. However, so far the DIFC Court has not issued such an injunction and has shown understandable reluctance to do so.
  13. The issue of conflicts of jurisdiction between the DIFC and Dubai Courts has come to the fore more acutely as a result of a series of cases dealing with the enforcement of arbitration awards and foreign judgments in the DIFC Courts. In those cases, the DIFC Court has confirmed that it is legitimate to use the Court as a “conduit” to enforcement of a foreign judgment or an arbitration award in Dubai, outside the DIFC.
  14. By Article 7 of the JAL, the DIFC and Dubai Courts are obliged to enforce one another’s judgments. They are also obliged to enforce arbitration awards which have been ratified by the other court. The term “arbitration awards” is expressly defined to include foreign arbitration awards. In principle, then, the JAL permits a party to enforce a foreign arbitration award in the DIFC Courts and then seek execution in the Dubai Courts.
  15. In Egan v Eava[16], Justice Sir John Chadwick confirmed that the DIFC Court had jurisdiction to enforce a foreign award, whether or not the defendant had any assets in the DIFC and whether or not there was any other connection with the DIFC. This conclusion was applied and extended in Meydan Group v Banyan Tree[17], where the Court of Appeal found that the same held true even where the seat of the arbitration was non-DIFC Dubai.
  16. A complaint that this indirect means of enforcing a foreign award was unconstitutional was rejected in Fiske v Firuzeh[18]. Similar complaints that indirect enforcement might be contrary to public policy were rejected in Banyan Tree v Meydan[19], Fiske v Firuzeh[20] and Egan v Eava[21].
  17. Throughout these cases, the Court has emphasised that, in enforcing arbitration awards in this way, the DIFC Court is not appropriating from the Dubai Courts any right to supervise the awards. With respect to foreign awards, a party may choose whether to enforce in the DIFC or in Dubai. However, there is no need to engage the New York Convention mechanism twice, given the arrangements for reciprocal enforcement in the JAL. Where the seat of the arbitration was Dubai, a party may still seek annulment in the Dubai Courts. However, there is no need to seek ratification first, before enforcing in the DIFC.
  18. It appears, however, that this is not always how the DIFC Courts’ actions have been understood.
  19. In Oger Dubai LLC v Daman Real Estate Capital Partners Ltd[22], the claimant sought and obtained an order that the defendant be wound up. The claimant had obtained an arbitration award in an arbitration seated in Dubai and had sought its recognition and enforcement in the DIFC. The defendant applied to the Dubai Courts to annul the award and asked the DIFC Court to adjourn enforcement, pending the outcome of the Dubai Court annulment proceedings. The DIFC Court agreed to adjourn for 4 months on condition that the defendant post security in the amount of the award and costs. The Dubai Court then refused to annul the award on the ground that it lacked jurisdiction to do so. It appears that the Dubai Court’s view was that the matter had already been considered by the DIFC Courts. The Dubai Court of Appeal agreed.
  20. The result in Oger appears to be that the Dubai Courts considered that the DIFC Courts were making a final determination of the validity of awards from arbitrations seated in Dubai.
  21. In another strand of cases, the DIFC Court has found that it is also legitimate to use the DIFC Court as a “conduit” for the enforcement of foreign judgments. In DNB Bank v Gulf Eyadah[23], the Court of Appeal confirmed that it was legitimate to seek recognition and enforcement of a foreign judgment in the DIFC Court, with a view to taking that judgment on to the Dubai Courts for execution. Adopting the English common law approach, the result of enforcement proceedings in the DIFC Court would be a fresh, independent judgment which, so far as the DIFC Court was concerned, would qualify for reciprocal enforcement under the JAL. The impact of this is potentially very significant, given the markedly different circumstances in which the DIFC and Dubai Courts will recognise and enforce foreign judgments. If the Dubai Courts follow suit, the result may be that some judgments which the Dubai Courts may not have enforced directly would now be capable of enforcement in Dubai using this route.
  22. The DIFC Court has adopted a literal interpretation of legislation and jurisdiction agreements which has had the result that it has accepted jurisdiction where some would have predicted it would not. Given the broad interpretation of jurisdiction agreements in IGPL in particular, it seems likely that more cases will arise in which it is arguable that either court or both has jurisdiction.
  23. The DIFC Court has ruled out the application of the forum non conveniens test where the competing court is within the UAE. It has not found it easy to devise a mechanism by which jurisdiction disputes between the courts can be resolved, indicating on more than one occasion that this may be an arena in which only the USC may intervene.
  24. On one view, it is for the DIFC Courts to set this boundary. Article 8(4) of the Law of the DIFC (Dubai Law 9 of 2004) states:“The Centre’s Courts shall have exclusive competence to interpret this Law, the Centre’s Laws and the Centre’s Regulations.”
  25. It is at least arguable that this includes reference to the JAL, albeit that argument was rejected by Justice Sir John Chadwick in Taaleem v National Bonds[24].
  26. Despite this, in practice, the DIFC Court has made the running on identifying the boundary between the jurisdiction of the two courts. In defining its own jurisdiction, the DIFC Court has been stating its view on where the jurisdiction of the Dubai Courts ends. This is the context within which the Decree has been issued.

The decree

  1. Article 1 of the Decree provides for the establishment of a Judicial Committee (“the Committee”) comprising:
    1. The President of the Dubai Court of Cassation as Chairman;
    2. The Chief Justice of the DIFC Courts;
    3. The Secretary General of the [Dubai] Judicial Council;
    4. The President of the Dubai Court of Appeal;
    5. A judge of the DIFC Court of Appeal;
    6. The President of the Dubai Court of First Instance;
    7. A judge of the DIFC Court of First Instance.
  2. There are thus four Dubai judicial members of the Committee and three DIFC judicial members. Decisions may be made by a majority with the Head of the Dubai Court of Cassation having a casting vote. The Head of the Dubai Court of Cassation convenes meetings of the Committee. The Committee is quorate with four members and may therefore reach its decisions without the input of any of the DIFC members (Article 3.a). The DIFC members are to be appointed by the Chief Justice of the DIFC Courts; as at the date of writing no appointments have been announced.
  3. The Committee has the following powers (Article 2):
    1. To determine which is the competent court to hear a claim or application in respect of which there may arise a conflict as to whether the Dubai Courts or the DIFC Courts have jurisdiction;
    2. To Determine which judgment should be enforced in the case of conflicting judgments issued by the Dubai Courts and the DIFC Courts in relation to the same parties and the same subject matter;
    3. To propose the rules and regulations necessary to avoid any conflicts as to jurisdiction, whether positive or negative, between the Dubai Courts and the DIFC Courts or between the execution departments of those Courts. Such proposals to be submitted for approval to the President of the Dubai Judicial Council;
    4. To give opinions in matters relating to cooperation and coordination between the Dubai Courts and the DIFC Courts;
    5. Any other matters as may be the subject of a request by the Judicial Council or the Ruler.
  4. Under Article 4 of the Decree an application for the determination of the competent Court or the judgment to be enforced may be submitted to the Committee by any of the parties or by the Attorney General of Dubai. The applicant must submit a verified copy of the pleadings, the applications or the conflicting judgments as appropriate. The Committee will, without more, decide the application, “in accordance with current legislation and the applicable rules of jurisdiction”.
  5. The Committee is obliged to reach a decision within 30 working days from the submission of the application. The Committee’s deliberations are to be in private but its procedures and decisions will be recorded in Minutes signed by the Chairman and the members (Article 3).
  6. Once a claim has been referred to the Committee the proceedings within which the dispute as to jurisdiction has arisen will be stayed pending the decision of the Committee. If the reference to the Committee is in respect of conflicting judgments, there will be a stay of execution pending the decision of the Committee. In addition, any applicable procedural time limits or limitation periods are suspended (tolled) from the date of submission of the application to the Committee (Articles 5 and 6).
  7. The Committee will provide the reasoning for its decision to the applicant within 7 days of the issue of the decision.

Commentary

  1. A textual analysis of the Decree by anyone familiar with DIFC law clearly indicates that it has not been drafted with the input of the DIFC Court: had there been such an input there would not have been the elementary error of differentiating between judges of DIFC Court of Appeal and those of the DIFC Court of First Instance as it would have been known that the judges of the DIFC Courts fulfil both functions.
  2. The absence of consultation with the DIFC Courts may also speak of the Decree having been prepared in a hurry. Other indicia of haste may be the absence of official publication both in Dubai and the DIFC and the absence of an English translation.
  3. The wording of Decree presents several problems:
    1. There appears to be no provision for either the applicant or the respondent to make any submission to the Committee which will simply decide the matter on the documents filed with the respective court. In practice it is likely that an applicant will file detailed submissions when making its application. There is however no obvious mechanism for the respondent to be heard. Unless some provision is made for this, it would appear to violate fundamental principles of natural justice and due process, in particular the tenet of “audi alteram partem” (let the other side be heard as well);
    2. The working language of the Committee is not specified – Dubai laws and court decisions are in Arabic whereas those of the DIFC are in English. There are inherent problems in translating laws and judgments from language to another which may be exacerbated in the present case as not all judges of the DIFC Court are native-Arabic speakers;
    3. The requirement for the Committee to decide the application, “in accordance with current legislation and the applicable rules of jurisdiction” is somewhat unclear as the legislation and rules of jurisdiction are not identified. The function of the Committee appears to be to resolve any conflicts as to jurisdiction between the Dubai Courts and the DIFC Courts or between the execution departments of those Courts (Article 2). In the majority of cases, the dispute will focus on the provisions of the JAL. However, there may be cases where the application of Dubai and DIFC legislation and rules of jurisdiction lead to (or at least are claimed to lead to) different results. There is no indication as to which is to take precedence, although the in-built majority on the Committee could be taken as a sign-post pointing towards the former. Similarly, there is no indication of how the Committee might proceed if both the DIFC and Dubai Courts have jurisdiction, for example where a jurisdiction clause refers to “the Court of Dubai” on the interpretation reached in IGPL;
    4. The prejudice to any respondent appears to be compounded by the absence of any provision that the respondent shall be notified of the decision of the Committee. On its face, the first a party may know of any decision is when his claim, application or execution are struck out;
    5. It is probably more likely that a respondent will first learn of the application when told that his proceedings have been stayed. Indeed it is foreseeable that the Decree may be used to frustrate efforts to enforce awards and judgment and stave off creditors. This may, to an extent, be mitigated by the time limit (30 working days, i.e. 6 weeks excluding holidays) within which a decision must be rendered but clearly that would more than sufficient time for a determined debtor to take steps to render himself “judgment-proof”. Whether, the stay would preclude attachment proceedings in Dubai or a freezing order in DIFC in the interim remains to be seen;
    6. The Decree purports to suspend the running of any procedural or limitation periods applying under applicable laws from the date of submission of the application to the Committee. We can foresee no problems with the adjournment of proceedings both before the Dubai and the DIFC Courts or the tolling of limitation periods under Dubai/UAE law and DIFC law, but we note that the Decree is silent on the question of contractual limitation periods. We question whether the Decree is capable of affecting limitation periods under international conventions or even foreign choice of law provisions;
    7. Mr Reed QC suggests that it is assumed, on the basis of the principle in Article 112 of the UAE Constitution that law shall not apply retrospectively, that it should not apply in respect of existing references to the Union Supreme Court (“USC”) or applications for such references. In the case of Standard Chartered Bank v Investment Group Private Limited[25] Dr Al Mulla gave an expert opinion that the Decree does operate retroactively[26]. Steele DCJ reserved his view on the point given its importance and that the case before him could be resolved on other grounds;
    8. While we would not hold ourselves out to advise on UAE constitutional law, we would agree that in the DIFC the common law presumption against retrospectivity ought to apply. It therefore appears surprising that in the only case as yet in which the Decree has been applied, it does appear to have applied retrospectively. In the Oger Dubai LLC v Daman Real Estate Capital Partners Limited case, the winding up order was stayed on 30 June 2016 until a judicial decision is taken pursuant to Decree No. 19 of 2016 as to the competent court. Given that the petition was presented some 3 months before the Decree was issued, it does appear that it is being applied retrospectively to pending proceedings;
    9. Both Dr Al Mulla and Mr Reed QC suggest that the Committee’s decisions are final, binding and non-appealable. The Decree does not expressly state there is no appeal but Article 3B does refer to the decision as final. We can only speak to the position under DIFC law, but the decision of a DIFC body in breach of the rules of natural justice would be open to review under Article 22(1) of the DIFC Court law;
    10. As noted, we do not claim to advise on UAE constitutional law, but with that caveat we do wonder how the Decree sits with the existing Federal system for resolving conflicts of jurisdiction. In the IGPL case, the DIFC Court of Appeal considered that to attempt to resolve a conflict of jurisdiction between Emirates would be to usurp the role of the USC. Article 99 of the UAE Constitution conferred that role on the USC. The rationale of that case would also appear to cover disputes of jurisdiction between the Dubai and DIFC Courts. The DIFC Court’s view in Azzam was certainly that those disputes would also fall within the jurisdiction of the USC. Similarly, in Fiske and Firmin v Firuzeh on 5 January 2015, the DIFC Court held that the USC would have jurisdiction to decide on the constitutionality of DIFC legislation under Articles 151 of the Constitution and Article 58 of Law 10 of 1973 (“the USC Law”). In the Standard Chartered case Steele DCJ preferred to reserve his opinion, notwithstanding that both experts before him agreed that the effect of the Decree is to eliminate the jurisdiction of the USC in respect of conflicts of jurisdiction between the courts of Dubai stating that he approached that agreement with some degree of caution[27]. At least on a prima facie basis, it would appear that if it is alleged that the conflict as to jurisdiction between the courts of Dubai and those of the DIFC is claimed to arise not simply on the facts of a particular case but on the basis of an alleged inconsistency between Dubai and DIFC law, the appropriate forum for resolution of that issue is the USC and that the Decree cannot oust the USC’s jurisdiction.

    Some thoughts

    1. It is of course very early days and the Decree contemplates that the Committee will propose further rules and regulations. It is therefore hoped that the queries and problems highlighted above will be addressed.
    2. As to the thinking behind the Decree, as a distinguished Emirati lawyer who has been closely involved in the development of free zones in the UAE, Dr Al Mulla asks: whether it is the recent rise in the willingness of the DIFC Courts to expand the scope of their jurisdiction, potentially creating conflicting outcomes, which has triggered the formation of this new Authority in the Emirate of Dubai: Or is it the continuous efforts of the Emirate of Dubai to raise its profile and bolster the credibility of its judicial system by ensuring that both courts operate in a flawless and efficient fashion?
    3. It is certainly the case that the willingness of the DIFC Courts to act as a “conduit jurisdiction” has been directed to facilitating the enforcement of judgments and awards not only within the DIFC but also within Dubai. Business appears divided on the subject. Gerard Hobby, the Chief Legal Officer at Dubai Holding LLC, spoke with disapproval at the inaugural IBA Arab Regional Forum Conference in May 2016 about the “playbook” adopted by those wishing to avoid the enforcement of liabilities determined by courts and arbitral tribunals.
    4. On the other hand, there is some speculation that vested interests have promoted this hurried piece of subordinate legislation. Such views may be fed by decisions such as that in the Dubai Court of Appeal in Fluor v Petrixo Oil & Gas (30 March 2016) in which the Dubai Court of Appeal, of its own motion and without consulting the parties, held that no evidence had been submitted to establish that the UK had signed and ratified the New York Convention and consequently it refused to enforce an arbitral award rendered in London.
    5. The feared results of the speculation may be overstated even if the origin of the Decree may have been an intention to curb the jurisdiction of the DIFC Courts. The Dubai Courts have proved themselves capable of correcting “rogue” decisions – in Fluor the Court of Cassation reversed the Court Appeal’s decision on the issue of the UK’s accession to the New York Convention on 19 June 2016. In addition, there are of course DIFC judges on the Committee.
    6. There no tradition in the Middle East of publishing judicial decisions and executive decrees or of consulting on proposed legislation. Courts may also reach decisions on grounds not raised by the parties. It can lead to a cultural misunderstanding on the part of foreign investors. A public example affecting a DIFC arbitration award was the case of Robinson Club GMBH v Zabeel Investments LLC[28]: it was undoubtedly unfortunate that the Claimant was only made aware of the Special Judicial Committee to Settle the Disputes Related to Zabeel Investments LLC when seeking to enforce a DIFC arbitration award before the DIFC Courts, but it is understood that matters brought before that Committee have subsequently been dealt with to the satisfaction of all parties.
    7. The current uncertainty risks harming the reputation of Dubai that the DIFC has done so much to develop. The situation is not helped by the speed with which this important Decree has been hurried through and the apparent lack of consultation even with the DIFC Courts, still less the legal community. No-one would wish to return to the days of International Bechtel v. Department of Civil Aviation of the Government of Dubai (Dubai Court of Cassation, petition No. 503/2003, judgment dated 15 May 2005), where the Court set aside an arbitral award because certain evidence was unsworn, notwithstanding the agreement of the parties that it was inappropriate for the witness to be asked to take the oath. The decision may well have been correct under the UAE Civil Procedure Code, but it did significant damage to Dubai’s reputation as an arbitral seat.
    8. What advice can confidently be given to those about to do deals in Dubai or who are thinking of enforcing judgments or awards? For substantive disputes, as ever, careful drafting of jurisdiction agreements in light of the existing decisions will minimise any risk of a jurisdiction dispute. Arbitration in the DIFC appears to remain a safe and reliable option, so long as the seat is clearly and unambiguously identified. By contrast, it has been recognised that UAE arbitration law is in need of reform, something which has been under discussion for at least the last 13 years without any imminent conclusion.
    9. Enforcement of DIFC and foreign arbitration awards and judgments against assets in the DIFC seems unlikely to be affected. Similarly, the Decree seems unlikely to affect enforcement of foreign and Dubai-seated awards in the Dubai Courts. In Dubai, there has been a recent positive trend of arbitration enforcement cases, albeit subject to the occasional “hiccough” such as the Fluor case.
    10. The use of the DIFC Courts as a conduit for enforcement of judgments and awards may well be challenged in the Committee. It is hard to fault the logic of the DIFC Courts in deciding that this avenue is available for enforcement of foreign awards. Given the events in Oger, there may be more issues to explore where a party seeks enforcement of a Dubai award in the DIFC before engaging the Dubai Courts.
    11. For those with foreign judgments and awards, the DIFC Courts may remain the most attractive option. However, the Decree has cast some doubt on the progress made to date. It is to be hoped that decision made under the Decree will be made public so that business (and its advisors) may make informed decisions as to the structure of its deals as to applicable law, jurisdiction and dispute resolution procedures.

    DISCLAIMER: Michael and Tom have been involved in the DIFC Courts since their creation having drafted the Rules of the DIFC Courts. They have appeared and continue to appear and advise in most of the cases referred to in this article, some of which are pending before the DIFC Court of Appeal and Union Supreme Court. Consequently they have sought to express their views in general and neutral terms. If specific advice is required they may be contacted via clerks@xxiv.co.uk.

    [1] Oger Dubai LLC v Daman Real Estate Capital Partners Limited [CFI 013/2016] (6 July 2016); Standard Chartered Bank v Investment Group Private Limited [CFI 026/2014], (28 July 2016)

    [2] https://www.linkedin.com/pulse/new-dubai-difc-judicial-committee-rupert-reed-qc?trk=prof-post

    [3] http://us8.campaign-archive1.com/?u=f6464bad452b5c7f90d225810&id=8307ba447f&e=f4914e4257

    [4]http://www.clydeco.com/insight/article/new-judicial-tribunal-for-the-difc-courts-and-dubai-courts

    [5] http://www.lexology.com/library/detail.aspx?g=aed9f778-e1c7-432a-bc93-e4b79f4a2d45

    [6] [CA-001-2011] (11 May 2011)

    [7] [CA-004-2015] (19 Nov 2015)

    [8] 3 April 2016

    [9] The case is more fully examined in “DIFC Court Takes Expansive View of Jurisdiction and Seat of Arbitration”, https://www.linkedin.com/pulse/difc-court-takes-expansive-view-jurisdiction-seat-michael-black-qc-1?trk=mp-author-card

    [10] [CA-002-2011] (22 Jan 2011)

    [11] [CFI-012-2012] (30 Apr 2013)

    [12] [CFI-014-2010] (21 Oct 2010)

    [13] [CFI-024-2015] (9 December 2015)

    [14] Set out in the Amended Order dated 28 December 2015

    [15] [CFI-026-2016] (28 July 2016)

    [16] [ARB-xxx-xxx] (29 Nov 2014)

    [17] [ARB-003-2013] (2 April 2015)

    [18] [ARB-001-2014] (5 Jan 2015)

    [19] op cit

    [20] [ARB-001-2014] (12 July 2015)

    [21] [ARB-xxx-xxx] (29 July 2015)

    [22] [CFI-013-2016] (16 June 2016)

    [23] [CA-007-2015] (25 Feb 2016)

    [24] op cit

    [25] [CFI-026-2014] (1 August 2016)

    [26] ¶ 21

    [27] ¶ 19

    [28] [CFI-016-2013] (25 November 2013)