The Story of the Dubai International Financial Centre Courts: a Retrospective

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2018

The Story of the Dubai International Financial Centre Courts: A Retrospective

Jayanth K. Krishnan Indiana University Maurer School of Law, [email protected]

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Recommended Citation Krishnan, Jayanth K., "The Story of the Dubai International Financial Centre Courts: A Retrospective" (2018). Books by Maurer Faculty. 199. https://www.repository.law.indiana.edu/facbooks/199

This Book is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Books by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. THE STORY OF THE DIFC COURTS ‘This book combines a historical narrative with the insight of a distinguished legal academic, written in a readable style which will make an excellent read as well as providing an authoritative history of the first decade of the DIFC Courts.’

– Dr Michael Hwang THE STORY OF Chief Justice of the DIFC Courts (2010–2018) THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS A Retrospective ‘Since the 1990s, international commercial arbitration has been de rigueur in the resolution of cross-border commercial disputes. International commercial arbitration, however, has become procedurally complicated, costly and has encountered difficulties in recovering the assets of responding parties outside the seat of arbitration. For these reasons, there is a new player in international commercial dispute resolution: international commercial courts in the form of the Dubai International Financial Centre (DIFC) Courts. Whereas the Commercial Court in London has, for some time, resolved international commercial disputes, the DIFC Courts break new ground in the establishment of such institutions. How does an Arabic-speaking religious monarchy establish an English-language court that uses English common law procedural rules to attract international business to Dubai, the financial “hub” of the Middle East? In this fascinating account, Professor Jayanth Krishnan skilfully describes the story of the DIFC Courts. Positioning the DIFC Courts in the literature on law and globalisation, he explains the remarkable Jayanth Krishnan is the Milt and Judi Stewart Professor collaborations that lead to its founding, the of Law at Indiana University Bloomington Maurer legislative and regulatory mechanics that School of Law. He is also the Director of the Stewart facilitated the DIFC Courts’ operation, how the Center on the Global Legal Profession at Indiana. DIFC Courts function within the UAE judicial He is the author of numerous publications on the legal hierarchy, and the jurisdictional innovations of Can Western-based, English-speaking, common law profession, comparative courts, legal education, and the DIFC Courts. Professor Krishnan further commercial courts operate successfully in an environment discusses recent challenges to the DIFC Courts that are not their own—such as in the Middle East? This globalisation and the law, a sample of which have been Jayanth K. Krishnan published by the California Law Review, Harvard Human and pushback from the onshore courts, illustrating question is not a simple thought experiment but rather Rights Journal, Texas Law Review, Law and Social Inquiry, that the role of the state has hardly been erased in the reality that has occurred since the mid-2000s in the and the Annual Review of Law and Social Science. Krishnan economic and legal globalisation. At once detailed Emirate of Dubai. This exciting book tells the remarkable is the co-editor of a Cambridge University Press book and accessible, this chronicle, which will be of history of how the ‘Dubai International Financial Centre on law and religion, and other works of his have wide interest to a number of audiences including Courts’ emerged. Drawing on extensive interviews with appeared in volumes published by Cambridge and practitioners and academics, blazes exciting paths key stakeholders involved in the process, along with rich Stanford University Press. He is also the recipient of in the study of international dispute resolution in original documents as well as all of the Courts’ judgments, Indiana University Bloomington’s Trustees Teaching the most unlikely of places.’ this first-of-its type narrative offers important lessons Award and the Leon Wallace Teaching Award, which for those seeking to understand more fully the complex is the highest such honour at the Maurer School of Law. – Associate Professor Matthew Erie interplay of how law, legal institutions and legal and University of Oxford Jayanth K. Krishnan political actors operate in today’s globalised world. ‘We can be proud that Professor Krishnan has ‘This very well presented book offers a unique and followed his authoritative study of the Dubai World thorough, yet concise, account of the history of the Tribunal with this comprehensive and highly readable DIFC Courts through its first decade. The book account of the DIFC Courts from their inception in explores the evolution of the DIFC Courts from 2005 to their prominent international position today. their initial conservative approach to a bolder stance Rightly he pays tribute to the vision of those who which helped them to integrate into the existing have brought this about, and he will inspire those Dubai and UAE judicial system, as well as having who take it forward in future.’ their judgments recognised and enforced on a global scale. Of course there have been, and remain, tensions – Sir Anthony Evans and challenges that exist for the DIFC Courts and Founding Chief Justice of the DIFC Courts Professor Krishnan also offers insight into those in his very readable style. Overall, Professor Krishnan’s narrative of the DIFC Courts provides us with an important reminder of their significance as one of ‘Professor Krishnan weaves together insights gleaned the key pillars of Dubai’s legal system today.’ from interviews with key players and case law to tell – Essam Al Tamimi a compelling story of the creation and development Founding Partner of Al Tamimi & Company of the Dubai International Financial Centre (DIFC) Courts. All too often we assume courts to be static institutions. But the DIFC Courts have evolved over time to take a more expansive, but not unlimited, position regarding their jurisdiction. Much as their ‘In this impressive study of law and globalisation, creators anticipated, foreign investors have come to Professor Krishnan provides a panoramic perspective rely on these courts. They have also assumed a on the origins and early evolution of the Dubai critical role in the local legal landscape, complementing International Financial Center Courts. He skillfully the Dubai Commercial Courts. Professor Krishnan’s shows the court’s early achievements and its looming analysis ought to be equally appealing to practitioners challenges, as the UAE continues the process of and scholars, making the book essential reading for constructing the critical legal infrastructure for both groups.’ an economy and society in transition. This deeply empirical and interdisciplinary book is sociolegal – Professor Kathryn Hendley scholarship at its finest.’ William Voss-Bascom Professor of Law and Political Science at the University – Professor Ajay K. Mehrotra of Wisconsin-Madison Executive Director and Research Professor at the American Bar Foundation, Professor of Law and History at the Northwestern University THE STORY OF THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS Published by Motivate Publishing

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Directors: Obaid Humaid Al Tayer, Ian Fairservice THE STORY OF THE General Manager: Chris Capstick Editor: Aswathy Sathish DUBAI INTERNATIONAL Project Manager: Malda Smadi Senior Designer: Noel de la Pena FINANCIAL CENTRE COURTS A RETROSPECTIVE © DIFC Academy of Law 2018 Jayanth K. Krishnan All rights reserved. No part of this publication may be reproduced in any material form (including photocopying or storing in any medium by electronic means) without the written permission of the copyright holder. Applications for the copyright holder’s written permission to reproduce any part of this publication should be addressed to the publishers. In accordance with the International Copyright Act 1956 and the UAE Federal Copyright Law No. (7) of 2002, Concerning Copyrights and Neighbouring Rights, any person acting in contravention of this copyright will be liable to criminal prosecution and civil claims for damages.

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Book design by Dana Taha and Sheryl Varghese This monograph would not have been possible without the support of a number of people. First, I wish to thank the DIFC Courts’ personnel for the time they gave to me and for providing me with access to cases, articles, and other literature and materials that were invaluable for this study. In addition, the staff, lawyers, and justices who sat with me to teach me about how the judicial process works at the DIFC were absolutely instrumental for my understanding of this subject. In particular, I would like to thank Chief Justice Michael Hwang, Sir Anthony Evans, Deputy Chief Justice Sir David Steel, Sir John Chadwick, Justice Roger Giles, Justice Judith Prakash, Justice Tun Zaki Bin Azmi, Justice Sir Jeremy Cooke, His Excellency Justice Omar Juma Al Muhairi and His Excellency Justice Ali Shamis Al Madhani. There were others as well who assisted me greatly, including Amna Al Owais, David Gallo, Natasha Bakirci, Cheryl Fernandes and Hayley Norton. One person, in particular, Mark Beer, deserves special thanks. Mark was an incredibly helpful respondent not just for this study, but also for two earlier studies that I led—a pilot project on the DIFC Courts in 2014 and another on the Dubai World Tribunal in 2016. He was the first to introduce me to how the DIFC Courts operate, and without his patience in educating me about this institution, none of my DIFC work could have been completed.

I also need to thank the Dubai government, and particularly the Dubai Courts, for their kind assistance in providing me access to data, literature, personnel and their facilities during my time in Dubai. I appreciate the government’s willingness to welcome me to the local Dubai Courts, and ACKNOWLEDGEMENTS everyone with whom I met there was generous with their time.

In addition, I am grateful to the number of lawyers who I interviewed for this project. Each of them provided me with thoughtful assessments on their perceptions of the DIFC Courts, and how, more broadly, globalisation has influenced Dubai’s hopes to be one of the world’s leading commercial hubs.

I am also appreciative of the support I received from my deans at Indiana University-Bloomington’s Maurer School of Law: Austen Parrish, Donna Nagy, and Christiana Ochoa. I wish to thank my colleague at our IU Stewart Center on the Global Legal Profession, Lara Gose. Priya Purhoit and Harold Koster were important colleagues and co-authors, respectively, on my two previous Dubai-based projects. I also appreciate the research assistance that was provided to me by Vitor Dias, Anirudh Konda Reddy, Ali Van Cleef, and Alyssa Gerstner.

Finally, I wish to thank Motivate Publishing, which had the aspiration of publishing an independent research assessment of the DIFC Courts at this momentous time in the Emirate’s history, and specifically, Charlie Scott and Aswathy Sathish, who were instrumental as my editors. The publisher funded this project and gave me complete academic freedom to write what hopefully will be seen as a fair, rigorous, and comprehensive assessment. I am grateful for having this opportunity. CONTENTS

ACKNOWLEDGEMENTS vi

INTRODUCTION 1

CHAPTER 1: The Establishment, 10 Development, and Growth of the DIFC Courts

CHAPTER 2: Judgments and the Debate 36 Over Enforceability: Jurisprudence and the Challenge in the Early Years

CHAPTER 3: Decree 19 and the 82 Introduction of the Judicial Tribunal

CONCLUSION 100

NOTES 118

INTRODUCTION world’s leading financialcentres. the the Dubaieconomy into one of to transform 1998, the rulingfamilyannounced that it wanted a decision that would forever alter its future. In Twenty Dubaimade years ago, the government of permitted by the Emirate’spermitted authorities. practices that existed in the West simply were not it retained amore traditional milieu where social culturally more progressive than other Arabcities, living inthe Emirate. Inaddition, while Dubaiwas those an important presence inthe dailylife of was ‘relegated role,’ to asecondary Consider, for example, that although Sharia law Dubai. were unfamiliar with the localculture of There wasalsothe reality that these investors Europe, the United States andAsiadidnot speak. Arabicwasone that most investors from of foreign investors. For onething, the locallanguage facts that couldnot be ignored, especially by At the same time, however, there were certain the list. the top of economic development, surely Dubaistood at hubforbe the new global trade, business and any place inthe region could competitors. If the same trepidations asthey didother potential many foreigners who didnot view the Emirate with Arab Middle East, Dubaiwasseen as an oasisby this initiative areality. Furthermore, within the hadthe willto makeand capital, andits leaders in asense, audacious. True, Dubaihadresources 1 The planwas, The 2 it still had

attractive place for foreign investment. infrastructure—inlegal order tomake Dubaian what of the government needed to do—interms Allen &Overy. wasto determine purpose The CliffordLondon-based law Chance and firms, two elite 1998 and2003it sought the counsel of it recognised these deficiencies aswell. Between liberalisation process. To the government’s credit, the economic Dubaibegan inevitably to come, if matters that legal wereencountered the types of and followed acivillaw system that hadnot transactions. localcourts were The runinArabic cross-border, commercial international of was not equipped to handle the complexities 1990s. Dubai’s system, these investors legal feared, foreign investors duringthis period inthe late Yet, there wasanother loomingissue that worried Western Hemisphere. Asia, the Middle East, Europe, Africaandthe gateway bridgingthose working in South andEast strategic advantage investors—a for international asasignificant position inthe Gulf geographic but now with greater clarity: to promote Dubai’s transactions. government The restated its objective hubforthe Emirate commercial aninternational in order to attract foreign investment and to make Financial Centre—was establishedInternational business campus. DIFC—or Dubai The No.Law 9,which created cosmopolitan aglobal, United ArabEmirates authorised Dubai to pass Ultimately, the in2004the federal government of 4 3

01 THE STORY OF THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS Introduction 03

Dubai’s Law No. 9 outlined that there were to be Since that time, Dubai’s government leaders have The focus of this book is on the DIFC Courts three components to the DIFC: (a) an authorising promoted the DIFC Courts with great enthusiasm. and how they have operated since coming into agency that would be the regulatory body overseeing Western common law and Western legal principles existence. There will be an examination of employment law, corporate law, commercial law, are used, as is English, in order to make the the reception the Courts have received both and real estate; (b) a regulatory agency that would DIFC Courts accessible to global professionals. domestically and internationally, as well as how oversee all financial matters involving the DIFC; Furthermore, the judges of the DIFC Courts effective they have been in delivering adequate and, most interestingly, (c) a set of common-law (on both the Court of First Instance and Court legal remedies, as seen by those who have courts. For the first several years, the DIFC Courts of Appeal) are internationally respected. (The participated in the process. The underlying served as the adjudicatory forum for all commercial current Chief Justice is Dr Michael Hwang, an question that this book asks is whether a Western- disputes within the DIFC. In 2011, following Oxford-educated Singaporean lawyer who headed style, common law judiciary can be exported the passage of Law No. 16, the DIFC Courts the litigation and arbitration department of the to a country such as the UAE. additionally were granted jurisdiction over any firm Allen & Gledhill.) The goal is to have the commercial matter (domestic or international) so DIFC Courts be efficient, just, and legitimate. The answer, this book argues, is yes. Although, long as all parties gave consent.5 They are to serve as an accessible Western-style as will also be discussed (and as the various judicial system within this Arab-Gulf monarchy. stakeholders realise), constant vigilance is required Indeed, the arrangement of the DIFC Courts in order to ensure that such courts remain within the UAE is just another example of how independent. Moreover, as the end of this story globalisation is reconfiguring the relationship reveals, the DIFC Courts are facing particular between legal institutions and political systems challenges of which they have not seen to-date. in the twenty-first century.6 And as this book goes to press, it is uncertain as to what the outcome of this situation will be.

*** Others haveOthers alsoconducted parallel research. arbitration, within its borders.as international abroad by embracing foreign practices, legal such describes governments inviting investment from reliability, efficiency, andpredictability. to investors that there willbe judicialfairness, states procure foreign investment andensure literature, concentrating specifically onhow such globalisation. Mark Massoudhassurveyed the how operate law actors inthis era of andlegal layer to the broader scholarly on discourse the DIFCCourts addsanother emergenceThe of LITERATURE BODY OFRELEVANT INTO THELARGER FITTING THIS PROJECT THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS 7

Massoud

8 policy. such activity shaped, andwasshaped by, legal state transitional times inLatin America argues that and Garth’s work onrights lawyering during professionals legal insuch systems. Dezalay of focuses not somuch oncourts but onthe actions respective regimes. institutional outlets for those aggrieved by their show that judiciaries can,at times, alsoserve as political capital. to maintain control, to govern, andto enhance in which governments use judicialinstitutions and Latin America have demonstrated the ways For example, scholars focusing onAfrica,Asia lawyers themselves. the guanxi, orthe networks andconnections of the issue, and apparatus, the political nature of how embedded the lawyers are within the state at navigating upon: system depends the legal justice strides, but that more frequently, success these lawyers are able to make modest social more cautious—demonstrating that occasionally civil andcriminallawyers inChina,however, are declined duringtransitions. able to thrive innon-democratic periods and shows that socialjustice lawyering ironically was 11 Meili’s research, alsoonLatin America, 9 Simultaneously, these studies 10 13 Asprt aeo scholarship Aseparate wave of 12 Michelson’s studies on diminished aswell astheir effectiveness. uncommon, they quicklysee their socialcapital to meet these highexpectations, which isnot prosperity to asociety. Yet, when they are unable as people who canbringabout legitimacy and professionals canbe seen aspotential saviours or to unwanted pressure. Additionally, these legal order. At the same time, they may be susceptible be viewed asapotential challenge to the existing intractable dilemma’. societies. Often such professionals ‘face an and judges seeking to operate within globalising lawyers emotions of andconflicting the personal to this study involve those that have examined works that applyPerhaps the most relevant set of and boldly introducedand boldly American andBritish-style the DIFCCourts, Dubaihasaffirmatively of their society? With the introductionsovereignty of infrastructure, while not altering the character and services for foreign investors, strengthen their legal providing judicial capital yet of lackahistory can state who leaders wishto attract foreign question that hasaclear tension within it:How scholarship described aboveThe leads to a even to question their own professional relevance. the society and involvement inthe development of on this group, leading them to scale back their various cantake anemotional toll stakeholders to live upto the many pressures and demands by Introduction 14 Onthe one hand,they can 15 Failing challenges andcritiques they have faced. the Courts have fared, noting the accomplishments, retrospective—a full decade on—regarding how It thus seems appropriate to provide acareful authority, courtroom andanofficial andoffices. the Courts’ of rules outlining the parameters administrative operations, afinalised set of judges, afull-time registrar to oversee panel of time thatthe first the Courts hadacomplete marked gave aspeech where he noted that 2008 Evans,Justice, the DIFCCourts’ inauguralChief significant milestone. Ten years ago, Sir Anthony for thirteen years, this year—2018—serves asa While the Courts have been inoperation now this institution. and nuanced assessment of book, therefore, isto provide acomprehensive this of establish the DIFCCourts. purpose The this decision to unexpected ramifications of Concomitantly, however, there have been the foreign involved. actors cooperation between the Dubaigovernment and the been anoverall success, mainlybecause of As this bookwilldemonstrate, this experiment has commercialinternational law disputes increase. have seen their docket grow andtheir impact on sitting in2005,the DIFCCourtsSince its first common-law courts intoits mainstream judiciary. 16

05 ntefraino the Courts themselves. of in the formation the mainfigures who were involved of biographies peppered throughout this chapter willbe brief which their jurisdiction hasexpanded. Finally, their workload over the years andthe manner in the DIFCCourts, aswell as the organisation of describe will from Britain. Inaddition, Chapter One the foreign lawyers andjudges who were primarily forged between Dubai’s government and leaders relationships that were will be adiscussionof onhowhistory the DIFCCourts emerged. There next four chapters. Chapter One willprovide a this bookspansacross the presentationThe of THE CHAPTERS OUTLINE OF THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS

assertions from the critics. the serious eventuallyCourts’ supporters fended-off overall, the rebuttals andevidence offered by the that occurred in2016.Asthe discussionhighlights asubsequent development providing ananalysisof and those who were more alongwith sceptical, championing the DIFCCourts’ effectiveness set forth the ensuing debate between the advocates alternative to resolve two disputes? These chapters for arbitration when the DIFCCourts were abetter judges inthe world. Why, therefore, would clients opt renowned the most globally adjudicators some of venue wascheaper, more andhadas efficient, arbitration. Courts arguedengaged: The that their and domestic commercial lawyers working inDubai to anestablished practice inwhich many foreign onto the dispute resolution scene posed achallenge the DIFCCourts consider that the emergence of respected within Dubaiandinternationally. Also extent their jurisdiction andauthority would be by the Courts would be enforceable, andto what here revolved around whether judgments delivered operation. issues The and subsequent years of matters that the DIFCCourts faced inthe early TwoChapters to the andThree willthen turn 17 essential for facilitating such asuccessful transition. inplace is law system firmly predictable rule of Asthis book willargue,global. having astable and from one that islocalorregional to one that is howto understand best to transition aneconomy investors, who clients andpolicymakers are eager immense importance for scholars, lawyers, judges, Answeringcountry? these questions willbe of and aforeign judicialsystem into asovereign foreign incorporating laws consequences of other jurisdictions? Andwhat are the broader lessons from this experiment, be exportable to applicable to the Dubaicontext? Canit, andthe Furthermore, isthis DIFCCourt-experience only frequently being discussed. to operate manner inthis isnow aquestion more Dubai. But for how longwillthe Courts continue investorsinternational were to have confidence in yes—that foreign judges were aprerequisite if Initially, the response by was the Courts’ framers to remain by primarilystaffed judges from abroad. emerged, includingwhether the DIFCCourts need arisen, andadditionally, other questions have which they work. Yet, certain tensions have now should have achoice systems under inthe legal the propositionaccepted that foreign investors governmentDIFC Courts into its jurisdiction. The course, voluntarily adopted the andaffirmatively had past experience with such courts. Dubai,of markettheir global presence but which have not into statesjudiciary that are seeking to enhance importing aWestern-style, commonlawof Finally, the Conclusionexamines the implications Introduction

07 parties involved andrulingsrendered. issues heard, in order the types of tounderstand are published online, these matters were analysed cases from the DIFCCourts certain number of how this institution functioned. Also, because a first-handinterviews andinteractions, Ilearned the DIFC Courts. Through these head registrar of andthe to spend time with personnel permission 2014,Iwasgranted waves. Duringthe summer of dataThe collection for this study occurred intwo METHODOLOGY A WORD ABOUT THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS

19 In addition, in2014Iinterviewed twenty-six Courts. Dubai, inorder their views onthe DIFC to gauge locatedthe in seventy law firms international experienced commercial lawyers from across aho these respective institutions. each of Interviews were from conducted with officials Commerce (DCCI). andIndustry Chamber of the Dubai forum established under the auspices of Arbitration Centre (DIAC), the latter being a District Court andthe DubaiInternational settings for commercial matters—the localDubai the two other majorcompeting dispute resolution multinational corporations. Also, Ispent time in field andwithin-house lawyers from different local DubaiEmirati lawyers who work inthis 20 Interviews were alsoconducted with 21

competing institutions that exist within the Emirate. fared andare perceived, incomparisonto the other how the DIFCCourts have me with a fuller picture of provided inquiry relying onmultiple methods of these issues. Insum, pieces that make mention of reports,and bar-journal andthe few scholarly newspaper accounts, practitioner content of analysis resolution inDubai.Inparticular, Iperformed sources that exist onthe DIFCCourts anddispute material, Ialsorelied onthe minimalsecondary sourced this primary Along with the collection of their sentiments towards the DIFCCourts. interview attendees who spoke candidlyabout this several-hour affair, Ihadthe opportunity to clients andstate were officials present. During lawyers,influential judges, leaders, corporate Law, Dubai’s most whereof more than 700of annual function hosted by the DIFC’s Academy 2017,Iwasinvited to amajor in November of lawyers, and(d)government policymakers. And of (b) lawyers who Imet with in2014,(c)anew set whom Imet in2014, DIFC Courts, many of the of wave were interviews with: (a)the staff this second sitting onthe bench.) Alsoaspart of Courts. (Currently, ten judges there are atotal of eight past andpresent judges from the DIFC the research, includingwith during this phase of interviews were in-depth conducted round of Decree 19in2016.Asecond given the passage of DIFC Courts since that publication—especially the to take stock of 2017,Ireturned in the fallof While aninitial pilot study wasissued in2014, Introduction

account—the narrative which to next. we turn the DIFC Courts be repeated duringthe telling of For the that reason, the work DWT of will not since 2016, it deserves its own treatment. independent the recent developmentsstory. Especially inlight of However, the DIFCCourtsisits own the evolution of reputation, particularly among government officials. the DIFCCourts’ positive it, certainly isevidence of insolvencyAmerican andEnglish laws) to guide a Western framework legal (here, key aspects of infrastructure asthe DIFCCourts andadopted That the DWT involved and the same personnel ora fDispute Resolution.) paper appeared(The inthe Journal of was originallyconceived by the decree’s drafters. as well ashow its jurisdiction expanded beyond what the DWT andhow this judicialtribunal functioned, Harold Koster andIpublished adetailed article on known as‘DubaiWorld’.corporation In2016, insolvency proceedings agovernment against history, andit wasestablished primarilyto deal with forum that occurred at aunique moment inDubai’s by the DIFCCourts. But the DWT wasaunique physical facility wasthe same asthe courtroom used came from the DIFCCourts, andthe tribunal’s adjudicators DWT’s2008 and2009.The panelof DIFC following financialrecession the global of the was aseparate institution that emerged out of focusing onthe DubaiWorld Tribunal (DWT), which Finally, Ishouldmention that this bookwill not be

09 n rwho the DIFCCourts and Growth of Establishment,The Development, CHAPTER ONE and 1984. Commerce] arbitrations’ Chamber ofin] two majorICC[International arbitration lawyer, ‘including[participating to hiswork inthis area, he wasalsoanengaged six years, beginning in1958.Andaddition maritime andcommercial for barrister twenty- asahighlyreputed Anthony established himself eight years. Before histime onthe bench, Sir beginning in1992,for Appeal on the Court of Wales, onthe HighCourt in1984andthen first proceeded to serve and asajudge inEngland 1958, named aQueen’s Counsel in1971,and to be. how the DIFCCourts came well asthe details of how he wasappointed to this inauguralposting, as as he isknown, provided anhistorical account of the DIFCCourts, Sir Anthony Evans. Sir Anthony, Justice of interview to meet the founding Chief In early November atwo-day 2017,Iwasgranted CONTEXT: 2005–2008 BRIEF HISTORICAL 1960. (BA,degrees MAandLLM)between 1957and at St. John’s College, Cambridge, receiving three 1 2 Born in1934,Sir Anthony waseducated Born He wascalled to the bar(Gray’s Inn)in 4 3 inParis between 1982

ob ato the DIFCCourts became apriority. to be part of crucial. Accordingly, recruiting talent top global that having an unimpeachable was judiciary this process, he recognised business. Aspart of particularly the Centre, wasasafe place to do confidence andassurance that the Emirate, and international-investor community couldhave the DIFCsothe and raisingthe reputation of consolidating personnel Dr Omarhadthe task of financial complex. the Centre into afirst-rate globaltransforming to the DIFC in2004with the expectation of well-known business executive who wasrecruited Anthony worked wasDrOmarbinSulaiman, a key people process inthis the with whom Sir of steam. Oneplans for to gain the Courts began was not until afew years later, however, where DIFC complex emerged duringthe late 1990s. It Anthony explained, the idea forSir creating the As it wasdiscussed inthe Introduction, andas Financial Centre.’ [the] DubaiInternational and administration of strategic development, operational management (DIFCA), astatutory body tasked ‘to oversee the the DIFCAuthority as the Director General of Dr Omar’s initial appointment (2004–2006)was itself.judiciary the building that would eventually house the the DIFC,including funding for the infrastructure of was because DrOmarwaspivotal insecuring developing andestablishing the Courts.’ responsiblewas [significantly] for Omar ‘Dr 7 5 According to Sir Anthony, 6 The reason The

11 HH Sheikh Ahmed bin Saeed Al Maktoum, Chairman and Chief Executive of Emirates Group, and Dr Omar bin Sulaiman, former Governor of DIFC, opening the DIFC Courts in 2008. THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS late Sheikh Maktoum binRashidAlMaktoum. upon the appointment by Dubai’s then ruler, the tookuphispost the followingHe officially year the Courts needed anon-the-ground person resident andthus waspresent onlypart-time, however because Watherston wasnot aUAE Sir Anthony lauded Watherston’s contributions; Privy Counciluntil hisretirement there in2005. theUnited Kingdom’s Judicial Committee of the (CBE), who hadserved asthe Registrar of the BritishEmpire decorated Commander of Consultant Registrar wasJohn Watherston, a on aswell. For example, the DIFCCourts’ first There were other key appointments made early campus but instead ‘onlysandandconstruction’. 2003, when, at the time, there wasnocommercial Sir Anthony, inparticular, hadvisited Dubaiin more prosaic.’ equivalent English “AccessThe to Justice” is translation, “donot be afraidto ask for justice.” to the ancient Arabic inscription which reads, in hasmade it possibleto them. This for usto live up are andIexpress truly independent, my gratitude powers. Courts The the separation of of concept andthe constitutional judicialindependence of at alltimes have scrupulouslyobserved the principles Dubai on record that they andthe Government of premises asearly 2007.Ishouldalsoplace asApril ‘[they] enabled usto open these magnificent court who broughtofficials himto the DIFC: years later regarding DrOmarandthe Emirati As Sir Anthony remarked at aceremony some 10 10

Excellency MohammedAlShaibani. Notably, Court, and specifically its leader since 2008,His Dr Ahmed BinHazeem well as aswith the Ruler’s courts who were led then by Director General meant developing close ties with the localDubai For the DIFCteam, executing onthis philosophy disputes, there hadto be domestic ‘buy-in’. hubfor resolvingas aninternational commercial the Courts were to succeed the localpopulation. If respecting andworking closely with importance of the UK. AlOwaisandher colleagues recognised the in law fromcommercial Kingston University Additionally, anLLMininternational she hadearned in 2011,which allowed for any party to select the judiciary known asthe ‘opt-in’ feature of what became strongly supported the addition of DIFC Courts. DrBinHazeem, for example, embraced—rather than felt threatened by—the Dubai’s economic growth, both officials long-term wasessential for judiciary accepted globally because they each believed that and aglobalised practising inthe localand federal UAE courts. Justice,before that hadworked of inthe Ministry domestic lawyer and with aprestigious law firm a key addition because she hadbeen arespected AmnaAlOwaisin2006. Al Owaishiring of was bring aboard savvy Emirati staff, particularly the A significant move made by this pairwasto Courts’ operation inthose early years. and together she andWatherston facilitated the Johar aptly served inthis role asActing Registrar, to coordinate their day-to-day activities. Sunita 11

Belhoul. was headed by Director General DrLowai (LAD),whichDepartment opened in2008and Dubai’s Affairs Legal with the Government of Furthermore, the DIFCteam alsobuilt bonds ‘... the regulatory framework for the legal interview from some time back: from the Centre. AsDrLowai stated inan forged between themselves andtheir counterparts visionaswell ties thatglobal asthe deep were supported the DIFCCourts’ missionindicated their Courts. from That officials the LADfully between allgovernment inDubai’. departments as the ‘higher supervision andcoordination body which wascritical given that hisinstitution serves HEMohammed AlShaibani, imprimatur of disputes. the DIFCCourts asthe venue for resolving h oeneto Dubai,’ the Government of today matters concerning it ‘supervises all legal regulations, andsignificantly for this study, In the past it drafted model legislation and the government.and opinionsonmatters affecting professionals, alongwith publishing research legal training programs to legal LADoffers The domestic lawyers andforeign consultants. legal professionthe legal by inthe country licensing the government inlawsuits. It alsooversees advising, representing, anddefending in charge of several key regulatory functions. For instance, it is agencies inthe Emirate that hasasits mandate the most critical LAD isarguably one of h salsmn,Dvlpet n rwho the DIFCCourts Establishment,The Development, andGrowth of 15 13 Established No. under Dubai Law 32,the Similarly, the DIFCCourts received the 16 including the DIFC DIFC including the

14 the DIFC Courts. It wasnot until 2008,when bonafides of andinternational independence government’s desire to showcase tothe world the the levels—a Appeal further indication of of Instance andCourt First cases at the Court of Justice Hwangwere the onlytwo judges to hear Indeed, from 2005until 2008,Sir Anthony and central focus inChapter Three.) 2010 andwillbeof Justice in Justice and then became Chief Chief cases. Michael Hwangfrom Singapore, hearing began earlier-mentioned jurists, Sir Anthony andJustice courthouse building hadyet to be constructed, two 2005.Even though adedicated early asOctober of sitting as to holdits first authorised the judiciary investors,attuned international the government soon aspossible andto ensure confidence among its commitment to seeing the Courts start as Dubai government. For example, to demonstrate put into place by critical steps the number of aCourts continued steadily, mainlybecause of the In fact, between 2005and2009,the work of having this domestic support wasindispensable. the DIFCCourts, Therefore, for promoters of other jurisdictions.’ standards andrequirements asmay be found in practices with similarprofessional obligations, tried andtested beston soundandinternationally in order to build arobust regulatory regime based introduce isto gradually regulationsDepartment the much inanascent stage. intention of The profession inDubaiisstill developing, andisvery 18 (Justice Hwanginitially served asDeputy 17

15 7

Michael Hwang SC and Sir Anthony Evans attend a swearing-in ceremony for new DIFC Courts judges by HH Sheikh Mohammed bin Rashid Al Maktoum, Vice President and Prime Minister of the UAE and Ruler of Dubai, in 2008. fOriental andAfricanStudies inLondon.) of had obtained commonlaw at degrees the School the Courts from the early days. Inaddition, they and they played animportant role inestablishing Senior Judicial before Officers their appointment, into office.sworn (Note: Justices OmarandAliwere bench female judge inthe UAE) andthe first were YaakobNorma woman (the first onthe DIFC and aMalaysian, Justice Tan SriDato’ Seri Siti Justices AliAlMadhaniandOmarMuhairi— judges wasincreased. Two Emiratis—number of more cases started to enter the Courts, that the THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS Courts’ website, https://www.difccourts.ae/court-rules/.) website, Courts’ are dividedintofifty-sixpartsandare available onthe aroundpractitioners the globe. (The rules of eyes to how respected these rules were held inthe embraced by the Dubaigovernment, mainlydue the UK’s Commercial Court, andit was of rules procedural framework based primarily onthe was the DIFCCourts. This to finalise the rules of and Tom Montagu Smith—had been brought in prominent Black,QC barristers—Michael English representing the Dubaigovernment), two firms UK Anthony Evans (aswell aslawyers from those people like Sir In addition, uponthe urging of the DIFCCourts asaninstitution. reputation of capital, which onlyhelped further strengthen the social own their appointees brought with them this chapter reveal,new these ateach the end of of biographiesand David Williams QC.Asthe brief Sir Anthonymembers: Colman,SirJohn Chadwick Also that year, three other foreign judges became 19

nry i oko eaf fthe DIFCCourts energy. of Hiswork onbehalf someone who is seen ashaving boundless, optimistic brilliant, honest, charismatic, and eloquent, and asquestions—has been stellar. He isthought of the DIFCCourts andthose who have had of business community—among both those supportive the years, Beer’s reputation and within the legal Edge &Ellison.)Over of to that with the firm Clyde &Company andprior of for the law firm MasterCard, he worked asacommercial lawyer Counsel at (Before MasterCard Corporation. lawyer Vice andformer President andLegal the DIFCCourts. Beer wasanOxford-trained of elevate presence, the global power andprestige many ways Beer’s appointment helped further judiciary’s full-time, Dubai-based Registrar. In Mark Beer asthe in 2008with the namingof administratively, duringthese early years occurred Perhaps the last important piece put intoplace, a claimant ordefendant. ‘urgent application [needed to] be made’ by to-go at amoment’s notice if, for example, an DIFC Courts were accessible, reliable, andready- enabled the government to make the that case the available to be inDubai.Such asituation thereby the Emirate, were they notin from’ outside of necessary, judges to be ‘virtual’ andto be ‘beamed system, allowing lawyers, parties andeven, where Courts adopted asophisticated technological to the institution. Moreover,‘official-ness’ the and jurisdictionally—gave and aformality Courts shouldoperate—procedurally, substantively Furthermore, defining the tenets for how the 20

will certainly achieve inthe future.’ commend himfor what he hasdone andwhat he his talents are andIsimply now infullflood, internationally. Allow me anautical metaphor— for the Courts inDubaiandthe UAE and effective team, andhe isapowerful ambassador hasbecome an the Courts’ staff his leadership Registrar.has brought of Under to the office andaboveefficiency he allthe visionandflair Courts were to recruit himorto describe the ‘I cannot even begin to say how fortunate the too hassunghispraises, notinghow: strong andlong-standing andbe based on arule to assure investors that the DIFCwasgoingto be philosophy was that stability wasneeded inorder the institution. The vision, mission,andwork of the were (andhave since been) supportive of the Courts, namely because successive Governors there proved to be nodirect, negative impact on which However, caused some initial concerns. That year, from DrOmardeparted hispost, 2009. especially vital beginning inthe springof provedCourts anddomestic officials to be strongThe bondsthat developed between the legitimate by the commercial-investor world. thatjudiciary would be functional andseen as and enthusiastic about opening anew, global 2005 highlight agovernment that determined was To reiterate, these developments that in began 03fo h ue fEngland. 2013 from the Queen of the British Empire Award in Honourable Order of the Most himthe prestigious of Officer has earned h salsmn,Dvlpet n rwho the DIFCCourts Establishment,The Development, andGrowth of 21 Sir Anthony 22

***

for this objective. DIFC the best opportunity to continue reaching commercial law asitsframework, allowed the first-rate infrastructure, aswell asEnglish and domestic officials, asophisticated staff, and Having cooperation between involved foreign law template that wasrecognised andrespected. of 23

HE Justice Ali Shamis Al Madhani during the DIFC Courts first sitting in 2005. in sitting first Courts DIFC the during Madhani Al Shamis Ali Justice HE

and Sulaiman bin Omar Dr DIFC of Governor former Evans, Anthony Sir

Justice Chief former Suwaidi, Al Jabr Rashid Mohammed HE Justice Omar Juma Al Muhairi, Chief Justice Michael Hwang SC, advocate advocate SC, Hwang Michael Justice Chief Muhairi, Al Juma Omar Justice HE olwdfnlyb bigdborpiso the judges who have sat onthe two mainbenches.followed finallyby of abridged biographies the DIFCCourts, this chapter delves into the organisation andworkload of ensuing section of The THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS judicial configuration. that isfederal innature andallows for aspecial Established in1971,the UAE hasaconstitution THE DIFCCOURTS AND WORKLOAD OF THE ORGANISATION and Court First Instance.’and Court First Appeal Cassation, Court of courts: ‘aCourt of of this system andthus hasits own set to opt-out of Supreme Court. However, Dubaiwaspermitted thatfederal judiciary hasat its apex aFederal a Court of First Instance that First hasjurisdiction over: a Court of there are two levels to the DIFCCourts. There is system couldemerge inDubai.Asdiscussed, that a parallel courtit isperhaps not surprising 24 There isaunified,tiered 25 Given this backdrop,

(This last point wasadded in2011.) (This pursuant to specific, clear andexpresspursuant provisions.’ arises, provided that such ismade agreement action with it whether before orafter the dispute inwriting to file suchthe parties agree claim or 5. Any civil orcommercial or actions where claims and regulations. jurisdiction inaccordance with the DIFC’s laws 4. Any application over which the Courts have accordance with the DIFC’s laws andregulations. DIFC’s bodies, which are subject toobjection in adecision made by3. Objections filed against the that hasoccurred inthe DIFC. in whole orinpart, inthe DIFCoranincident fulfilled oratransaction that out, hasbeen carried from orrelated to acontract that hasbeen 2. Civilorcommercial cases anddisputes arising the DIFC’s establishments. or any of novn h IC n fthe DIFC’s bodiesinvolving the DIFC,any of ‘1. Civilorcommercial cases anddisputes

official isneeded per benchofficial to hear cases. can sit astribunal adjudicators, although onlyone who members seven eligible DIFCCourts’ staff Instance has single-judge benches).Instance hassingle-judge First least three judges (whereas the Court of at discretionary jurisdiction andsits inpanels of last resort within the DIFC;it has is the court of SCT, as she noted, wasthat approximately 90per smaller monetary value.smaller monetary relatively forum isintendedtodealwithcasesof This Claims Tribunal (SCT), which wascreated in2007. the DIFCcourts isthe Small of arm An ancillary Instance.’ First Court of judgments andawards‘filed against made by the that matters hears Appeal There isalsoaCourt of the DIFCCourts Establishment,The Development, andGrowth of year. 2015 the Tribunal hasheard over 200cases per Courts, explained inarecent interview that since the DIFC judge andthe current Registrar of Al Owais, who today hasrisen to become anSCT employment claims.’) SCT’s elective jurisdiction inthe context of this latter situation there isno‘value limit for the DIFC’s establishments ...’ the any of the DIFC’s bodies orthe request of of any the DIFC’s laws based uponthe request of of any article may alsoprovide of an‘interpretation elect inwriting that it be heard by the SCT.’ aparty; andallparties employment of or former or ...where the claimrelates to the employment valuethe monetary ‘does notexceed AED500,000 the SCTisthat cases where it hears jurisdiction of 34 I at h ruetaheeeto the Infact, the proudest achievement of 33 30 27 Currently, there are 28 This appellate This body TeCuto Appeal Court of The 29 31 The The

(In ek fbeing filed. weeks of allcases brought to it settle within four cent of h eouino disputes inatimely fashion. the resolution of proceedings remotely, thereby further facilitating that it possesses allows parties to access the operates asa‘smart-court’, where the technology remains inplace to this day. the DIFCjudicialsystem, andit structure of DRAreconfiguredThe the entire governance broader than administering pro bonoservices. the DRA,aswe willsee, hasbeen much of Resolution Authority (DRA).Infact, the scope a newly created body known asthe Dispute No.Law 7the programme wasplaced under chapter, but Dubai briefly, through passage of point willbe further discussed inthe concludingThis under which the pro bonoprogram functioned. the framework In 2014,there wasarevamping of the world onhow best to provide thisservice. from lawyers andjudges from different parts of seeking advice bono clinicwith DIFCCourts’ staff project in2009, in2012it evolved into afullpro issues related to the DIFC.Initiated asapilot lawyers who counsel financiallyneedy clients on volunteer and external programme involving staff Alongside the SCT, there isanimportant pro bono 35 Furthermore, the SCT 38

37 36

23 Chief Justice Michael Hwang SC. disputes.’ disputes to property disputes andemployment significant andcomplex cross-border commercial 600 cases ‘across the various courts rangingfrom hadheard2014, the DIFCjudiciary approximately Mark Beer stated that from until its inception Finally, duringthe earlier-mentioned pilot study, THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS f h ihstlmn aeo the cases. the highsettlement rate of of islow because Appeal Instance andthe Court of First on the Courts’ website from the Courtof finaljudgments that are shownthe number of Yet Appeal. heard again, per annum by the Court of Instance, First androughly tenthe Court of cases by the SCT, forty to fifty casesheard per year by average approximately 200cases heard per year last three years (2015–2017),there have been on has been given extempore. Similarly, over the oralternatively,for adetermination, ajudgment often acase hasbeen settled without the need the reason,Again, according to officials, isbecause heard more matters than these figures indicate. Courts the three judgments though available, even DIFC website there are onlyten judicialorders and docket (2005–2007),onthe publicly searchable the Courts’ that inexamining three the first years of Breaking down the analysisabit further, consider treat asconfidential.) arbitration-related litigation, which the Courts heard inthe private Small ClaimsTribunal orin the other cases were trial. (Agoodpercentage of heard, onaverage 92per cent are settled before cases are Instance, where the most complex of 39 Be oe hti h or fFirst Beer noted that inthe Court of 40

* * * educationally, andprofessionally. sophisticated, anddiverse—geographically, demonstrates, this cadre hasbeen highlytalented, on the DIFCCourts. given that it served asthe key institutional influence the Commercial Court inLondon, operation of law countries who would alsobe familiarwith the from the outset judges were recruited from common his biography isnot included here). Furthermore, hisbackground wasprovided above,description of retired from the bench in2010,andbecause a or subsequent to, Sir Anthony. (Sir Anthony of the corps adjudicators who haveof sat alongside, annotations this chapter provides final section of havewho heard these matters, the judges the to As 41 Asthe discussionbelow

and then alphabetically. are listed chronologically biographies The JUSTICES: 2005–2017 OF THEDIFCCOURT ABRIDGED BIOGRAPHIES MICHAEL HWANG CURRENT CHIEFJUSTICE h he Justice isset to retire in2018. Chief The Arbitration at Hague. The Permanent Court of Arbitration, andthe International Court of Association’s Arbitration Committee, the London for Commercial Bar Arbitration, the International committees, Council includingthe International numerous arbitration international member of Singapore aswell holder or asasenior office of Adjunct) Professor at the National University Sydney andapart-time Visiting (andlater of (2008–2010), afaculty member at the University Singapore the Law Society of as President of a selective practice asCounsel. He hasserved arbitratorwho with practises asaninternational Queen’s Counsel) Singaporean equivalent of Justice HwangisaSenior Counsel (the Chief Sir Anthony.upon the retirement of InSingapore, the DIFCCourts in2010, Justice of became Chief Allen &Gledhill, and of the Singaporean firm was educated at Oxford, served asapartner at Courts beginning in2005.Born in Australia, he the DIFC Justice of Chief Deputy He wasthe first h salsmn,Dvlpet n rwho the DIFCCourts Establishment,The Development, andGrowth of

Administration. Chair for the Middle East Board for Courts Court Administration, where he presently isthe involved Association for inthe International African Studies (London)andhasalsobeen highly Oriental and Justice Aliattended the School of judge inthe localDubaicourts beginning in1998. as aPublic Prosecutor (1994–1998) andthen asa had experience inthe localDubaijudiciary, first He has Appeal. Instance, First andCourt of of 2008.Heserves asajudge onthe SCT,of Court He wasappointed to the DIFCCourts inJanuary SHAMIS ALMADHANI HIS EXCELLENCY JUSTICE ALI 43

27 Justice Tan Sri Dato’ Seri Siti Norma Yaakob, Chief Justice Michael Hwang SC, former Chief Justice Sir Anthony Evans, late former Deputy Chief Justice Sir Anthony Colman and Philip Punwar at the DIFC Courts in 2008. and AfricanStudies (SOAS) inLondon. Oriental two years studying law at the School of courts in1998.Additionally, Justice Omarspent by anappointment asajudge onthe localDubai career asaPublic Prosecutor in1994followed Identical to Justice Ali,Justice his Omarbegan in2005asaSenior JudicialDIFC began Officer. However, Appeal. histenureCourt of at the Instance and First as ajudge onthe Court of He wasappointed in2008to the DIFCCourts OMAR JUMAALMUHAIRI HIS EXCELLENCY JUSTICE THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS

JUSTICE SIRJOHNCHADWICK RETIRED DEPUTY CHIEF 2013 until 2016when he retired. the DIFCCourts from Justice of Chief Deputy and matters relating to insolvency. He served as commercial andbusiness law were inthe fields of Queen’s Counsel in1980;hismainpractice areas the barin1966(Inner Temple) andbecame a 2015. Asapractitioner, Sir John wascalled to the Cayman Islandsfrom 2008until November of Appeal the Court of presided asPresident of the DIFCCourts, Sir John alsosimultaneously fromin England 1991–1997.While asajudge on the HighCourt Divisionof judge onthe Chancery 1997–2007 andbefore that appointment he wasa for andWales England Appeal from the Court of Priortojoining the DIFC,he served Appeal. on of Instance andCourt First a judge onthe Court of He wasappointed in2008to the DIFCCourts as 45

Sir Anthony passed away on27July 2017. commercial andbusiness law and arbitration. as aQueen’s Counsel, primarily inthe areas of andthen subsequentlyhe practiced asabarrister was called to the bar(Gray’s Inn)in1962where After studying law at Trinity Hall,Cambridge, he Commercialjudge onthe English Court inLondon. 2013. From 1992until 2007,Sir Anthony wasa He served onthe Courts till hisretirement in Justice from 2010until 2013. Chief and asDeputy He wasappointed to the DIFCCourts in2008 SIR ANTHONYCOLMAN LATE DEPUTY CHIEFJUSTICE h salsmn,Dvlpet n rwho the DIFCCourts Establishment,The Development, andGrowth of 46

SERI SITI NORMAYAAKOB RETIRED JUSTICETAN SRI DATO’ retired from the DIFCCourts in2013. Malaya. She the University of Pro-Chancellor of Malaya, andcurrently she istheFederal Court of Malaya, JudgeJudge onthe onthe HighCourt of General’sAttorney inKuala Chambers Lumpur, in Kuala Lumpur, Senior Federal Counsel inthe the Sessions Courtcareer, includingPresident of She hasheld many positions duringher longlegal Malaya. Judge of woman to be appointed asChief bar (Gray’s Inn)in1962.In2005,she wasthe first she studied law inLondonandwascalled to the DIFC Courts in2008.Malaysian by nationality, the female appointed judge of She wasthe first 47

31 f pelo the CookIslandsCourts. of Appeal of the Court Justice (and later President) of Chief Zealand from 1991–1994andhasalsoserved as New Williams served onthe HighCourt of subsequently aQueen’s Counsel in1987.Justice at1984. He became abarrister law in1985and McKenzie Bartleet &Co, Auckland from 1969– Russell McVeagh of as alitigator at the firm and hisLLMfrom Harvard, andthen he practiced Auckland received hisLLBfrom the University of (Singapore) andEssex Court (London).He Bankside (Auckland, New Zealand), Maxwell lawyer chambers at inNew Zealand andkeeps He isaprominent commercial 2013. in retired and He wasappointed to the DIFCCourts in2007 SIR DAVID WILLIAMS RETIRED JUSTICE THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS

SIR DAVID STEEL DEPUTY CHIEFJUSTICE ecigtesauoyrtrmn g f75. reaching the statutory retirement age of Justice inMay 2018upon retired Chief asDeputy chambers at 2/4Essex Court (1995–1998).He of the Inner Temple (1995)andheada Bencher of andQueen’sboth abarrister Counsel, aswell as degree from Oxford University andhe hasbeen an admiralty judge, andhe holds amaster’sas Sir David reputation alsohasaninternational Commercial Judges Forum from 2009until 2011. the European of and he wasalsochairman Commercial andAdmiralty Courts inLondon, From 1998until 2011he served asajudge inthe practiced commercial law from 1968until 1998. Justice. He wascalled to the barin 1966andthen and since 2016he hasserved Chief asthe Deputy He wasappointed to the DIFCCourts in2011

the DubaiJudicial Institution. Shamlan alsoholdsanadvanced diplomafrom he subsequently became aSCT judge. Justice in2010,whereCourts wasasajudicialofficer introductionin the UK.Hisfirst to the DIFC (with merit) fromdegree Westminster University the UAE University, andhe alsoholdsamaster’s He isalaw (with distinction) of graduate Appeal. Instance andthe Court of First the Court of of and waspromoted in2017to be afullmember Instance in2014to hear interlocutory applications First appointed to the Court of He wasfirst SHAMLAN ALSAWALEHI HIS EXCELLENCY JUSTICE h salsmn,Dvlpet n rwho the DIFCCourts Establishment,The Development, andGrowth of 50

JUSTICE TUNZAKIAZMI appointment onto the federal bench. in both the public andprivate sectors, until his to practice law inMalaysia,returned working in London1969(Lincoln’s Inn)andthen JusticeAppeal. ZakiAzmiwascalled to the bar the Malaysian Court of and then President of this appointment he was aFederal Court Judge Malaysia, serving from 2008 until 2011.Prior to Justice of Chief He isaformer Appeal. Court of Instance andthe First serves onboth the Court of He wasappointed to the DIFCcourts in2013and 51

33 commercial law. business and and wasalong-time practitioner of New South Wales in1971 was called to the barof Prior to hisjudicialexperience, Appeal. he Court of Australia’s until 2011,Justice Giles wasamember of court’s commercial divisionin1994. From 1998 that Judge of 1988, then risingto become Chief New South Wales beginning in Supreme Court of to histime with the DIFC,he wasajudge onthe fromholds degrees Sydney andOxford, andprior in2014.AustralianAppeal) by nationality, he Instance andCourt of First both the Court of He wasappointed to the DIFCCourts (on JUSTICE ROGER GILES THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS 52

JUSTICE SIRRICHARDFIELD commodities. trade, international banking, and the fields of arbitrator who hashadsignificant experience in commercial law andanexperienced lawyer of a practitioner, Sir Richard wasadistinguished the Commercial Court in2014.As Charge of the Western Circuit andbecame the Judge in 2014. Between 2008and2012,he served on (Commercial Court Division)from 2002until he wasajudge onthe HighCourt inEngland Counsel in1987.Prior to joiningthe DIFC, called to the barin1977andbecame aQueen’s received hisLLM.British by nationality, he was Economicswhere he and the LondonSchool of hisLLB Bristol where he earned University of the of in2015.He isagraduate Appeal) of Instance andthe Court First both the Court of He wasappointed to the DIFCCourts (on 53

2012 to 2013. andwasasJudgeEngland inCharge there from 2003 he wasnamed to the Commercial Court in Division), which in2001,andthen in began judge, onthe HighCourt (Queen’s first Bench as anarbitration lawyer. Andhe hasserved asa inextensivein 1976.He alsohasengaged work Jeremy then wascalled to the bar(Lincoln’s Inn) litigation for three years at Coward Chance. Sir thereafter practiced general andcommercial was admitted asasolicitor in1973,and Soames, 1973 he articled with Speechly, Mumford and where he studied from 1967–1970.From 1971– Oxfordin Jurisprudence from the University of ClassDegree in2016.He holdsaFirst Appeal) Instance andCourt of First both the Court of He wasappointed to the DIFCCourts (on JUSTICE SIRJEREMYCOOKE h salsmn,Dvlpet n rwho the DIFCCourts Establishment,The Development, andGrowth of 54

entering the judiciary. private sector anadvocate as andsolicitor before business, shipping, andcommercial law inthe Singapore, andshe practised the University of from class honours) (with first is a1974graduate thereafter she wasnamed asajudge in1995.She in1992asajudicialcommissioner,judiciary and Justice entered Prakash first the Singaporean Singapore, to which she wasappointed in2016. onthe Supreme Court of Appeal sits asaJudge of in2017.She currently also Appeal) and Court of Instance First DIFC Courts (onboth the Courtof Singapore, she wasappointed to the A national of JUSTICE JUDITHPRAKASH 55

35 Jurisprudence andthe Challenges inthe Early Years DIFC Judgments andthe Debate Over Enforceability: CHAPTER TWO participating—in this novel experiment. whostakeholders participated—or have considered majorsignificance to the this issue hasbeen of enforceable? Aswe willsee, the debate over are judgments from the DIFCCourts actually interested observers were asking:to what extent that early oninvolved aquestion that many in focus—from adoctrinal examination to one Following this discussion,there isthen ashift Chapter Three.) material andadetailed analysisare saved for their recognition andenforcement. That and the DIFCCourts’ decisions onarbitral awards in this chapter, for the most part, stays clear of the case law note to emphasise: the discussionof since the DIFC’s Appeal founding. (Animportant of Instance andCourt First rulings by the Court of those major survey of section provides abrief lawyers, the below claimants andcourt personnel, along with media searches, interviews with the available case law,Based onmy review of

37 but offered nosuch remedy. 2005that governed this relationship— Law of even though there existed the DIFCEmployment compensation for the termination, three months of Tribunal applied UAE LabourLaw to provide compensation for this dismissalinthe SCT. The by the Rasmalacompany. claimants sought The arguing that they had been unfairly dismissed claimants employment dispute with agroup of Limited For example, consider the 2009Rasmala Investments the judges. overlapped inthe cases that came before significant decisions, these issues often era of judgments. Infact, inthisfirst enforcement of regulations, banking, employment law and laws, jurisdiction, relating of to conflict heardjudiciary initially dealt with questions the cases the its new environment. Several of within contemplating how best to situate itself Courts illustrates aninstitution that was leading judgments by the DIFC set of first The CASES THROUGH 2011 DECISIONS: THEEARLY SUMMARISING KEY THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS case. 1 That matter centred onan

prioritise outstanding debt claims. how best tolaw law orEnglish to determine in acase known asForsyth Michael Hwangpresiding, wasasked by liquidators is ntne ihte euyCifJustice Instance,First Chief with then Deputy Yaakob.Norma Two years prior, the Court of Instance andheard by Justice Tan Sri Siti First case wasappealed to the Court of The prioritising. Insolvency Law, which didnot provide for such refused andinstead applied the governing DIFC was overturned. Law inthis case. Assuch, the SCT judgment unwilling to impute the UAE’s (non-DIFC) Labour And Justice Tan Sri Siti NormaYaakob was the case. regulationssupplementary at the time of but the DIFCAuthority hadnot enacted such could be issued to cover unfairdismissalcases, Employment Law alsoreferenced regulations that that ispresent’ the DIFCLaw ...andresort to relying onaright claimants here similarly couldnot ‘contract out of Tan Yaakob Sri Siti Norma stated that the 3 Basingher rulingonForsyth 4 elsewhere. InRasmala 5 , to use either UAE 2 Justice Hwang , the DIFC , Justice

whereby it couldrequest that third-party actually invested,’ the amount ITF’s shares for 125per cent of of afinancingdeal ‘repurchase all of guarantors required that the case be able to proceed. 2008,which he stated Arbitration Law No. 1of Rasmala both ForsythFollowing the rationale of declined DWS’s motion. ITF’s case. Justice Sir David Steel, however, Arbitration (LCIA), andthereby moved to dismiss International the LondonCourt of in front of between the parties be handled by arbitration with ITFmandatedagreement that any dispute contract hadnotbeen met. DWS argued that its Williams, known asAlFattan, of First Instance case written by First Justice Davidof (As Chapter Three discusses, asubsequent Court tyi there were jurisdictionto doso.’ a stay if hisopinion,‘Iwould have granted at the close of followed the law ashe wasobliged to do, noting Justice Steel, hisoptions were limited, andsohe (DWS). involving Denton Wilde the law firm, Sapte a similarsensitivity. Take the interesting case era highlightOther decisions first duringthis h xsec reecs fthe option’ the existence orexercise of failed to advise ITFinregardand ‘negligently to that the lawyers didnot represent them adequately Technology contending Fund(ITF),sued the firm Three, but briefly, here, the claimant, Injazat olwti eiini aoro amore arbitration follow this decision infavour of DIFC Judgments andthe Debate Over Enforceability: Jurisprudence andthe Challenges inthe Early Years 6 , Justice Steel strictly applied the DIFC’s We to this case inChapter willreturn 8 i tetrso the original of the terms if 9

12 chose not to and 7 it had, 11

For For

ena h Scn r’o DIFCCourts’jurisprudence. seen at the‘SecondEra’ of examines how thecaselaw evolved inwhat mightbe mandate next andjurisdictional domain.The section DIFC Courts, for themostpart,adhered strictlytotheir In sum,through 2011itwould that befair tosuggest the and Deyaar Development PJSC. Development and Deyaar in decision Appeal approach in2011with aCourt of ‘jurisdictional creep’, there wasasubtle change in jurisdiction. However, inwhat mightbe viewed as DIFClaws andquestions relatinginterpreting to DIFC Courts employing avery literal method of Forsyth, Rasmala andDWS intent when itcreated this institution. the government’sthe DIFCCourts andgoagainst Court concluded, would the status denigrate of include the DIFCCourts. To holdotherwise, the that reference to such courts couldnecessarily held Appeal Court of Dubai.’The the ‘courts of 14.1) stating that disputes would be settled within between the parties, there wasaclause (section without any encumbrances. Inthe agreement to procureor middle person title to property loanthat allows a‘straw’ Murabaha—or atype of stated inthe agreement.’) any, what seat, if isto arbitrate, irrespective of anagreement could ‘stay proceedings infavour of Law in2013where it wasdecided that the Courts Al Fattan by anamendment to the Arbitration two caseswasfinallysettled inthe direction of friendly approach. difference between The the National Bonds Corporation PJSC vTaaleem PJSC each illustrate the 13 14 This case involved This a 15

DIFC branch ordivision.’ conducted by the corporation its the activities of claim ordispute isconnected with orarises out of only “involves” aCentre’s Establishment when that from the DIFC[,]and[that] aclaim ordispute its branch isauthorised to conduct business inand Establishment exists ‘only to the extent to which Justice Colman,aCentre And for Chief Deputy Court, aparty had to be a‘Centre Establishment.’ aDIFC said that to fallunder the jurisdiction of Justice Colmanpointed to the statute, which have jurisdiction to hear this case. Chief Deputy the DIFC,hisCourt didnot occurred outside of between Corinth andthe buyer andBarclays 2004,he stated that because the actions 12 of DubaiLaw No. In referencing Article 5(A)of jurisdiction. dismissed Corinth’s claimfor lackof Sir Anthony Colmanpresiding. Justice Colman Justice Instance, First with the late Chief Deputy case waspresentedThe to the DIFCCourt of SAvBarclaysPipeworks Bank PLC. issued asignificant rulinginacase called Corinth Appeal On 12January 2012,the DIFCCourt of 2012–2017 THE SECOND ERA: and engaged infraudandfalse representation.and engaged sued alleging that bothparties conspired it against money transferred from Barclays to it, Corinth receiving payment from the buyer orhaving the Barclays Bankto holdits assets. After not Corinth some USD 24million,andit hadused in Jebel Emirati Ali,Dubai.The company owed had solditsproducts to anEmirati company located involved aGreek steel company, Corinth, which THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS 16 19 17 The matter The

18 fcivilandcommercial matters.’ of in to the DIFCCourts’ jurisdiction inthe context have any ostensible connection to the DIFC,to opt whether theyanywhere inthe world, regardless of As one report noted, the ‘law allow[ed] parties 2011,alsoenhanced the Courts’ jurisdiction. No. 16of animportant amendment, DubaiLaw passage of taking amore expansive role. Inaddition, the Corinth non conveniens forum the doctrine of to the restraints of such claimto jurisdiction would be subject wherever located.’ the Respondent,over any other branch of the Respondent’s Dubaibranch, asit would have Courts dohave jurisdiction over the conduct of entity.an independent ...Accordingly, the DIFC aforeign bankcannot be regarded as DIFC branch of writing for the Court, stated ‘that anunincorporated neti h atr he Justiceentertain the matter. Hwang, Chief had abranch within the DIFC,the Courts could dispute occurred inJebel Ali,because Barclays found that Appeal even though the Court of The On appeal, however, this decision wasreversed. each year, respectively, andthe latter hadnine and heard thirty-nine andforty-sevenformer cases 108cases. (The heard atotal of Appeal Court of Instance and First for example, the Court of matters ontheir dockets. During2015and2016, saw anoticeableAppeal rise inthe number of Instance andthe Court of First the Court of time for this law to have but aneffect, eventually set the stage for the DIFCCourts to begin .) 20 (Note, there wasacaveat that 21 It took abit of

of relying on external experts relying for onexternal insight. of needing to adhere procedure tothe classicEnglish Emirati, it hadthe competency to adjudicate without the three judges onthe appellate bench wasan of in matters involving UAE law alone, solongasone in multiple jurisdictions, the Court ruled that even expertise renownedinternationally andhadyears of the DIFCwerefurther. Since the foreign judges of inFidel vFelecia Appeal Court of The involving Islamicbankingandrelated services.’ also be used asaforum for litigation inapplications ‘case serve[d] to highlight that the DIFCCourts may existing Murabahaagreement. called the ‘Sharia Standards’ provided within the whatruled that it hadthe authority to interpret it different issue. Inthe subsequent matter, the Court National Bonds Corporations reheard Appeal the above-mentioned, the Court of miss this opportunity to leave their mark. For instance, place within the DIFCCourts, and the judges didnot Given this increase inthe caseload, aconfidence took thirteen cases onits docket, respectively.) Extending this argument beyond the UAE’s border, as the domestic UAE courts to hear the matter. waseveryjudiciary bit asequivalent andcapable Court opined that The the DIFC’sSharjah). to another jurisdiction (namely, to the Emirate of rejected aparty’s motion to have this case removed importantly Appeal Chartered Bank, the Court of strength. Group InInvestment Private Ltd vStandard also showed that ajudiciary was willingto assert its Two other significant cases duringthis second era DIFC Judgments andthe Debate Over Enforceability: Jurisprudence andthe Challenges inthe Early Years case, but this time ona 23 For time the the first ventured 25

26 24

Courts.’ available for referral to andenforcement by the Dubai the [Dubai]JAL [Judicial Authority Law], thusof Article 7(2) be a“judgment” withinthe meaning of be a“recognised foreign judgment” but would simply would ruling‘no longer maketheEnglish affirmation as with DNB’s follow-up argument that such an with this position, aswell agreed Appeal Court of legitimate andenforceable within the DIFC.The court judgment it hadreceived shouldbe seen as activity within the Emirate. promote commercial andfacilitate international heart—namely that the Courts existed inorder to by the DIFCCourts that it wastaking its raison d’etre to the domestic bench marked asignificantproclamation judgment? recognise andthereafter seek to enforce aforeign straightforward question: to what extent couldit wasconfronted Appeal with a case, the Court of has come to be known asthe pivotal DNBBank Chapter Three. Regarding the former,of inwhat foreign arbitral awards, which willbe the focus judgments, which isaddressed inthis chapter, and foreign is adifference between the enforcement of would be treated. It isimportant to note that there revolvedterm around how foreign judgments But the issue most salient duringthe 2015–2016 forum nonconveniens hearing the case onforum then the DIFC’s Courts hadnoreason to decline not any more competent inadjudicating onanissue, competing court—here, acourtinSaudiArabia—was the Court similarly held in2016,that solongasa 29 This willingness toserve This asa‘conduit’ 28 DNBhadargued that anEnglish grounds.

30 27

to to

43 Chief Justice the Honorable James Allsop AO of the Federal Court of Australia and Chief Justice Michael Hwang SC of the DIFC Courts sign a Memorandum of Guidance in 2014. enforced the Court of First Instance’s First ruling. enforced the Court of andadhered to these principles andaffirmed to those at the DIFCCourts, the Australian court not just the prevailing party but also delight of for recognition andenforcement. To the great binding, set out clear procedures the agreement between it andthe DIFCCourts. Although non- Guidance signed was based onaMemorandum of decision to approachThe the Australian court judgment inthe New South Wales Supreme Court. were located, the claimant sought to enforce the where the defendant’s assets system. Because of technologyhad damaged the former’s information Here, the claimant hadargued that the defendant liati h aeo Graciela Ltd vGiacobbe . claimant inthe case of a Instance ruled infavour First of Court of a courtroom inAustralia. In2014,the DIFC’s miles away in what hadhappened thousands of Court inDNBBank felt empowered because of It would not be unreasonable to assert that the THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS 32 31

case were forward amajorstep inthis direction. events that occurred regarding the Graciela Ltd rulings would be seen asvalid—abroad. The legitimacy,global it wasvital that the Courts’ community. At the same time, inorder to have commercial the international andpractises of norms open, fair, transparent attuned andglobally to the assurance that Dubaiandthe were DIFCCourts well asforeign lawyers andforeign parties—the to provide abroad—as well their counterparts as Courts. On the one hand,the judges were keen the DIFC as the two-way of internationalisation developmentsThese highlight what we might see

FROM 2017 JUDGMENTS the claimant argued that the defendant’s failure LLCInvestments vMohammad Akbar Mohammad Zia InDIFCencountered duringthe 2017 term. There were other important cases that the Courts defence andcounterclaim lackany credibility.’ IGPL the judgment that to the knowledge of the claimleads to the clearest inference inmy to avoid determination The the resolution of law. misconceived propositions of wide range of a efforts haveThose of included the pursuit money to disrupt anddelay the proceedings. time and amount of expended anenormous I have that IGPL [the defendant] had formed these proceedings supports the clear view that lengthy‘The reference to the chronology of immediate judgment.’ [Standard Chartered]acquiesce and‘granted an Instance refused First toto pay. Court of The its inability its debt because of restructure orset-off had taken aloanfrom Standard Chartered, could defendant, Investment Group Private Limited, which time,docket. This the issue involved whether the Instance’s First case reappeared onthe Court of on other issues. For example, the Standard Chartered to the Courts for subsequent hearingsparties return judgments rendered—only then to have the same the cases hadstarted some years prior, with initial these matters, the DIFCCourtsin2017.Inseveral of important decisions were handed-down by A series of Sir David Steel stated: Justice this rulingwasits tone. Chief AsDeputy of DIFC Judgments andthe Debate Over Enforceability: Jurisprudence andthe Challenges inthe Early Years 33 The noteworthy The aspect

34 contract, per the claimant’s request. the andterminated Instance agreed First of necessarily voided the entire Court deal. The properties seventy-two to pay onthe sale of Accordingly, he dismissed the complaint. claimant was permitted to terminate the lease. to terminate claimant waspermitted Perin alease agreement. the Court’s order, the for failingto live-up to the contractual obligations adefendant Instance ruled against First Court of Entertainment LLC vMAG Financial Services hnteecag factual money.than the exchange of extend to goodwillandpositive reputation rather to be defined, the Court held that the meaning could involving ‘consideration’ how term ought the legal contracts-related matter aswell. Inanintriguing case Instance wasactive First inanother Court of The as hisability to raise funds.’ [of] hisname andcontacts to the company, well as shares, andthat the consideration wasthe ‘providing position entitled himto the aforementioned 10million this leadership then argued that of hisacceptance defendant The hired the defendant asits chairman. Curiously, at alater moment, the claimant’s company to the defendant inconsideration for USD 10million. claimant argued that he transferred 10millionshares number of customers andinvestors customers for the Claimant.’ number of his name and efforts would be used to increase the his involvement inthe Claimant company; [and] that actual consideration for the shares wasintended to be bywas ‘persuaded the Defendant’s argument that the contrary, Justice Ali,who waspresiding, stated that he any convincing evidence from the claimant to the of 38 Bcueo the lack Because of 37 Inthis case, the 35 InTheron , the

47 because there wasadispute asto the amount claim.’ was achieved priorto the events givingrise to the this [licensing] status be triggeredcould only ‘if rejected the idea that its jurisdictional authority matter. Inhisdecision, Justice Sir Richard Field it wasargued, shouldhave nojurisdiction over the licensed after the claimarose andthus the Court, establishment within the DIFC;it onlybecame the dispute, the claimant wasnot alicensed defendant hereit. The argued that, at the time of allow adamages caseagainst aclaimant to pursue that the DIFCCourts were the improper forum to dismissed the argument made by the defendant And inTavira Securities Ltd enforce aforeign judgment within the Emirate. would not be violated by having the DIFC Courts forcefully stated that the UAE’s Constitution Instance First Essar Global Fund Ltd, the Court of aswell. InBarclays2017 term Bank PLC etal. v and enforcement emerged intwo cases duringthe jurisdictionPerhaps not surprisingly, the issues of terminated. payments to anemployee who hadbeen that penalised anemployer for delaying severance provision within the DIFCemployment statute Court had to decide whether to enforce a Hakim Adil , the PartnersDevelopment Ltd vAsif be animportant year aswell. InFrontline level, Appeal 2017proved to At the Court of was issued. when the license on this matter regardless of finding that the Court couldindeed adjudicate THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS 41 Instead, he took abroader approach, 42 43

The employer, The here, argued that , the First Instance Court, the First

take the lead, according to the judgment. officials—rather than the Court—would need to there wasto be achange to this policy, legislative the statute.meaning doctrine ininterpreting If strictly adhering to the plainthe Court disagreed, owed, the penalty shouldbe suspended. However, from 2008 until2014,he served asaninvestment entrepreneur who works However, inEngland. ruling. Haightoday isaBritish lawyer and background before discussing the appellate court’s David Haigh-case, as itisknown, requires some The duringthe 2017term. Appeal Court of entire occurred at DIFC Courts’ history the the the most well-known cases of And, one of should serve asthe default jurisdiction. not the DIFC— should be held, California—and dictating where precise the arbitration terms of ruled that, inthe absence Appeal the Court of Instance’s First decision, upholding the Court of possibly serving asthe seat for the arbitration. In onlyreference USA,The made wasto California, noted that the silent language was on this point. in examining between the agreement the parties, as the venue for arbitration. Court, however, The Peter Gray,of who sought to have the DIFCserve matter, the employment hadterminated the firm case involving Inthis the GibsonDunn law firm. Court, similarly,The exercised restraint ina and Rasmala. resembled the approach used inForsyth from how recent cases hadbeen decided and analysing thiscase, the Court’s decision broke

45 44 In In

Cellino. purchased by the Italian businessman, Massimo Leeds in2013and2014untilthe clubwas of Leeds United, in2012.Haighserved onthe board whereby GFHacquired football anEnglish club, at this company involved Haigh brokering adeal hismost noted accomplishments while One of banker andfinancier inDubaifor GFHCapital. case wasultimately dismissed.) grounds, onhumantrafficking England but his this group in action against a private claimof fromofficials GFH.Haighsubsequently brought Gibson Dunn,Peter Gray, who hadworked with to Dubaiby the above-mentioned lawyer from GFH. (According to Haigh,he waslured back with seeking anew opportunity later inhopes of left for but to Dubaiamonth England, he returned 2014,Haighresigned from GFHand of In April The accusationThe stemmed from tweets he was verbally abusing from officials GFH. accused of Haigh wascharged with ‘cyber-slander’ and released in November 2015.However inNovember, credit given for time served andwasset to be He wassentenced to two years inprisonbut was financialmisappropriation. convictedwas formally of imprisoned awaiting charges. InAugust 2015,he controlled. For fourteen months, Haighwas these deals into that accounts Haigh expenses of invoices andhadGFHpaymanufactured out the but they centred onclaimsthat he fraudulently crimes, a range of million. He wasaccused of USD 6.45 and charged with embezzlement of 2014, Haighwasarrested by the Dubaipolice DIFC Judgments andthe Debate Over Enforceability: Jurisprudence andthe Challenges inthe Early Years 47

48 On18May

charges him.’ against the to prevented himfrom filingafulldefence whichbefall[en] the Appellant he contends have financial andphysical [that difficulties had]allegedly appeared to acknowledge Appeal ‘the the Court of judgment isrendered by atrial judge.’ adduce oral evidence inhisdefence before final tofurther andfinalopportunity to the Appellant a least at are special circumstances which warrant below, the Court went onto say ‘that these factors July 2018. remanded the case for trial, which isto begin in Judgment’ an]Immediate [of doubt in[the] granting of in November 2017,that it hada‘certain element which Appeal, decided, the casetothe Court of against Haighwasoverwhelming.against that because the evidence atrial wasnot necessary GFH,finding immediate judgment infavour of Instance issued an First 2016, the DIFCCourt of Haigh’s activity.was lost because of InNovember the money it argued Courts for indemnification of continued to press its civilclaiminthe DIFC Notwithstanding these criminalcharges, GFH twenty-two months behind bars. to Britain after spending atotal of returned the slander charge andthereafter acquitted of commit this crime. InMarch 2016,Haighwas in prisonthen andhadnoaccess orability to March 2015,which Haighdenied, saying he was alleged to have made from hisTwitter account in 51 as the as lower court haddone. Moreover, 52 Insetting aside the ruling 49 50 Haightook 53 The Court The

49 The belowThe section addresses this debate. DIFC Courts were really, infact, enforceable. which dealt with whether judgments from the early years saw another serious challenge emerge, However, before moving to that the discussion, that hasemerged regarding the DIFCCourts. chapter discusses the most recent development issues and to dosoboldly.tackle difficult next The decade. Clearly, the Courts have not been shy to the DIFCCourts’ jurisprudence over the last of aboveThe discussionhighlights the evolution *** THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS

JUDGMENTS OF DIFCCOURTS’ THE ENFORCEABILITY the Emirate. that currently haveforeign firms apresence within this chapter, lists the A,at the end of Appendix my own. compile anextensive directory of multiple sources to triangulate, verify andthen in order togenerate apreliminary list, Iused writing, the linkto that site hasbeen down, so this that exist inthe Emirate. the firms Asof of Dubaimaintainsrecords the Government of of over Department Affairs Legal 2million.The slightly inDubai,which hasapopulation of firms law international There are asignificant number of BACKGROUND DIFC Judgments andthe Debate Over Enforceability: Jurisprudence andthe Challenges inthe Early Years was no. the DIFCCourts’ operation in the early years of these lawyers,this wish.For the answer many of question then iswhether the DIFCCourts satisfy they are acquainted—is key import. The of access to areliable process—one legal with which commercial deals. It isinsuch situations that to make money onhigh-end, transactional been has these foreign lawyers entering Dubai objective of be anEmirati national. to appear asalawyer incourt, the individualmust domestic law, with the onlystipulation being that the UAE allows foreign lawyers to practice aso their home jurisdiction. laws of matters related law andonthe to international to provide are permitted foreign advice on firms and Continental Europe. lawyers The from these Lebanon, Saudi Arabia,East andSouth Asia, those that come from other places such as Britain andthe United States, althoughthere are are from these foreign firms vastThe majorityof 55 From the outset, the 54 Additionally,

51 Mark Beer, Registrar General of DIFC Courts, and Dr Ahmad Saeed bin Hazeem, former Director General of the Dubai Courts, discuss cooperation during a visit to the DIFC Courts in 2009. party must applyfor an‘execution letter’ enforcement are straightforward. prevailing The is deemed ‘finalandexecutory.’ court. Furthermore, this new DubaiCourt ruling the localDubai thereafter becomes ajudgment of specifically how the order shouldbe enforced, it providedThen, that the DIFCjudge hasdescribed statute, the judgment istranslated into Arabic. the 2011 Dubai court. Under Section 7(2)of the DIFCCourts, which then issent to the local enacted into law by the Emirate. local Dubaicourts. was In2011,this agreement enforcement’ between the DIFCCourtsandthe Since 2009,there hasbeen a‘protocol of Dubai courts. anenforcementto pursue action within the local the DIFC),then the prevailing party would need are located within the Emirate (but outside again, the losingparty’s assets the non-DIFC side. If DIFC Courts andajudgment isrendered against both parties consent to acase being brought to the not—although it isstill based inDubai.Assume party isfrom within the DIFCbut the other is layers scenario where to it. Consider the first one hadthree the DIFCcomplex. concern This of Courts were potentially unenforceable outside lawyers’ views that judgments from the DIFC Initially, the above sentiment stemmed from the varying results.varying which might lead toits DIFCCourt counterpart, can be competition between the localbench and simple, there wasthe notion amongsome that there While the above procedure to be clear and appears Enforcement within Dubai THE VIEWS OFTHESCEPTICS DIFC Judgments andthe Debate Over Enforceability: Jurisprudence andthe Challenges inthe Early Years

58 56

The steps for steps The 57

from

jurisdiction andability to review,, matters denovo courts in the other Emirates to cede their local regarding the unwillingness of concerns and rife with potential delay. There were also saw this Article 221practice astime consuming expedite execution orders inthe other Emirates who andothers wanted toDIFC Courts officials jurisdiction’s appellate body. procedural matters) wassubject to that a decision by the localcourt (asit related to the DIFCCourts’ case.) Furthermore, merits of anopiniononthe substantivesupposed to offer review the case for procedural defects. (It wasnot the paperwork, it then hadthe prerogative to the other Emirate receivedOnce the localcourtof state the rationale for the decision rendered.then that papers outlined the case and to file aset of Specifically, this meant that the DIFCjudge had the other Emirate. judgment to the local court of hadto refer its the DIFCCourt formally First, needed to be followed. the UAE’s federal civilcode, whichArticle 221of multi-step procedure, asprovided for within this judicialorder? Intheory, there wasa the Abu Dhabilocalcourt automatically endorse defendant who held assets inAbu Dhabi,would to enforce a aDIFCCourt judgment against Abu Dhabi. So, for example, where aparty sought other Emirates within the UAE—particularly related to enforcing DIFCCourt judgments in by lawyersA second concern international Inside the UAE Enforcement Outside Dubai but 60

55 Chief Justice Michael Hwang SC, DIFC Courts, and Chief Justice Sundaresh Menon, Supreme Court of Singapore, sign a Memorandum of Guidance in 2015. in this regard ...’ the procedure andrulesadopted by such entities jurisdiction outside [the] DIFCinaccordance with be executed by the competent entity having law mandated that aDIFCCourtsorder ‘shall sought, inpart, to remedy these issues. The statute the 2011Dubaireform passage of The the execution process. were needed to Article 221inorder to accelerate that legislative changes appeal, there wasabelief Finally, given that parties retained the right to cases. to encroach uponthe substantive merits of reviewcourts invoked their procedural powers of court. Additionally, there wasasense that the local from aninstitution they perceived asanexternal the UAE altogether. point isdiscussed next. This when it came to enforceabilityconcerns outside of What isknown isthat these lawyers alsohad passed), to-date, it hasbeen hard to know for sure. DIFC judgment (at least since the 2011statute was Dubaibeing askedto enforce a court outside of the UAE. anEmirati Yet, given the actual rarity of Dubaibut within aDIFCjudgment outside of of lawyersany concern hadregarding enforcement It would seem that would these steps have quelled the legislation. further solidifying the intent of asameans oftheir Emirati court counterparts with understanding signed memoranda of formally out DIFCorders. Moreover, DIFCCourts officials within the other Emirates were obliged to carry THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS 62 Inother words, the localcourts 61

Seeking Enforcement beyond the UAE (‘GCC’) Convention. Cooperation Council as well asto the 1995Gulf Riyadh for ArabAgreement Judicial Cooperation, Regionally, the UAE isaparty to the 1983 judicial orders. commercially based to the enforcement of had signed with other countries, asthey related ought to enjoy the benefits from treaties the UAE the state, therefore, meant that theycourts of the country’s judicialsystem. That they were Dubai, but rather within parallel courts integrated wasnot aforeignDIFC judiciary entity within bar working within Dubai.Recall, inprinciple the utmost importance for the foreign question wasof other countries? Given clientele, their global this rendered by the DIFCCourts be enforced in question: Wouldhad apersistent judgments During the initial years, lawyers international administrative cases ...’ any member state incivil,commercial and of execute the finaljudgments issued by the courts its pertinent provision provides that they ‘shall GCCConventionThe involves sixparties, and uhmteswl ae‘h oc fres judicata such matters willhave ‘the force of one signatory’s jurisdiction to another’s, andthat countries shall‘implement’ the provision deems that, when needed, each of including ...commercial’ any other contracting party incivilcases courts of party shallrecognise the judgments made by the Article 25(b),which states that ‘each contracting importance there is has twenty signatories, andof DIFC Judgments andthe Debate Over Enforceability: Jurisprudence andthe Challenges inthe Early Years 63 The Riyadh The Agreement 67 Inaddition, the UAE 64 cases. Moreover, this 65 judicialorders from

.’

66 66

use arbitration. commercial dispute resolution: on matters of advice to their clients offered astrategic piece of and domestically), duringthe early years they DIFCCourt judgments (abroad enforcement of lawyersinternational saw ashindering Therefore, given these various hurdles that has ‘procedural outs’ well. the above Specifically, conventions each of Emirates within the UAE, materialises here as to enforce trying judgments inother impasse, of their clients. Yet the aforementioned of behalf important instruments that they canemploy on as value andserve theoretically shouldbe of Several lawyers international stated these agreements practicing international lawyers.practicing international adjudicators—ajobs as troublesome possibility for decide to take anaggressive approach to their they more than just peripheral ways, especially if such, judges retain the ability to review matters in what isaprocedural andsubstantive analysis. area noted that the lines are often blurred between merits evaluation, but the lawyers who work inthis asubstantivecourts are not supposed to perform the case at hand.It istrue that these reviewing courts inthe non-originating jurisdiction to review India, ChinaandFrance. enforcement, includingthose with Tunisia, bilateral treaties onjudicial has aseries of 69 within them that allow 68 71

70 As As

59 Mark Beer, Registrar General of DIFC Courts, welcoming HRH Prince Andrew, Duke of York, KG, GCVO, CD, ADC to the DIFC Courts in 2010. to discussthe reason for their presence. to proceed official to the relevant stall by astaff before being calledsitting andwaiting their turn sides. Inthe middle isanarea for people who are administrative desks onboth the left andright Upon entering, foyer one sees amainentry with with whom aswell. Imet spokeEnglish court staff the placards translations with English and allof use, but there are alsomany the language of chaotic norhaphazardly run.It istrue, Arabicis lawyers,the international the courthouse isneither innovation. to the views presented Contrary by infrastructural andtechnological marvel of isa figures there.influential complex The itself at the maincourthouse inDubaiandmet with In my multiple trips to the Emirate, Ispent time workingofficials within the localDubaicourts. perhaps most unlikely group, first, The were UAE who challenged detailed above. the depiction within the supporters DIFC Courts hadaset of From the time that they were established, the THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS Local Dubai Courts Officials THE VIEWS OFSUPPORTERS 72

judgments electronically. notifications, interim orders, andeven final receive documents viaits website andprovide are alsodeliberations online, where the courtcan an assigned court-expert deliberate. But there required documents uponwhich the judge and andsubmitand parties canappear inperson using the traditional civil-law approach: lawyers required. matters Furthermore, this court hears this amount, athree-judge panel issurpassing AED 100,000(USD 27,000)orless; for claims cases inwhich bringforth plaintiffs claimsof attachments cases...’ [matters], andcommercial agencies [and] arbitration, bankruptcy, airandmaritime banking, companies, intellectual property, stocks, issues ...[including]commercial contracts, related cases. business- tasked with the expeditious handlingof there hasbeen aspecialised ‘commercial court’ Particularlyfloors. relevant isthat since 2008 Additional courts are located onhigher-level andother administrativeon the same floor offices. Past this maincentral area, there are courtrooms receiving hearing. afirst category took more than one month before case that it hears, not one that for each type of during my trip to Dubaiin2014.It shows first Table 1,which given draws oninformation tome nice complement to what they are doing. Consider isbecause theyDIFC judiciary perceive it asa reasonThe that value localcourt officials the 73 Its jurisdictioncovers ‘trade 74 Single judges willhearSingle 75

DIFC Judgments andthe Debate Over Enforceability: Jurisprudence andthe Challenges inthe Early Years First HearingintheCommercial Court TYPE OFCASE Contracts Commercial Banking Commercial Papers Companies Intellectual Property Arbitration Attorney of Commercial Power Air andMaritime Bankruptcy Attachments Average Waiting Time forthe Table1

i ubro days) (in number of AVERAGE 26 30 27 29 29 26 33 28 21 30

63 ae ot aymlin fdollars,’ he stated. cases worth many millionsof handle complicated issues. court can hear ‘The and isunsophisticated orunfamiliarwith how to thatto suggest the latter petty matters onlyhears commercial court. He added that it isincorrect Arab clients they recommend usingthe Dubai the forum toresolve disputes, whereas with their foreign clients to opt into the DIFCCourts as how he andhiscolleagues routinely advise their held similarsentiments. individualconveyed This lawyer who works also at prestigious regional firm commercial activity. AnArabcommercial law the image that Dubaiisaworld-class hub for resolution, onefficient assists inprojecting itself matters like those listed inTable 1andprides forum, such asthe DIFCCourts, which hears certainly believeofficials that having another Although they cannot show causality, localcourt cases resolved without being appealed. cent of rendered hearing, after the first with 95.2per (111.4 days) onaverage for ajudgment to be but that it takes just alittle over three months entered the commercial court since its creation, 2016 statistics alsoindicate that 17,639cases have commercial cases—to 44.3days. Furthermore, the average wait time hadincreased onlyslightly for 2016,the the end of data showing that asof providedDubai officials me with supplemental During my most recent research collection, THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS

to dobusiness. foreigners willsee the UAE asawelcoming place presence inDubaiincreases the likelihood that court does for its clientele, the DIFCCourts’ the same way that the localcommercial in much of transparency andcertainty for overseas investors Courts seek to facilitate predictability, legal investment from abroad. Given that the DIFC there hasto be continued, deep, andsustained In part, for that to happen, their view isthat interested inseeing the Emirate’s economy thrive. Ultimately, are localDubaiofficials keenly

disputes. calls for provisions onhow best to resolve future into adeal with another party andthe contract arbitration arises when acompany enters of To begin, the possibility (andpotential pitfalls) dealing with conflict. only means of that arbitration isnot necessarily the is abelief see that view asextreme, for several reasons there disputes wasquestioned. arbitration asthe mainvehicle for resolving the insistence by lawyers law onemploying firm much frustration. In particular,is the cause of used by lawyers law with whom firm they engage the tactics andstrategies the protracted nature of According to the in-house counsel interviewed, can occurisonhow best to settle disputes. representation. that One maindisagreement they hire the outside law for firms legal of see adisconnect between their needs andthose lawyers,in-house counsel. These however, often professionalsthe legal onthe front lines are For businesses andmultinational companies, thing isascam.’ even went sofarasto claim‘this whole arbitration In-house Counsel lawyers will turn to their staple of law firms for law firms lawyers to their staple of willturn more complicated transactions, however, in-house chosen for litigation to be the DIFCCourts. On a‘split provision’,to incorporate with the court the contract, it isalsonot uncommonfor them frequently include anarbitration clause within routinely handle such negotiations. While they will DIFC Judgments andthe Debate Over Enforceability: Jurisprudence andthe Challenges inthe Early Years 80 Onbasicdeals, in-house lawyers will 79 While other in-house colleagues 78 One in-house lawyer

process. Bycontrast, andbased ontheir own agreements, but there issome disillusionwith this To be sure, arbitration isstill used andincluded in within contracts asthe venue for resolving disputes. more sympathetic to privileging the DIFCCourts For these reasons, in-house lawyers have become tensions canemerge. consultation, andit isinthese situations where to prevail inarbitration?’to placed onarbitration. ‘What does it even mean unsatisfied by the heavy lawyers reliance law firm Specifically, in-house lawyers stated that they felt and difficult asanyand difficult standard litigation matter. commence the proceedings canbe ascontentious on where to meet; andwhen the arbitration does Rather, it cantake several months just to agree go into aroom andsettle the matter inone sitting. the different parties andarbitrators allpeaceably that it wasnotasthough when adispute arises, the arbitrators. One in-house lawyer commented they result from the other parties, themselves or Delaysand efficient. often are present, whether rejecting the argument that arbitrations are speedy Other in-house lawyers supported this point by he stated. over the place ...andthis cantake years,’ ‘We findourselves having to chase down assets all that award. necessitate automatic enforcement of award wasonlyanearly anddidnot step first proceeded to explain that winninganarbitral a multinational conglomerate. lawyer This of 81 82 asked the legal counsel asked the legal 83

65 not fulfilling their contractual obligations. and asadeterrent to parties who are considering parties to adhere they to the agreement signed Courts, therefore, serve as motivation for the the DIFC Both the presence andlegitimacy of settle rather than resorting to the DIFCCourts. the contract, andwhere they cannot, they tend to parties have anincentive of to execute the terms work hard to avoid being incourt. Hence, the required to pay for costs legal both sides—they litigation is definitively—and that the loser of a premium on resolving matters expeditiously and Because parties know that the DIFCCourts place within acontract provides another benefit aswell. the DIFCCourts option asthe forum for recourse In-house lawyers believe that being able to insert their employers. of decisions onbehalf make legal useful for in-house lawyers to consider asthey precedential value for future cases andare thus In addition, rulingsby the DIFCCourts canhave nhuelwes fprolonged litigation. in-house lawyers) of laborious, hassle (inthe eyes unnecessary of cases to be resolvedthewithout and quickly orders. procedure The allowsjudgment summary the DIFCCourts cananddoregularly issue perhaps the most attractive feature. Specifically, expediencyThe that the Courts canprovide is the DIFCCourts.have afavourable impression of perceptions they have in-house lawyers formed, others, orupongeneral experiences of experiences, THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS 85 86

Supportive ForeignSupportive Lawyers they are every bit asgoodhere asthey were there,’ respective home jurisdictions. ‘Inmy experience, appeared before certain judges inthose judges’ fact, some lawyers stated that they hadactually and care about the justice being administered. In illustrate they have studied the cases beforehand and the questions they askduringproceedings they are well-reputed. experience Their isdeep, Britain, Malaysia, Singapore, andthe UAE, and the world, includingAustralia, different parts of judges from the DIFCbench iscomprised of cpia fanything except for arbitration.’ of sceptical lawyers international are stated, majority of ‘The these respondents dispute settlement. Asone of of but wholaw donothue to the conventional firms views lawyers who work ininternational of There isacorps the sitting judges. the DIFCCourts relates to their admiration for A finalreason cited for why these lawyers value compared to the DIFCCourts. dispute resolution—especially when method of they alsoconceded that it canbe anexpensive that it hadimportant benefits andadvantages, lawyersinternational used arbitration andfelt in-house lawyers. Moreover, although these the that they are sympathetic to the views of stated others individualandaminority of This commented positively acumen. ontheir legal DIFC Courts, lawyers familiarwith them also sentiment, and asfor the Emirati judges onthe one lawyer remarked. Other lawyers echoed this 88 As discussed inthelastchapter, Asdiscussed

87 90

and arbitration ratification decrees. 6o 2011. 16 of Federal CivilProcedures Law’ through the DubaiCourts, inaccordance with the that ‘DIFCCourts’ judgments are enforced Beer. effective enforcement,’ says with little chance of expensive, time-consuming andopaque process so asto steer unsuspecting clients into amore and, sadly, onoccasion,intentionally misleading decisions orarbitral awards are misguided simply enforce inthe Middle East than other UAE courts’ that DIFCCourts’ decisions are any harder to Dubai, the greater UAE, orabroad. ‘Suggestions Courts’ judgments are to enforce difficult in rejects Beer flatly the point thatFirst, DIFC businessinternational hub. Dubai’s growth asan to the strength of for why the DIFCCourts are andvital necessary just arebuttal but also apowerful, case affirmative and hiscolleagues are resolute inpresenting not the DIFCCourts. Beer are strong champions of respects himgreatly and,like him,they too staff institution. Withininto aglobal the DIFC,Beer’s on Mark Beer’s role the inshaping DIFCCourts In the previous chapter, Sir Anthony commented and are part andparcel of, the DubaiandUAE to Beer, the DIFCCourts are within, integrated such asfreezing orders (Mareva injunctions),’ Courts ... [even now including] interim orders, Courts’ orders have been enforced by the Dubai cases where DIFC how ‘[t]here are anumber of of Advocates Inside the DIFCAdvocates DIFC Judgments andthe Debate Over Enforceability: Jurisprudence andthe Challenges inthe Early Years 91 Aspreviously stated, it isarequirement 93 Beer’s arunning tally keeps office 92 andDubaiLaw 95 According

judicial system. business.’ together in the future andto continue doing parties time andmoney but it allows them to work to promote settlement. Settlement not onlysaves judgment. Infact, ‘[t]he DIFCCourts are set up the DIFCCourts settle before there isafinal the cases that come before allof 90 per cent of on the DIFCCourts’ workload. Recall that over enforcement misses akey point discussed earlier Moreover, excessive about worrying this type of as well. should be recognised within the other Emirates then it onlyfollows that DIFCjudicialorders (and onparwith) the localDubaicourt rulings, judgments are recognised andenforceable by DIFCCourts’and enforced inanother. If that court orders from one Emirate are respected the UAE’s judicial system isA basicelement of cooperation andthe issue relating to enforcement.) the Abu DhabiJudicial regarding Department Courts have alsorecently signed aMOUwith as Abu Dhabi—should be alleviated. DIFC (The orders are enforceable inanother Emirate, such to whetherconcern—relating DIFCjudicial Given this approach, then, the second area of articles affirming this contention. articles affirming are those who have opinionsorwritten issued legal question this proposition, not alldo, andthere orsta r nne fenforcement inother Courts that are inneed of judgments emerging from the DIFC of a flood 97 While some international lawyers While some international may 99 The notion that The there issomehow 96 98

67 rbbeotoeo any claim—and sothe probable outcome of isto advise its client onthemore able alaw firm consistently andinaccordance withthe law, the trust that the DIFCCourts willdeliver justice Put another way, the greater the certainty and or that the outcome willbe effectively enforced. will not need the Court to tell them the outcome, the DIFCCourts asthe forum to settle disputes) whom willhave contracted for parties (many of final,andenforceable,efficient, then rational job, andits judgments are perceived aslegitimate, value the process. parties typicallysettle—a key for why they deeply isbecause,has arisen. This asBeer reiterated, asituation inwhich this issue the absence of of rather, andless dramatically, merely symptomatic usingthe DIFCCourts, but afear of indicative of be routinely tested inaplace like Abu Dhabiisnot common for aDIFCjudgment’s enforceability to Emirates isnot the reality. That it hasnot been in sickbeds orare dying. patients that are hospital based onthe number of many cases are onadocket issimilarto evaluatinga because ashe remarked, judgingacourt by how in the region. For Beer, this isaspuriouspoint, businesspeople working difference inthe lives of makes asubstantiveto trial, the DIFCjudiciary really are, andwhether, given how few cases go discussed above wondered how busy the Courts to evaluate the DIFCCourts. Some observers that he believes isanimproper metric by which rebuttalThis by Beer alsorelates toanother issue THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS 100

101 I acourtisdoingits If

that emerge the from the DIFCjudiciary. If c) are willingto respect andenforce judgments the UAE government; and of the endorsement DIFC Courts; b)recognise that the Courts have jurisdictions: a)see the positive work from the it isnot soremarkable that judges from different and memorialise them by signingMOUs. Moreover locations regularly enter into cooperative arrangements and even barassociations from different geographic binding treaties. But judges, judicialorganisations course, knows that these memoranda are not DIFC Court judgments andvice versa. Beer, of matter andclearly signalthese judges’ respect for US, Singapore andAustralia, for example, do andthe courts inBritain, thethe DIFCjudiciary the memoranda that Beer hasfacilitated between the UAE hasabilateral treaty. For other countries, Riyadh Convention, orwithin states with which that are parties to the GCCProtocol orthe issue with enforcing DIFCjudgments incountries footing withthe Dubailocalcourts, there isno borders, since the DIFCCourts are onequal Regarding enforcement beyond the country’s the country. imprimatur, they willbe enforced throughout judgments are issued with the DubaiRuler’s ability to select the judge); arbitration (albeit less private andwithout the will most likely be cheaper andquicker than DIFC Courts are there to serve them; the process If, however, aparty opts for goingto trial, the apre-filing settlement. greater the likelihood of 102 andgiven that the

that impact their own reputations? even meet, let alone signcooperative agreements would eminent juristsfrom different jurisdictions enforcement wasgoingto be aproblem, then why Courts were not held insuch highregard, andif *** Hwang. Justicesubsequently developed by Chief then but idea originallyproposed by TimTaylor, QC and commercially friendly manner. DIFC Courts operate inacollaborative, efficient, knowing that the community with the comfort of ultimate objective remains providing the business with the arbitration bar—especially since his Therefore, Beer welcomes opportunities to work namely when arbitral awards need to be ratified. (particularly those usingDIFC-LCIA arbitration), Courts regularly work with arbitration lawyers sum game. AsChapter One discussed, the DIFC DIFC judicialprocess orarbitration isnot azero- the New York 1958,’ Conventionof of enforcement under the provisions internationally an arbitral award [and]providing greater ‘convert[ing] aDIFCCourts judgment into of including arbitration lawyers, to discussways community, the Dubailegal of with members attitudeThis alsoexplains hisdecision to meet for incommercial parties engaging transactions. In sum,Beer’s charge isto dowhat isbest andjust DIFC Judgments andthe Debate Over Enforceability: Jurisprudence andthe Challenges inthe Early Years 105 choiceThe between opting for the 103 106

104 an an

of the DIFC Courts sign a Memorandum of Guidance in 2015. in Guidance of Memorandum a sign Courts DIFC the of

SC Hwang Michael Justice Chief and Council Judicial Federal-State

Southern District of New York for the Advisory Group to the New York York New the to Group Advisory the for York New of District Southern Chief Judge Loretta Preska of the United States District Court for the the for Court District States United the of Preska Loretta Judge Chief THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS colleagues around the world. disposition to lawyers, investors andjudicial time actively presenting international aglobal, onthe one hand,whilelocal judiciary at the same andwork to integrate them—trying onparwith the position within acontext inherently foreign to the Courts have hadto findtheir own institutional moments since their founding. reveals, Asthis story DIFC Courts’jurisprudence hasevolved over crucial the how the thereFirst, hasbeen adiscussionof chapterThis hassought to accomplishtwo goals.

on the other. defences at trial, right to proceed with hisarray of allowing who alitigant had castigated them the in aPeter Gray-type case onthe one hand,while follow the law, that meant ceding jurisdiction even if decision-making institution that hadto faithfully that they were, andforemost, first aneutral in afashionsothat there couldbe noquestion Courts wanted to carefully position themselves delves further into this issue.) Perhaps then the increasingly more circumspect. (Chapter Three attitudes toward—the DIFCCourts became and 2017the climate surrounding—and domestic particular ways? isthat One theory during2016 to decide these employment matters inthese Appeal What might have prompted the Court of a defendant’s rights. to proceed inorder to ensure the protection of a casethat wastolerant andwillingto permit criticisms towards the process, showed aCourt his move ahead with hisdefences inspite of David Haighcase, where Haighwasallowed to the same time, however, the decision inthe eunn omr fits pre- to more of returning and Peter Gray, respectively, showed ajudiciary HakimAdil key employment cases involving Asif Appeal’s decisions in two narrative. Court of The level, there hasrecently been aslight twist to this Appeal illustrate, particularly at the Courtof followed. the 2017cases Yet, asthe discussionof such asCorinth Courts then became bolder, leading to decisions or wrong. Asthe years went on,however, the acknowledged that the outcome might be unfair statutory construction—even where they and strictly interpretive in matters involving an approach that might be deemed asconservative As we have seen, initially the Courts started with DIFC Judgments andthe Debate Over Enforceability: Jurisprudence andthe Challenges inthe Early Years adtesre fjudgments that andthe series of Corinth tendencies. At

local Dubaijudiciary. We to this issue now. turn tensions that have emerged with the because of Courts’ experiment couldbe seriously tested the judges have remarked, the DIFCAs several of this writing.and hasremained unresolved asof significant development that hasrecently occurred sentiments have had to be placed incheck due to a However, asChapter Three willnext detail, these time. short period of DIFC Courts have accomplished insuch a good reason to feel positive about allthat the world. Given these developments, have supporters the around the region, andindifferent parts of jurisdictions—onshore inDubai,within the UAE, have been recognised andenforced indifferent perspective demonstrate, various Court judgments the DIFC’s boundaries. But asthe rebuttals to this judgments meant anything substantive outside of whostakeholders expressed that scepticism such to different majorconcern early years, wasof for the winningside. issue, This duringthe relief translated from judgments onpaper into tangible to discusswhether these Court-rulings are being this chapter hasbeen second objectiveThe of

73 THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS of The there the the be Dhabi, orinother Emirates outside of-regulation-leads-to-a-free-for-all-in-legal-practices.) There THE NATIONAL, Oct. 26,2011,http://www.thenational.ae/thenationalconversation/comment/lack- the operating inDubai,the founded. Diane Though the arab-emirates/directory). The directory/); Linked In(www.linkedin.com); 500(http://www.legal500.com/c/united- Legal andThe htm?c=N); The Martindale-Hubbell (http://www.martindale.com/all/c-united-arab-emirates/all-law-firms-1. indexUAE (http://www.indexuae.com/Top/Business_and_Economy/Services/Law_Firms/1); relied onthe following databases: DIFCClient Directory (http://www.difc.ae/browse-directory); 1 isanupdated This version from what currently practicing inits Emirate firms international closer to 100.There financialcrisisin2008closed their offices following global the UAE. that Furthermore, afew firms Lack of Regulation Leads toa Free-for-All Practices Regulation inLegal within this table. firms (DianaHamade, Lack of Dubaimarket, andthen these Government seems to have Chadbourne &ParkeChadbourne Bracewell &Giuliani Bonnard Lawson Bird &Bird Al Mulla* Baker &McKenzie Habib Baker BottsLLP Ashurst LLP Arendt &Medernach* Amereller Rechtsanwälte LLP* Allen &Overy Addleshaw Goddard LLP* FIRM (* =Firms Registered(* =Firms AtTheDIFC) Law Office International of been a slight Department Affairs DubaiLegal are 2014pilot Hamade, that hassuggested that alsoafew firms alsoincludes names of Appendix establishing offices inDubai. firms uptick inmajor international were firms study andthis updated version are of APPENDIX A Dubai,meaning that were Directory (http://www.internationallawoffice.com/ contacted to verify their presence registered at have the pilot started inDubai,but there wasemailed, but US US Switzerland UK US |UAE US UK Luxembourg Germany UK UK FROM wasnot study in2014compiled. The the are the were

DIFCinthe law firms closer to 100international number of some received. crisis. In2012and2013,however, anumber of ESTABLISHED onlyable from observers who firms know of aconfirmation now have years immediately preceding inthe total firms andyears they were to definitively locate listed onlyinAbu firms 2007 2007 2014 2013 2014 2005 2007 2008 2005 2006 2012 1 offices outside 2 listof the UAE may firms number ,

DIFC Judgments andthe Debate Over Enforceability: Jurisprudence andthe Challenges inthe Early Years 5 4 3 2 having been established inDubai,or France, asitrefers toitself itself Dubai (andLausanne andParis). considers Itisdifficult toascertainwhether the newfirm founder, (Dumon&Partners) that BertrandDumon,opened aneponymous now firm operates in home officeover theother. Seehttp://www.davidson-legal.com/. NewsDetail.aspx?news=490. having closedtheirinitialofficeintheEmirate in1993. wasknown asDumon&Arago, but firm itnolongerexists This inDubaibecauseits seesitsEurope andUAE firm This officeasco-equalsanddoesnotdesignate oneasa Clifford Chanceestablished itsofficeintheUAE in1975. Chadbourne &ParkChadbourne resumed practiceinDubai2007afterafourteen-year absence, Dumon &Partners DLA PiperLLP Dentons LLP* Dechert Davidson &Co & MosleLLP* Curtis, Mallet-Prevost, Colt Lauzeral* Cotty Vivant Marchisio & Conyers Dill&Pearman* LLP CMS CameronMcKenna Clyde &Co Clifford ChanceLLP* FIRM 4

Seehttp://www.chadbourne.com/newsevents/ FROM France |UAE US US |UK US UAE Switzerland | US France Bermuda UK UK UK law asan‘independent firm.’ ESTABLISHED 1975 2012 2006 1969 2012 2008 2008 2010 2006 2012 2009 3 as

75 57 7

THE STORY OF THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS DIFC Judgments and the Debate Over Enforceability: Jurisprudence and the Challenges in the Early Years 89 77

FIRM FROM ESTABLISHED FIRM FROM ESTABLISHED

Eversheds UK 2011 Ince & Co. UK 2006

Everys Solicitors UK 2006 Jones Day* US 2009

Fragomen Del Rey Bernsen US 2008 Kennedys UK 2006 & Loewy LLP King & Spalding* US 2006 Freshfields Bruckhaus UK 2004 Deringer LLP* King & Wood Mallesons Hong Kong | 2009 SJ Berwin7 UK Gagrats India N/A K&L Gates LLP* US 2009 Gateley UK 2008 Latham & Watkins LLP* US 2008 Gibson Dunn & Crutcher US 2007 LLP* Lawrence Graham LLP* UK 2007 [Wragge & Co.]8 Herbert Smith LLP* UK 2007 Linklaters LLP* UK 2007 Hogan Lovells LLP* US | UK 2007 Lecocq Associates9 Switzerland 2013 Holman Fenwick Willan UK 2006 LLP Mayer Brown* US 2016

Hourani & Associates6 Saudi Arabia| 1978 Morgan, Lewis & US 2013 UAE Bockius10

6 This firm sees its Saudi and UAE offices as co-equal. See http://www.houraniassociates.com/home.html.

7 This firm was a merger between King & Wood Mallesons & SJ Berwin in 2013 and sees its strength as having hubs in the UK and Hong Kong.

8 Note, this firm has changed its formal name to Wragge & Company, but the change is not yet reflected on the DIFC website.

9 This firm has law offices in Europe but it is a business consultancy in Dubai, and does not dispense legal advice.

10 In their Dubai practice, Morgan, Lewis & Bockius operates in association with Mohammed Buhashem Advocates & Legal Consultants. 7

THE STORY OF THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS DIFC Judgments and the Debate Over Enforceability: Jurisprudence and the Challenges in the Early Years 91 79

FIRM FROM ESTABLISHED FIRM FROM ESTABLISHED

Norton Rose Fulbright UK | US 2003 Tribonian Law Advisors Lebanon 2011 LLP*11 Trowers & Hamlins UK 1991 Pinsent Masons UK 2008 Vinson & Elkins LLP* US 2003 Reed Smith LLP* US 2006 Walkers LLP* Cayman Isles 2005 Rouse UK 1997 White & Case US 2013 Saba & Co. Lebanon 1972

Simmons & Simmons* UK 200712

Squires Patton Boggs*13 US 2013

Stephenson Hardwood* UK 2012

Stibbe* Netherlands 2009

Taylor Wessing LLP* UK 2007

11 This firm is a merger between Norton Rose, which was based in the U.K., and Fulbright & Jaworski, which was based in the U.S.

12 Though Simmons & Simmons has been operating in the Middle East for over three decades, their first Dubai office was established in 2005. In 2007, they shifted to the DIFC complex.

13 The firms Squires Sanders & Dempsey merged with Patton Boggs in 2014. The DIFC lists the firm as Patton Boggs, but that is likely because it has not been updated.

a delegation from Beijing. from delegation a

addresses Courts, DIFC of General Registrar Beer, Mark fthe Judicial Tribunalof Decree 19andthe Introduction CHAPTER THREE that hadnot away shied from exercising its aDIFC judiciary was passed inthe context of Dubai Courts andDIFCCourts’. aJudicial Tribunal‘the establishment of for the Dubaisigned ‘Decree 19’,which set forth of Specifically, on9June 2016,HHthe Ruler the DIFCCourts andthe localDubaijudiciary. developments that have occurred regarding Justice Hwang explained to me the recent Chief him. and parties who appear infront of commands respect from andthe lawyers his peers strong-minded andstrong-willed individual who is soft-spoken andhumble, yet he isclearly a curious, contemplative anddeeply He person. Justice, personally,Chief engaging, isawarm, and impressive professional experiences, the onthe others.dinners Beyond hiselite credentials well asaccompanying himto events, meetings, and the days as interviewing himextensively for two of opportunity to spend four days with DrHwang, Justice hasmeant to him,Ihadthe as Chief Hwang. Inaneffort to examinedecade what a Justice Chief biography of already provided abrief Justice.has Hwang’s Chapter One tenure asChief commemorative 2008speech aswell asDrMichael Sir Anthony’s as the ten-year anniversaryof the DIFCCourts. Namely, of it serveshistory year,This 2018,marks amomentous year inthe SOME BACKGROUND this decree. a thoughtful analysisonthe implications of the rulesfor the DIFCCourts, have written of QC andTom Montagu-Smith, QC,the drafters 3 Astheir paper indicates, Decree 19 2 Michael Black, 1

would emerge. the DIFCCourts andthe localDubaijudiciary argue that it wasinevitable that tensions between exhibited their reach—Black andMontagu-Smith Chartered earlier (e.g., Corinth, National Bonds, andStandard the cases discussed Law (JAL) andseveral of the Judicial Authority under Article 7of granted was discussed inChapter Two. Citing the powers whatjurisdictional authority, alongthe lines of and then seek execution inthe DubaiCourts.’ a foreign arbitration award inthe DIFCCourts Otherwise put, ‘the JAL aparty to enforce permits awards, includingthose that are foreign-based. comes to recognising andexecuting arbitration act reciprocally towards one another when it that the localDubaicourts andthe DIFCCourts Montagu-Smith point out, the JAL alsomandates the DIFC’s borders. AsBlackand of parameters a foreign judgment onshore—or outside the a conduit, inorder to allow aparty to enforce Courts hadestablished that they couldserve as ...’ arbitration awards it came to ‘the enforcement of Yet, wasaccentuated even the conflict more when award cases andto be read together with the JAL. written to empower the DIFCCourts inarbitral Law (2008, amended in 2013) were intentionally Moreover, the DIFCArbitration Articles 42-44 of 5 Recall from Chapter Two that the DIFC )—where the Courts affirmatively 4 6

7 83 any claimsthat recognition andenforcement by both laws were clear, andas suchof it held that the drafters heard this case, the intentions of v Firuzeh indeed made by and Firmin the defendants inFiske Arbitration Law together. Such anargument was policy problems the JAL when interpreting andthe concede that there are constitutional orpublic DIFCCourts haveThe alsonot been willingto to adjudicate. with the JAL, precisely gave the Courts the power the DIFCArbitration Law,reading together of this matter, Sir John stated that Chadwick the that the DIFCCourts hadnojurisdiction to hear the DIFC.Indenying the defendant’s contention onshore inDubaibut that hadnoconnection to acompanyagainst that washeadquartered looked tohave aforeignenforced arbitrationaward Instance dealt with a case involving claimants who the DIFCitself. InEgan vEava whether there wasanexus to award irrespective of Courts held that they couldenforce aforeign emerged. For example, intwo key decisions the would seek to applythem to the cases that that the DIFCCourtsit shouldnot be surprising these statutes, Given the explicit language of DIFC but still inDubai. was onshore, the or, inother words, outside of inthewas based DIFCandwhere the arbitral seat foreign arbitration award even where neither party v Meydan Group LLC held that it couldenforce a inBanyan Tree Appeal Corporate Pte LtdCourt of THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS . For the Court of First Instance, First which. For the Court of 8 Buildinguponthis decision, the 9 h or fFirst , the Court of

tribunal ...[uponrequest] (from the tribunal).’ enforcing by interim measures granted the arbitral see themselves asbeing able to issue ‘anorder and DIFClaws. Second, the DIFCCourts also to necessarily include the DIFCCourtspurposes Dubai Courts oronshore Dubailaw for arbitration contracts that referenceright to interpret local matters. they First, have stated that they have the to enhance their powerother steps inarbitration LLC Al Fattan Engineering LLC and (2)AlFattan Properties of been followed, includingin the important casenot show, London at the LCIA. However,in aslater cases despite aforeign arbitration that was occurring Instance allowed acase to continue inthe DIFC DWS enforcement. Recall that inChapter Two, the be brought to the DIFCfor recognition and that the foreign outcome cansubsequently belief the proceeding taking place abroad, well as asthe is pending—thereby illustrating their respect for a DIFCjudicialmatter while aforeign arbitration And third, the DIFCCourts have decided to ‘stay’ must fail.’ the DIFCArbitrationpolicy ...[oragainst] Law the DIFCCourts ‘would UAE be against public order by the DIFCCourts canblock this effort. assets before anaward isprovided; thus such an during anarbitration may seek to hide reachable powerThis iscritical because alosingparty International Electromechanical Services Co. Electromechanical Services LLCInternational v (1) , which heldthat aDIFC-case shouldindeed be cs a icse,weeteCuto First case wasdiscussed, where the Court of DWS 10 wasananomaly. precedent This has Inaddition, the Courts have taken 11 12

matter needed to be settled by the DIFC Courts. that they hadnojurisdiction and holdingthat this ultimatelyjudiciary refused to intervene, stating neesr oterslto fthe case.’ to the resolutionunnecessary of create decisions andduplicative conflicting costs risk that anongoingforeign arbitration would ‘the was ongoing. reason The isbecause of the DIFC stayed where anarbitration outside of fthe award andthe costs.’ of long asDaman‘post[ed] security inthe amount to dosotemporarily so DIFCCourts agreed The local Dubaicourts hadcompleted their review. its decision onenforcementor adjourn until the Daman alsoasked the DIFCCourts to suspend to nullify the arbitral judgment. Subsequently, Appeal, and then subsequently the DubaiCourtof Centre, Damanasked the localDubaiCourt, onshore Arbitration at the DubaiInternational the arbitration was located. Because the seat of where Daman’s assets wereDIFC, because of and Oger wanted toenforce the decision inthe Here, anarbitration award went Daman, against Dubai LLC Partners vDaman Real Estate Capital Ltd Oger were onboard aswell. Consider the case of Dubai. Andfor amoment, the localDubaicourts Dubai,within law outcomes that occuroutside of understands, respects andenforces commercial institution, whichare international aglobal, foreign judgments illustrate that the DIFCCourts decisions onarbitrationThese matters and ere1 n h nrdcino the Judicial TribunalDecree 19andthe Introduction of 14 The localDubai The 13

. 15 to determine this case’ to determine Courts or the localDubaiCourts] iscompetent the two courts [the DIFC it ‘to decide which of time, Damanalsofiled amotion inthe JT, asking Cassation. At the same to the DubaiCourt of Returning to the case, Damandecided to appeal in attendance’). the voting members [out] by amajority of the Judicial Tribunal‘[d]ecisions of willbe carried in order to hear acase. Instead, it stated that mandate that sit together at allmembers one time Decree adeadlock. (Note: The didnot event of JT, thus givinghimeffectively two votes inthe the Justice AlImanserved alsoasthe President of (Chancellor KhalifaRashidbinDemas). Chief the DubaiJudicial Council Secretary General of Instance, First Justice Jassim Baqer), andtheof the DubaiCourt Justice of Sharif, andChief Dr AliIbrahimAlIman,Justice EssaMohammed Cassation, the DubaiCourt of Justice of (Chief Omar AlMuhairi),three from the DubaiCourts Justice Sir David Steel, andJustice Chief Deputy Justice Hwang,three from the DIFC(Chief seven members— case. JT wascomprised of The Decree 19became animportant institution inthis Judicial Tribunal (JT),which wasestablished by hadonlyjust begun. The19 in2016,the story Decree be resolved. But with the introduction of It would seem asthough this case would thus Courts’ justices comprisingthe dissent. For the President casting the deciding vote andthe DIFC ruling, the JTissued asplit judgment, with the 16 17 in full. In its first official infull.Inits first

85 the case.’ ‘DIFC [C]ourts shouldcease from entertaining judiciary. Assuch, the majority ruled that the entire matter should stay within the localDubai back with ajudgment saying that the came Court the Cassation with enforcement orders, especially if allow the DIFCCourts to continue proceeding decision, the JT held that it would be unwise to Cassation stillhadnot reached a of Court Dubai remain withinthis track. Moreover, given that the could it consequently to the localDubaiCourts, and decide this case, each court deciding the matters 3. There are therefore two competent courts to recognition andenforcement within the DIFC. jurisdiction to entertain anapplication for and exclusive DIFCChascompulsory 2. The Courts have jurisdiction to annul the award. seat are the DubaiCourts andthat onlyDubai the arbitral Courts (“DIFCC”)that the courts of by‘1. At allstages been it has accepted the DIFC As the opinionstated: to the dissent, the JTwent beyond its mandate. Accordingthree disagreed. DIFCCourts’ members Justice Hwang, theIn ashort dissent led by Chief The rendering avalid lawfulwere capablejudgment. of courtsmajority, the clear: casewas that both sets of THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS case onnullifying the 18 award wasfirst

brought

We to these cases next. turn even more layers to these developments. from the localDubaijudiciary, that provided decisions emerged from the JT, aswell asone Indeed inthe years that followed, aseries of addressing the enforcement issue. Dh965 millionarbitral award obtained by Oger.’ Damanand‘declaredagainst null andvoid a local DubaiCourts ultimately dismissed allclaims wonder. Addto this that inDecember 2017,the the DIFCCourts to working-in orsupportive of JT andthe Oger the Decree 19,the creation of overall of effect Still, even with this nuanced perspective, the implications asmay appear at sight.’ first judgment ‘may not have [had]as far-reaching expert based inDubai,hasargued that the Gordon Blanke,was concerned? anarbitration the DIFCCourts andthe localDubaijudiciary insofar asthe jurisdictional relationship between this decision by the JT What of wasthe effect to the relevant governing its jurisdiction.’ this case within its jurisdiction accordingconcerning with nullification or‘annulment’ room for adistinction between one court dealing the majority opiniongives that the language of But perhaps more importantly, Blanke points out counter-argumentsoffer to this point, though.) for why it shouldhave remained there. (He does Dubai Courts andthus there isalogicalargument one thing, he notes, the case started inthe local decision leftmany who hadbeen 21 22 andanother

20 19 For For

POST-OGER ihntebudre fthe DIFC.Also there within the boundaries of sale concluded orto be performed contract of atransaction or aarbitration didnot concern were not adversaryparties inthis dispute. The case,’ [stating]: DIFCandallits institutions ‘The courts hadconcurrent jurisdiction to entertain this from found the DubaiCourts again ‘that both the President casting the deciding vote), the judges In another splitdecision from with the JT(again profile case— Dubai Waterfront LLC vChenshan Liu. In December 2016,the JTheard its second high THE BANYAN TREEJUDGMENT AND RECONSIDERING THE DUBAI WATERFRONT CASE the DIFCCourts hadjurisdiction onthese issues. contrast, Liuanswered by contending that only on ratifying or annulling the arbitral award. In DIFC Courts—were the proper venue to decide declare that the DubaiCourts—and not the to Subsequently, DubaiWaterfront asked the JT recognise andenforce the award, which occurred. Chenshan Liu,petitioned the DIFCCourts to award inthe DubaiCourts, while the respondent, company. DubaiWaterfront moved to annul the Dubai Waterfront, which wasaDubai-based Arbitration CentreInternational that went against onshore arbitral award wasissued by the Dubai this case mirrored Oger factsof The ere1 n h nrdcino the Judicial TribunalDecree 19andthe Introduction of

, inthat an

25 24

with the laws applicable to such applications.’ the pending applications before it inaccordance by stating that ‘[e]ach Court is...free to deal with Justice Hwangthen added animportant line Chief Oger three dissent, citing the first points fromThe DubaiWaterfront. of proceedings within the DIFCandruled infavour As such, the JTordered astoppage to all is currently pending.) That decision, to be made by Sir David Steel, sent the casetothe DIFCCourts for arehearing. Liuand Cassation hasrecently ruled in favour of this writing,(Note: the DubaiCourt of As of majority’s rulingdidnot take this approach.the precedent from the DIFCCourts. Yet,line of whereby there wasanopportunity to defer to the the JT‘with atrue conduit jurisdiction case’, Given its specific facts, Dubai Waterfront presented this case.’ jurisdiction to the DIFCCourtsto decide betweenwas noagreement the parties on into its opinion,expressed its disagreement. 26

87 THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS aho them. each of Banyan Tree, voidingat three separate aspects of oa sokdcso fthe DubaiCourts’ decisionto of asa‘shock prominent QCRupert English Reed referred purview continued beyond the JTwith what narrowing the DIFCCourts’ trendThis of the judgment inthe following manner: the DubaiCourt andsummarised opinion of Amr Abdelhadi, dissected the Arabic-written decided. the key, above-mentioned Banyan Tree decision by Instance ruled that First the Dubai Court of shortly there after. On15February 2017,the hadbeen wrongly Appeal DIFC’s Court of 31 Infact, the DubaiCourt took aim 32 Reed, together with co-author 30

ordinary jurisdiction.’ the matter to the [domestic] courts of (iii) it does not prevent any party from referring (ii) it hasnobindingforce [but nevertheless] appeal; [because] to be challenged by way of (i) ‘there isnoneed for ...[aDIFC]judgment was that: As Reed andAbdelhadi explain, the implication it shallbe considered anullity.’ avalid judgment, ... fundamental qualities of C). Whenever aholdingby the acourt ‘lacks opinions;and offer lacked jurisdiction to entertain hearings orto it, they ‘opt in’, but for allother cases outside of over matters within the DIFCorwhere parties DIFCCourts shouldretainB). The jurisdiction ‘default’ domestic courts shouldbe considered The the A). 33 vnefrcsso concurrent jurisdiction. venue for cases of 35 34

ere1 n h nrdcino the Judicial TribunalDecree 19andthe Introduction of fthe DIFCCourts.’ of to it for enforcement waswithin the jurisdiction whether ajudgment presentedCourt ‘to determine the Dubaijudiciaries) inanew way: to permit reciprocity between the two of understanding Enforcement (which set forth amutual Protocol of to reference the 2009affirmatively andinterpret did more. Namely, it enabled the DubaiCourt the pivotal DIFCBanyan Tree case, but that it also rationale allow the DubaiCourt to strike down Reed andAbdelhadi argue that not onlydidthis courts existed asparallel institutional partners. thatthe long-held understanding the two sets of Courts inalocalDubaiCourt, thus vitiating parties to challenge anoutcome from the DIFC issued by the DIFCCourts. Second, it allowed for judgments that hadbeen, orwere goingto be, two consequences. it placed into question First, Otherwise put, the DubaiCourt’s rulinghad Arbitration Law. the DIFC the DIFCCourt Law orArticle 42of of they could hear amatter under either Article 24 the DIFCCourts control sole to decide whether the JAL (Article 5A(1)(e)), which gave the intent of toAbdelhadi, such wascontrary aninterpretation osdrdb h ua or fAppeal. considered by the DubaiCourt of orwhen this unprecedented decision willbe if 37 A fthis writing, it isunclear Asof 36 According to Reed and 38

89 7

Dr Ahmad Saeed bin Hazeem, former Director General of the Dubai Courts, and Sir Anthony Evans, former Chief Justice of DIFC Courts, sign a Protocol of Enforcement in 2009. payment of a vessel that Jinhai Heavy that had built. vessel a of payment by failingto make goodonasecond instalment- Navigation hadbreached ashipbuilding contract LMAAheld thatUSD 14.55million.(The Gulf JinhaiHeavy inthe amount of found infavour of Maritime Arbitrators Association (LMAA),which issued originallyby the LondonInternational aforeign arbitral award, the enforcement of Disputes Centre (ASDC)—to rehear the case. Dubai Courts body—the Amicable Settlement of been issued, it hadasked anonshore had order arbitral enforcement, arguing that before this the Navigation sought apostponement of Gulf though it hadaright to doso. InJanuary 2016, Navigation never challenged—evenwhich Gulf judgment recognising andenforcing this award, Less than a month later the DIFCCourts issued a to enforce itinthe DIFCCourts inNovember 2015. subsequently, then JinhaiHeavy soughtand motion, London Commercial Court, which rejected this the in Navigation award the moved vacate to Gulf Company. party appeared JinhaiHeavy against Industry Navigation 2017,the Gulf case of In the first THE 2017TERM the Judicial TribunalDecree 19andthe Introduction of 39 And once again, the case involved Andonce again, 41 40 ) courts to entertain this case.’ have the general jurisdiction, they are the competent procedure laws[,] and since [the] DubaiCourts laws embodied inthe to the general principles of judiciaries. two different opinionscomingout of contradictory wanted to promote andavoid harmony potential this case, justifying its decision by saying that it DIFC Courts couldnolonger be involved with Courts’. the Dubai part of that ‘the Center isanintegral [Dubai Courts] judge,’ the majority concluded rendered by by the the Center isto be confirmed the [Dubai]courts ...[andthat any] settlement [which] provides that this Center isattached to established by the [Dubai] Law No. 16/2009... said yes. Ruling that the ASDC ‘hadbeen judges from the DubaiCourts, led by the set of ASDC. Inanextraordinary opinion,the majority, Navigation couldproceed with its claiminthe question forThe the JTwaswhether Gulf 42 The JTthen proceeded The to holdthat the 43 Infact,it concluded that ‘[a]ccording 44

93 resolve that dispute.’ will leave it tochosenarbitrationtobody the will not exercise jurisdiction over that dispute but then the Courts (and anybody attached to a court) arbitration,to arbitration, especially international holds that where to refer ‘parties agree adispute Arbitration Law 2008 is a law that comes within Arbitration Lawcomes 2008isalaw that DIFC the DIFCC. ... [Andthat] Article 42(1)of is amatter comingwithin exclusive jurisdiction of accordance with DIFClaws andDIFCRegulations” which the Courts haveover jurisdiction in action same law [also]provides that “[a]ny claim or the“exclusiveArticle ... jurisdiction (5)A1(e) of that, where [the] DIFCChasjurisdiction, it is Judicial Authority Law”)[,] it isclearly stated 2011)(“the (as amended by Law No. (16of 2004 DubaiLaw‘Article No. (12)of (5)(A)(1)of In addition, the dissent argued that under: law’. international statement of what it believed were the majority’s ‘incorrect the dissent that systematically rebut portions of and enforce it. Infact, it isimportant to reproduce Convention (which includes the UAE) recognise dictated that allsignatories to the 1958New York Court refused to set aside the award, protocol was ongoing. Commercial After the English the LMAAwhile that arbitration jurisdiction of Navigation objected tothe that not once hadGulf DIFC-blocThe issued adissent. To begin, it noted THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS (“NYC”) which hasbeen acceded to by the UAE,’ the New Yorkfor inArticle II(3)of Convention Dubailaw ...provided dissent noted that ‘partof 47 45 To begin, the

International Arbitration Centre,International aone against won anonshore arbitration award inthe Dubai respondent, Sweet Homes Real Estate LLC, had where thesecond duringthe case 2017term In fact, the dissent replicated these points ina jurisdiction in[its] favour ...’ and wasaskingthe DIFCC to exercise its did have DIFCC jurisdiction to hear the case, Navigation ‘expressly recognizing that [the] a stay, which the dissent observed showed Gulf approached the DIFCCourts it hadasked for came before the JT. Instead, when it originally objection to the DIFCCourts until the matter Navigation hadnever raised ajurisdictional Gulf any other court within the Emirate. Moreover, should have quashed any subsequent hearing in in the DIFCCourts hadcommenced, which proceedings to recognise andenforce the award have this casebe heard by the ASDC came after Navigation toRecall, the application by Gulf left great unpredictability for future parties. For the dissent, insum,the majority’s ruling with’ the majority’sdisagree[d] rationale. 2016,to state it ‘respectfully Decree 19of of 2011),aswell asArticle 4 by Law No. 7of 2004(asamended DubaiLaw No. 9of 8(2)(7) of awards. Andit finallyconcluded by citing Article also gives the DIFCCourts the power to enforce dissent then wentThe onto say that Article 42 exclusive jurisdiction to hear this case.’ Article (5)A(e) andtherefore [the] DIFCChas 50 48 49

Ramadan Mishmish. argument andthereafter prohibited the DIFC by majority waspersuaded The the appellant’s the DIFC.’ neither assets ...nor any business connection with ‘not have any connection with the DIFC...[and] because it wasanonshore Dubaicompany that did the DIFCCourts didnot have jurisdiction over it ajudgment hadbeen rendered inEngland, even if its obligation to pay, andinthe alternative that there hadbeen delays inthe delivery that negated Ghana to Germany. appellant argued The that crude oilit hadtransported from shipping of appellant for the latter’s failure to pay for the and won the ajudgment inLondonagainst by the DIFCCourts. respondent The hadsued commercial court judgment couldnot be enforced majority votes from the JTheld that anEnglish , theAnd inEndofa DMCCvD’AmicoShipping Italy the Judicial TribunalDecree 19andthe Introduction of this DIAC award. Law mandated that it couldrecognise andenforce that Dubai’s own law andthe DIFCArbitration before, dissent reiterated to the its positionsimilar Navigation decision. And reasons stated initsGulf the Courts were the proper venue for allof this matter. JTheld that The the localDubaiof the jurisdictionthe JTwasbest able to determine in the UnionSupreme Court, which ruled that eventually issued. Mishmishthen filed amotion and enforced inthe DIFCCourts, which was Sweet Homes moved to have the award recognised Dubai Courts toset aside the award; thereafter, 53 52 51 Mishmishapplied to the was improper and‘groundless’ Court could adjudicate onthis question, andit Emirates Trading stated, onlythe Federal Supreme n‘bs fprocess.’ an ‘abuse of dissent stated, such behaviour by would aparty be legitimate procedure inthe DIFCCourts. Asthe halting what otherwise would be a as ameans of onshore courts at any time (priorto aJTverdict) Endofa not yet delivered ajudgment. Otherwise put, after matter when either wasfiled, solongasthe JThad courts, it does not a case ispresent inboth sets of proceedings onthe matter. It then held that where Courts from continuing with any further e yCifJustice Hwang.led by Chief the previous dissent upon additional language of rejected this plea outright—and drew directly Courts were unconstitutional. However, the JT Emirates Trading appellant’s motion that the DIFC the of dissent entered into this decision interms to hear the matter originally. Note, the Endofa to expect anything otherwise. London Commercial Court ruling. a recognition andenforcement judgment of dismissed the appellant’s challenge to aDIFC N.V.Bocimar International , the JTunanimously all unanimous. InEmirates Trading AgencyLLC v were the cases from the 2017term remainder of At the same time, it isimportant to note that the had ‘waived ...objection’ case inthe localDubaiCourts andthe appellant a relatively easy case. There wasnocompeting it would appear that aparty coulduse the 54 56 to the DIFCCourts 57 Asthe Tribunal in 58 for the appellant 55 This was This

95 LCIA arbitration award by the DIFCCourts. aDIFC- unanimously upheld the enforcement of Limited Limited vFius Capital Assas Investments wn aki aoro the DIFCCourts ...’ swung backinfavour of to speculate recently that the ‘[p]endulum [has] unanimity,continued leading some this trend of the 2017term Indeed, the finalthree cases of THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS located onshore. one set located within the DIFCandthe other the appellant— seeking to reach separate assets of execution proceedings’ the ‘parallel reasonThe wasbecause each of jurisdictional orproblemconflict of confusion. Dubai Courts, the JTunanimouslyfound no the appellant inthe local aclaimagainst pursuing Even though the respondent wasconcurrently 62 61 involved the respondent , the JT 60 59

In In case involving IGP andStandard Chartered. TribunalThe then heard afollow-up to its2016 procedural affairs. the localDubaiCourts to administer their own both the DIFCCourts and of independence Tribunal adamantly refused to doso, citing the JT askingit to nullify these pre-conditions. The IGP refused andbrought this second case to the the costs ordered inthe ...[earlier] proceedings.’ was the improper venue] andthat ...[it] settle[d] before the UnionSupreme Court [that the DIFC to allow solong asIGP ‘abandon[ed] its petition the DIFCCourts, which the Courts were willing 2017 case, IGP wanted to make counterclaimsin thatwas inthe propermatter the venue. Inthis the appellant’s earlier acknowledgment because of continue to proceed with the case it washearing in allowing the DIFCCourts to respondent Recall that in2016the JTsided with the 65 63

*** Limited to manage ahotel that the latter owned. company, VIH,contracted with AssasOPCO 2017,aCayman Island In the finalcase of to operate inDubai. documentation andnot having avalid license hiringemployees without correct accusing it of with VIHafterAssas cancelled the agreement issued by the DIFCCourts. to disrupt the interim measure that hadbeen had issued asubstantive ruling,need there wasno cases before them, because neither pending had courtsTribunal held that even though both sets of ordinary jurisdiction. Instead, aunanimous of matter to the localDubaiCourts asthe venue based onpast case law the JTought to send the to resolve the dispute. Assasargued that strictly wasto commence inorderthe originalagreement) while anarbitration (which wasprovided for in agreement. Thestay DIFCthe granted Courts to the localDubaiCourts to invalidate the entire stay within the DIFCCourts, while Assaswent Tribunal] shouldnot intervene.’ between the two courts ...[andassuch the jurisdiction ‘at this stage, of there isnoconflict ere1 n h nrdcino the Judicial TribunalDecree 19andthe Introduction of 67 Thereafter, VIHsought a 68 Asthe panel held, 69 66

97 unanimously decided. While it may be tempting its 2017term—were those at the endof the JT’s cases—particularly a goodnumber of more measured analysisisneeded. Consider that questions inthe affirmative, a uponreflection Although it may be attractive to answer these it? to left that the latter thought shouldbe encroachmentunnecessary oncertain mattersbeen sitting onthe JT)have felt asthough there had thereby the judges from the localDubaiCourts over the years, (and might the localjudiciary put, asthe DIFCCourts’ jurisdiction hasexpanded judgments andforeign arbitral awards? Otherwise in recognising andenforcing foreignthe areas of the JTseek to curtail the authority DIFCCourts’ 2017 may raise two related questions. did First, For some observers, the splitopinionsin2016and unanimous judgments. allresulted init heard duringthis term 2017,but the last four cases that early cases of Subsequently, onthree the JTthen split again GroupNavigation Holding andInvestment Private LTC. decisions inMarine Logistics Solutions LLC, Gulf cases, per endnote 38above, with unanimous Dubai World. However, the JTfollowed upthese thereafter issued split-judgments inOger passed andthe JTcame into existence, which year for the DIFCCourts. Decree 19was To review, we have seen that 2016wasapivotal the Judicial TribunalDecree 19andthe Introduction of

and

hi w,o r led ntepoeso doingso. their own, orare already inthe process of courts of contemplating establishing similartypes of are Dubai aswellthat asfor other jurisdictions this experiment havebroader been for lessons of address these queries. It then willset forth what the this study willattemptconcluding chapter of to when, and what might these amendments be? The so, to Decree 19onthe horizon,reforms andif and willthey continue to be able to thrive? Are the years ahead, what willthe Courts looklike constitutionality. and enforcement powers—as well asto its as to the DIFCCourts’ jurisdictional, recognition cases, there wasconsensus amongthe JTjustices Particularly inthese latter unanimouslyheld the matters that were heard. in the majority of the Tribunal of amongthe members agreement from the DIFC, inreality overall there wasmutual justices from the localDubaiCourts andthose to accentuate the differences between the JT’s status asaconduit jurisdiction.’ and ...breath[ing] life backinto the DIFCCourts’ has described asproviding ‘encouraging sobriety 2018,issued arulingthat Gordon Blanke spring of First Instance,of Court DIFC the print, in the mean for the DIFCCourts. Asthis bookgoes to Decree 19andthe JT what the developments of Justice Hwang’s tenure, Chief the tenth year of Still, it isimportant to ask,especially aswe enter 70 71 But overall, in

99 CONCLUSION re borpiso the judges who have served. of biographies brief the Courts’ caseload and with adiscussionof changes over time intheir operation. It concluded Courts are structured, andhow there have been how the DIFC also included anoverview of chapter This formation. who initiated the plansof the visionaries Courts, of alongwithadiscussion regulatory frameworks that helped establish the There wasafocus onboth the legislative and how the DIFCCourts came into existence. of From there, Chapter One detailed the mechanics frequently acomplicated story. texturedid not offer ornuance to what ismore ‘good guys’or‘badwastoo simplistic and foreign being either the actors legal description of argument wasmade that the oft-provided, binary globalisation. Alsowithin this chapter, theera of foreign operating actors inthis legal literature of placed the DIFCCourts narrative into the larger the institution they are today. Introduction The emergedDIFC Courts first andthen evolved into precedingThe chapters have outlined how the BRIEF SUMMARY

on this front. to the significant advances that have been made powerful articulation from as DIFCofficials were stakeholders presented, followed by a of debate, extensive interview data from arange the enforceability of approach.purposive Interms and strategically scaled backthis intentional, in 2015,the Courts, sensing resistance, carefully the Emirate. But aswasexplained, beginning of a more expansive role both within andoutside led to greater boldness andawillingness toplay institutional maturity, this attitude shifted and progressed, however, more andthe Courts gained to their own jurisdictional authority. Astime alongwith questions relatinginterpretation statutory andregulatory addressed matters of years the Courts were restrained inhow they the former, inthe early of the Courts. Interms the judgments from the actual enforceability of concentrated onthe high-stakes debate over the Courts’ jurisprudence; part two of discussion. Part one focused onthe evolution Chapter Two then moved into atwo-part

101 In other words, iscomplicated. the story the Tribunal’s actions orits jurisprudence. Courts isnot likely to capture the fullpicture of starkly positive orstarkly negative for the DIFC analysisonwhethera binary the JThasbeen for example, inOger them were distinguishable from the decisions, of for the JT, the facts, circumstances andcontexts 2017.Regarding these cases, crucial cases of set of was reached by the judges, includinginthe last matters heard by the JT,the majority of unanimity notwithstanding three other split decisions, in However, aswasalsonoted inChapter Three, they argued shouldhave led to opposite results. law, Emirati law, law andinternational which existing precedent DIFC that hadinterpreted considering the emphasising the importance of the DIFCCourts penned two respective dissents Courts. In response, the judges representing and Dubai Courts. Initially, aswasdiscussed, inOger between the DIFCCourts andthe localconflicts 2016 andwastasked with resolving jurisdictional the Judicial Tribunal (JT),which emerged in the case law from There wasanexamination of Decree 19in2016. government’s enactment of the events that have occurred since the of Finally, Chapter Three offered adetailed analysis THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS Dubai World , the JTsided with the Dubai andDubai Water . Therefore,

whole to ‘operate more ...’ efficiently ‘greater clarity’ inorder for system asa the legal commercial law matters, overall it still needed justice on requirements’ to the administration of the originalversion offered some new ‘welcome the Decree andnoted that while evaluation of AlTamimifirms, &Company, published acareful Dubai’s most prestigious domestic In fact, one of Decree 19issoonlikely to witness amendments. Several lawyers with whom Ispoke stated that may even be rendered moot inthe monthsahead. questionnon-unanimous rulingsin2017.This ie fOger, Dubai Worldlines of or whether alongthe cases willsplit once again willcontinue, the last term witnessed at the end of whether the consensus-based approach that was 2018,it istoo early to know quarter of the first Moreover, asthis bookisbeing completed during h aefreo law within the Emirate. the same force of rely translations, onunofficial which donot carry Courts, foreign lawyers andforeign clients must the law isinArabic, which means that the DIFC this writing, the onlysuch version of public. Asof Decree 19to the translation English of an official by with whom others Ispoke) were, providing first, changes that were (as well by as suggested the firm orthe three other 1 Amongthe 2

neto fthe Decree itself. intention of allow for protracted delays—the exact opposite as anomnibus appellate forum, which then would the Decree would enable parties to use the JT of Various lawyers alsoworried that the language were to have prospective orretroactive effect. the JT according to the Decree, the decisions of Furthermore, it wasuncertain asto whether, deadline respondents were to rebut such charges. Nor wasthere guidance onhow andby what within the JThadbeen launched them. against respondents were to be notified that aproceeding how Decree waspassed, there wasnomention of the Decree from the start. For example, when the procedural ambiguities have been present within In addition, AlTamimi &Co. hasnoted that Conclusion 3

to occurthis year. even noted to me that such changes were going to be underway. One senior, prominent lawyer As stated, plansfor amending Decree 19appear be made to the Decree inthe future. and they thus await word onwhat changes will this conversation have these goalsincommon, in law. the important stakeholders Manyof of also being able to maintain andupholdthe rule on how best to accomplishthis objective while institutions, includingthe JT, want aclear remit In order to facilitate such continuity, the Emirate’s worked sohard to build over the last two decades. that itconsolidate has the globalisation enterprise for foreign investors. Furthermore, it iskeen to Dubai wishes to remain afriendly environment to spark unwanted consequences. Namely, consensus from the JThasthe potential lack of individual, wasbecause future uncertainty ora 4 The reason, The according to this

103

a Memorandum of Understanding in 2009. in Understanding of Memorandum a

sign Courts DIFC the and Courts Dubai The ecosystem. and develop profession its legal andbroader legal bar association, it wasincumbent to help nurture believed that because Dubaididnot have aformal cases and issuing judgments.’cases andissuing managing than just their ‘core responsibilities of back to 2004,the Courts were inmore engaged this point. Andso, perhaps not surprisingly, dating Courts, from were their inception, keenly aware of the DIFC commercial architects court. The of aglobal sophisticated clients, especially infront of service what canoften be complicated demands of the lawyers who work within it have the skillsto investorcase to the international community that economy.global Emirate The iskeen to make the and challenges that come with competing withina accommodating the opportunities, pressures of —namely, ensuring that system iscapable its legal there isaneven larger issue that confronts Dubai in the manner that the above advocates sowish, Assuming that Decree 19iseventually reformed THE AOL ROLE INCREATION OF AND THEDIFCCOURTS’ THE LEGALPROFESSION THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS 5 The Courts’ framers The

Courts andDIFClaw. relevant literature pertaining to the DIFC educationallegal programmes, andproducing practitioners, conducting training andcontinuing lawyers, promoting professional responsibility to to the needy, body serving asadisciplinary for aid activities included legal the DIFC.These ‘ancillary services’ ‘ancillary existence, the Courts provided aseries of theirIn particular, decade of duringthe first and administrative independence. these services required further institutionalisation growing that consensus amongCourts personnel matters,be spent onthose ancillary there was increasing, which limited the time that could cases entering the Courts was the number of 6 to those working within 7 Astime progressed and 8 ihAtce85()o this Law.’ with Article 8(5)(b)of other tribunals bodies inaccordance orancillary Centre’s Courts; the Arbitration Centre; andany serve asthe umbrella structure overseeing ‘a.the the DIFCJudicial Authority.) DRAwasto The called what DRAsuperseded The wasformally the Dispute Resolution Authority (DRA).(Note: which established officially abody known as 2004), 2014(amending Law No. 9of No. 7of had received enhanced powers, under DubaiLaw in Chapter One, ayear Justice earlier, the Chief Hwang, amajorchange occurred. Aseluded to Justice Chief of In 2015,under the leadership Authority Order No. 2,inwhich he declared: 2015)issued Dispute Resolution May of (in JusticeDIFC. Inthis capacity, Hwang Chief profession the legal within the the operations of which allowed himto address issues relating to the DRA, was alsodeemed to be the ‘Head’ of Conclusion 9 TeCifJustice Chief The

legal community.’legal the events for the benefit of and the hosting of professionalaccess to justice andlegal ethics; Courts and the promotion andmaintenance of before practitioners the DIFC the registration of training on DIFCCourts Laws andProcedures; andprovision information of dissemination of Academy shallinclude but not be limited to: the the DRA mainaimsandactivities of The entity separate from the Courts. DRAAcademyThe willact asanindependent profession. the legal of Courts andmembers as well asother networking events between DIFC the(ESC); and(vi) Annual GalaDinner, Legal (v)the Educationnewsletters; Sub-Committee textbookslegal andarticles, Law Reports and literature such asthe DIFCCourts Rules (RDC), DIFCCourts related (iv) the publication of the DIFCCourts; on the Laws andPractices of Lecture Series andArabicLanguage Seminars in Laws andProcedures, Advocacy Training, programmes such asthe DIFCCourts Certificate Practice; (iii)allcurrent DIFCCourts training Professional Best Legal DIFC Courts Code of Conduct andthe Courts Mandatory Code of the DIFC andobservancePractitioners of Pro BonoProgramme; (ii)the Registration of provided by the DIFCCourts, namely: (i)the the following services currently legal ancillary I hereby transfer to the DIFCDRAAcademy the DIFCCourts, Justice of DRA andChief the‘By this Order, inmy capacity asHead of 10

107 Consider that intwo years (2016and2017), among participating stakeholders. professional knowledge’ allow for the ‘shar[ing] of and c).fostering networking opportunities that b).providingpractitioners; pro services; bonolegal a). registering andregulating DIFCCourts’ LSD areas, three objectives are priorities:and CSR cross- knowledge. jurisdictional legal For the lawyers onhow to enhance b). the teaching of practice-oriented literature; and publication of there isatwo-prong focus: a).anemphasis onthe System DevelopmentLegal (LSD). Under L&D, Social Responsibility(L&D); Corporate (CSR); and andDevelopmenton three mainareas: Learning Justice’s above-statedChief directive by working begin, the AOL iscentred onoperationalising the this organisation. Tothere are multiple of goals the AOL hasstated,David Gallo, Director of the AOL were similar. aspirationsThe of As technology.’professional development andtheuseof and efficiency of dispute resolution, andimprov[ing] the standards law, promot[ing] Singapore asacentre for rais[ing] Singapore profilethe international of legal profession by knowledge, enhancing legal the [country’s] intellectual capital of the up statutorily-created body with the goal‘to build Law hademerged asa Singapore Academy of bythe hisexperiences inSingapore. There, Law (AOL)—was positively influencedof that alsohasbecome known asthe Academy the DRAAcademy— Justice’s of vision Chief The THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS practice legal through continuing 12

11 International, London,alongwith the LawInternational, course.) Andthe AOL isworking with Barbri far, forty-four students have registered for this andNew Yorkthe California barexams. (Thus company Barbri,which prepares enrolees to take coordinated hosted by course the American these initiatives isaspecialAOL- as part of practice.that legal emphasise global Included aswell forpractitioners ascourses law students have promoted continuing education legal for relationships These Department. Affairs Legal along with collaborations with the Dubai New York University andMiddlesex University, London, American University in the Emirates, with institutions such asCity University of Relatedly, partnerships there hasbeen anarray of court reports, andcourt rules. have been issued, such commentaries, aslegal around 1,200people. Andvarious publications over 150lawyers participating, which have helped AOL hasfacilitated pro clinicswith bonolegal nearly 2,000total participants attending. The separate educational events have been held with unfamiliar with this system. Approximately 100 law practice for foreign commonlaw lawyers Conversely, the AOL oncivil hasheld seminars as aproductive way the domestic bar. toengage common law to Emirati lawyers, which Gallosees There have been intensive training sessions onthe andapproximatelyfirms 285individual lawyers. over eighty lawexample, the AOL hasaregister of activities. Forthere hasbeen awide range of Gallo), (including with just afive-member staff months.’ 12 past the LCIA hasseen asignificantsurge in the DIFC- has been that ‘[t]he case loadof result edn oterluc fDIFC-LCIA.’ leading to the relaunch of ... had selected DIFC-LCIA Rules, [effectively] arbitrations inwhich the parties administration of ‘the management and has been incharge of Since November 2015,the Arbitration Institute until 2014it couldalmost be viewed asmoribund. saw its workload stagnate, to the point where up its campus. Over the years, this DIFC-LCIA office Arbitration (LCIA) International within Court of DIFC established ajointventure with the London background isperhaps required. In2008,the alternative to other judicialroutes.’ which to enforce their inheritance wishes asan option to choose the DIFCCourts through with assets and/orchildren inDubaiwith the ‘wasestablishedoffice to provide non-Muslims (now known asthe Wills Service Centre), this the DIFCWills andProbate Registry of In terms Registry. Arbitration Institute andthe Wills andProbate to serve two other units that were created: the to the community, the AOL hasalsosought assistance resolution services andvaried types of Finally, inaneffort to provide further dispute Conclusion as English solicitors.as English Cooperation Councilstates to qualify other Gulf lawyerseventually from permit the Emirate and Regulatory Authority, onaplanthat would andWales England andthe Solicitors Society of 14 16 Regarding the former, abit of 13 17 Since the 15 The The ocryotteoealmsino the Academy. out the overallto carry missionof professionals are skills equipped with the necessary developing commentaries onlaws—so that legal instilling confidence inthe probate process, or educationlegal onalternative dispute resolution, providingare provided—whether inthe form of this idea, whereby services simply anextension of Institute andWills Service Centre, therefore, is feel secure. AOL’s The work with the Arbitration law standards uponwhich these investors could judicial institution that would adhere to rule of that there needed to be astable, transparent commercial interest, was the theory surge of there wasgoingto be a to invest inDubai.If originally established to help attract foreigners the DIFCCourts. Recall, the Courts were of theme that traces its roots back to the founding Both these initiatives highlight anoverarching Director. Clifford Chance solicitor, Sean Hird, asits aformer are highasindicated by the hiringof aspirations the but inthe long-term, will perform two years, to know it isdifficult how this office Registry hasonlybeen inoperation for less than 2016 and1,481in2017. already 1,245 registrations in filed with the office 18 Infact, according to Hird, there were 19

109

Authority in 2015. 2015. in Authority

Chief Executive of Emirates Group, open the DIFC Dispute Resolution Resolution Dispute DIFC the open Group, Emirates of Executive Chief

and Chairman Maktoum, Al Saeed bin Ahmed Sheikh HH and

Courts, DIFC SC, Hwang Michael Justice Chief DIFC, of Governor

Mark Beer, Registrar General of DIFC Courts, HE Essa Kazim, Kazim, Essa HE Courts, DIFC of General Registrar Beer, Mark

made a substantive impact thus far. thus impact substantive a made

efforts are certainly sincere) that this body has has body this that sincere) certainly are efforts

Fortunately, the early signs are positive (and the the (and positive are signs early the Fortunately,

AOL—is another central aspect of this process. process. this of aspect central another AOL—is

its roots in the principles that are promoted by the the by promoted are that principles the in roots its

maintaining a sound legal profession—that has has profession—that legal sound a maintaining

international investor community. Developing and and Developing community. investor international

that Dubai will remain a key destination for the the for destination key a remain will Dubai that

one part of the equation for those who are hoping hoping are who those for equation the of part one

likely follow. As such, reforming Decree 19 is only only is 19 Decree reforming such, As follow. likely

of law, commercial growth for that country will will country that for growth commercial law, of

borders, globalisation, transparency and the rule rule the and transparency globalisation, borders,

who promote a legal system that values open open values that system legal a promote who

that where there are professionals in a country country a in professionals are there where that

literature discussed in the Introduction—namely Introduction—namely the in discussed literature

the AOL are working relates back to parts of the the of parts to back relates working are AOL the

beyond. The theory under which the leaders of of leaders the which under theory The beyond.

growth as an economic hub for the region and and region the for hub economic an as growth

sophisticated actors who can participate in Dubai’s Dubai’s in participate can who actors sophisticated

and train students and lawyers to be globally globally be to lawyers and students train and

the DIFC Courts before it—has been to educate educate to been it—has before Courts DIFC the Thus, it is clear that the goal of the AOL—and AOL—and the of goal the that clear is it Thus, 111 in [the] ADGM.’ statutes oncivilmatters are alsomade applicable well-established English a wide rangingset of directly applicable in[the] ADGM.Inaddition, equity) law (includingthe rules andprinciples of Regulations2015. Those common make English Law English Regulations by of the Application and commercial law in[the] ADGMisprovided the civil [t]he foundation of ... [Furthermore], ‘broadly judicialsystem modelled onthe English Courts are: iia ota fthe DIFC’s. similar to that of Courts’ (ADGM)were built within acampus noting that in2015the ‘Abu DhabiGlobalMarket their own. It isworth commercialglobal courts of to consider whether they too shouldestablish jurisdictions—both within andoutside the UAE— DIFCCourts experimentThe hasspawned other WHAT LIES AHEAD IMPLICATIONS: THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS 21 20 These ADGM These High Court in2015. which established its forum under the Singapore Justice Hwang’s home jurisdiction, Singapore, commercial court that hassprung-up inChief thereThen hasbeen another international are with the DIFCCourts. and what the parallels, similarities, anddifferences interesting to see how the ADGMCourts develop Zealand. Scotland, HongKong, Australia andNew have worked injurisdictions includingEngland, Alongside Lord Hope are seven other judges who contemplating doingthe same—including salwe,jdeadMme fParliament.as alawyer, judgeandMember of experience inthe UK hisdecades of because of has been seen asanoteworthy appointment Justice, whichLord David Hope sits asthe Chief the Courts are impressive. Right Honourable The level, Appeal of islimited. But the personnel of Instance orCourt First from either the Court of judgments posted ontheir website, number of ADGMCourts areThe relatively new andthe in Sydney.) posting, she wasarespected private practitioner the New South Wales Supreme Court. (Before that CEOandPrincipal Registrar of the position of She hailsfrom Australia where she previously held is LindaFitz-Alan who wasappointed in2015. 23 AdteRgsrro the ADGMCourts Andthe Registrar of 24 Asthe years progress, it willbe 25 Other jurisdictions are 22

jurisdictions.’ to secure speaking commonlawdifficult inEnglish relying oncivillaw remedies that ‘canbe quite commercial ‘global business’ with the ease of of employing the lingua franca has the benefits of isthat theory suchThe acombined approach whilein English usingDutch procedural law. (AIFCC). With the former, the planisto operate and the both the Netherlands Commercial Court opening of sisfrtCara n he Justice, andChief Chairman as its first from the UKservingwill have Woolf Lord Harry h muto cases they see comingbefore them. the amount of ofbe substantively oradversely interms affected, older, more established commercial courts will hard to believe that given their reputation, the Hong Kong andNew South Wales? It seems New York), the Supreme London, Court of of (US), New York (i.e. the commercial division courts that have existed inplaces such asDelaware might there be onthe longer-standing commercial these developments, what impactWith allof Kazakhstan. being developed), France, the Netherlands and their own commercialinternational courts of in Australia, Belgium, China (with three Eurasia.’ its type in commercialto runthe first court of ‘will be joined by [from eight others the UK] Conclusion Astana International Financial Centre Court Astana International 29 26 27 Indeed, 2018willmark the official Asfor the AIFCC,interestingly it 28 andhe

its own citizens leading the way. situation, with administer its own judicialaffairs remain strongly prosper independent, and,inthis balance must be struck sothat the Emirate can there isafeeling amongsome that abetter values andwelcomes those from other countries, sovereignty. While the Dubaigovernmentrespects, this position, it isultimately amatter of in support of Courts shouldhave Emiratis incharge. For those being inexistence for well over adecade the as this argument goes, it isonlynatural that after AOL) onthe civil andcommonlaw. Therefore, and who have received training (often from the individuals who sophisticated are internationally professions within Dubaitoday have within them andjudicialsystem. Furthermore, both the legal the Dubaicourt to be part andparcel of that Dubai,andhasajudiciary issupposed of Emirate, issubject to the governance structure by Emiratis. After all,the DIFCiswithin the that the time hascome for the Courts to be led departure aswell. There are those who believe the DIFCCourts, Mark Beer, hasannounced his Executive ofJustice Sir David Chief Steel. The Justice Chief HwangandDeputy both Chief of developments. 2018 willmark the retirement important consider another set of Then What might this new competition mean for them? Yet canthe same be saidfor the DIFCCourts?

113 Mark Beer, RegistrarGeneralofDIFCCourts play out, aswell asfor lessons that they canapply the events inDubaito see how developments will their own commercial courts are astutely watching contemplating establishing Jurisdictions Courts? the DIFC So to reiterate, what then isthe future of and foreign arbitralawards. foreign judgments recognition andenforcement of UAE has signed—especially asit relates to the to its commitment onthose protocols to which the investors international thatDubai will stay true assurance to andthe necessary independence Additionally, judges from abroad provide judicial is essential for there to be stability inthe system. intimately commercial familiarwith English law reputed,highly experienced professionals who are commercial courts continue with to be staffed advocatesThese claimthat having Dubai’s global recover from financialcrisis. the 2008–2009global not to forget that Dubaihasonlyrecently begun to According to this perspective, it isalsoimportant respecteda globally institution. to establish andconsolidate the DIFCCourts into cooperatively with the Dubaigovernment inorder haveFurthermore, these actors sought to work process, they were, andcontinue to be, invited. Instead, from the start andthroughout the entered Dubaiinaneffort to exert domination. the DIFCCourts never foreign professionals of served inits judiciary. More specifically, the (mainly Arabic-speaking countries) who have from other jurisdictions had judges andstaff aswell.stakeholders To begin, Dubaihaslong from notjustforeigners but from various Not surprisingly, there isacountertothisargument— Conclusion local

simply have to wait andsee. be fullycompleted. For now, therefore, we will regarding the DIFCCourts, cannot yet this story what exactly willtranspire over the next few years this institution. Otherwise put, until we know of becomes what future hurdles willlikelydetermine torelevantstakeholders—respond existing and follow. How the Courts—and the other important, over the years. Andnew ones certainly are to have been various challenges that have emerged course, aswe have seen, thereinto the future. Of has been done todate does not continue well that work good the allof would be unfortunate if the Courts clearly deserve commendation, and it whoframers imagined andboldlyestablished to their own respective contexts. To be sure, the

115 HE Justice Ali Shamis Al Madhani (UAE), Justice Roger Giles (Australia), former Deputy Chief Justice Sir David Steel (England and Wales), HE Justice Omar Juma Al Muhairi (UAE), Chief Justice Michael Hwang SC (Singapore), former Deputy Chief Justice John Chadwick (England and Wales), Justice Tun Zaki bin Azmi (Malaysia), Justice Sir Jeremy Cooke (England and Wales), Justice Sir Richard Field (England and Wales) and HE Justice Shamlan Al Sawalehi (UAE). 119

NOTES INTRODUCTION

1 See author interview 5 See id at 498. (For from the publisher, Juris, from with Sir Anthony Evans, first further references and Krishnan and Purohit, supra Chief Justice of the DIFC footnotes, see original article.) note 4 at 499. (For further Courts, Nov. 1, 2017. In references and footnotes, see addition, at the end of 1998, original article.) the IMF produced a report 6 See id. (For further that confirmed the UAE’s references and footnotes, see desire to bolster ‘[d]evelop- original article.) 9 The discussion in ments in the [n]on-oil [s]ector.’ this paragraph and the next See International Monetary is excerpted from Jayanth K. Fund, United Arab Emirates: 7 See Mark F. Massoud, Krishnan and Kunle Recent Economic Develop- International Arbitration and Ajagbe, Legal Activism in the ments, IMF Staff Country Judicial Politics in Authoritarian Face of Political Challenges: The Report No. 98/134, 1998, at States, 39 LAW & SOCIAL Nigerian Case, 42 JOURNAL 18-26 (describing the various INQUIRY 1, 6 (2014) OF THE LEGAL initiatives that the government (discussing the means by which PROFESSION 197 (2018). planned on taking.) https:// a government would attempt For citations, see e.g., www.imf.org/external/pubs/ to align its economic interests RANDALL PEERENBOOM, ft/scr/1998/cr98134.pdf. with those of its foreign CHINA’S LONG MARCH investors to mitigate any TOWARD RULE OF LAW risk factors associated with (2002); RANDALL 2 See Alejandro investment). PEERENBOOM, JUDICIAL Carballo, The Law of the Dubai INDEPENDENCE IN CHINA International Financial Centre: (2010); TAMIR MOUSTAFA, Common Law Oasis or Mirage 8 See id citing YVES THE STRUGGLE FOR within the UAE, 21 ARAB LAW DEZALAY & BRYANT G. CONSTITUTIONAL POWER: QUARTERLY 91, 94 (2007). GARTH, DEALING IN LAW, POLITICS, AND VIRTUE: INTERNATIONAL ECONOMIC DEVELOPMENT COMMERCIAL IN EGYPT (2007); Kathryn 3 See author interview ARBITRATION AND THE Hendley, Rewriting the Rules with Sir Anthony Evans, CONSTRUCTION OF A of the Game in Russia: The Nov. 1, 2017. TRANSNATIONAL LEGAL Neglected Issue of Demand for ORDER (1996); Andreas Law, 8 EAST EUROPEAN Schedler, Authoritarianism’s Last CONSTITUTIONAL REVIEW 4 Portions of this Line of Defense, 21 JOURNAL 89 (1999); MARK F. MASSOUD, paragraph are excerpted, OF DEMOCRACY, 69 (2010); LAW’S FRAGILE STATE: with permission from the Trari M. Tani, Arbitration in All COLONIAL, AUTHORITAR- publisher, Juris, from: Jayanth Related Disputes to Oil, According IAN, AND HUMANITARIAN K. Krishnan and Priya Purohit, to the New Algerian Hydrocarbons LEGACIES IN SUDAN (2013); A Common Law Court in an Law, 1 INTERNATIONAL JYOTI RAJAH, Uncommon Environment: The JOURNAL OF ARAB AUTHORITARIAN RULE DIFC Judiciary and Global ARBITRATION, 81 (2009). OF LAW: LEGISLATION, Commercial Dispute Resolution, Also see, Tamir Moustafa, DISCOURSE AND 25 AMERICAN REVIEW Law and Courts in Authoritarian LEGITIMACY IN SINGAPORE OF INTERNATIONAL Regimes, 10 ANNUAL REVIEW (2012); ANTHONY PEREIRA, ARBITRATION 497-534, OF LAW AND SOCIAL POLITICAL (IN)JUSTICE: 497 (2014). (For further SCIENCES 281 (2014). AUTHORITARIANISM references and footnotes, Portions of this paragraph AND THE RULE OF LAW IN see original article.) are excerpted, with permission BRAZIL, CHILE, AND James Wright 2015). Networks, inCAUSE Latin AmericanCause-Lawyering 12 (2002). LATIN AMERICANSTATES CONTEST TO TRANSFORM ECONOMISTS, ANDTHE OF PALACE WARS: LAWYERS, INTERNATIONALISATION BRYANT GARTH, THE YVES DEZALAY AND Scheingold, 2001); (eds., Austin Sarat andStuart STATE INAGLOBAL ERA, LAWYERING ANDTHE , inCAUSE Strategy Political Rights asanAlternative Bryant Garth, 11 SCIENCES 2 AND BEHAIVORAL ENCYCLOPEDIA OFSOCIAL the INTERNATIONAL Courts inAuthoritarianStates Also seePeter Solomon, THE RULE OFLAW, 241(2009). Case, 1HAGUE JOURNAL ON Russian The Law:’ and the‘Ruleof Hendley,Kathryn ‘Telephone Law’ 10 THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS REGIMES (2008). AUTHORITARIAN OF COURTS IN BY LAW: THEPOLITICS TAMIR MOUSTAFA, RULE TOM GINSBURG AND PERSPECTIVE (2007); COMPARATIVE APOLITICISM: CHILEIN POLITICS OFJUDICIAL ELISABETH HILBINK,THE ARGENTINA (2005);

Stephen Meili, See Stephen See Yves Dezalay and See id nd Investing inHuman Investing at allcites;alsosee edition (ed.,

Law and Law

, in

Scheingold, 2001). (eds., Austin Sarat andStuart STATE IN AGLOBAL ERA, LAWYERING ANDTHE NIGERIA (2007)221. IN AFRICA:LESSONSFROM CHALLENGES FORLAWYERS OKO, PROBLEMS AND CHINA JOURNAL 111(2008). Public-Interest Lawyering, 59THE of Authoritarian State:BuildingaCulture (Rights Protection) Lawyering inan Fu andRichard Cullen, AMBIVALENCE (2013);Hualing A STUDY INPOLITICAL LITIGATION INCHINA: STERN, ENVIRONMENTAL WORK (2016);RACHEL E. POLITICS OFLAWYERS AT DEFENSE INCHINA: THE HALLIDAY, CRIMINAL SIDA LIUANDTERENCEC. important work onChina,see REVIEW 1(2006).For other at Work, 40LAW &SOCIETY an Obstacle to LawyersJustice: Chinese as Law Practice of Michelson, The SOCIOLOGY 352(2007);Ethan Transition from Socialism Institutional ContinuityinChina’s Lawyers, Political Embeddedness, and 15 14 13 PHILIP C.S. LEWIS, LAWYERS (1988); RICHARDL.ABELAND COMMON LAW WORLD LAWYERS INSOCIETY: THE ABEL ANDPHILIPC.S. LEWIS, quandaries. See e.g., RICHARDL. lawyers who facevarious typesof classicsontheroles of set of C.S. Lewishave amulti-volume

OKECHUKWU See OKECHUKWU See EthanMichelson, Richard AbelandPhilip , 115AM.J. Weiquan

TION-OF-LAWYERS-IN-CON loads/2014/07/THE-PROTEC themainevent/wp-content/up yersconflictandtransition.org/ Crisis, Dec.2016,https://law- of Jonathan Porter, Protection The CA-DECEMBER-2016.pdf; SITION-IN-SOUTH-AFRI YERS-CONFLICT-AND-TRAN uploads/2014/07/LAW themainevent/wp-content/ sconflictandtransition.org/ Dec. 2016,https://lawyer Transition: SouthAfrica, Killian, Lawyers, Conflict& pdf; Venitia Govender andRachel CEEDINGS-ENGLISH-FINAL. ING-UNJUST-LEGAL-PRO- uploads/2014/07/BOYCOTT org/themainevent/wp-content/ lawyersconflictandtransition. ceedings, Nov. 2016,https:// Boycotting Pro UnjustLegal - McEvoy, andLouiseMallinder, also seeEmmaCatterall, Kieran lawyersconflictandtransition.org; societies face. www. Seegenerally and riskslawyers intransitioning on thechallenges, opportunities, importantpapers ed inaseriesof South Africa.Hisproject culminat Israel, Palestine, Tunisia, and ing sixcases–Cambodia,Chile, and Transitions Project,’ examin- launched the‘Lawyers, Conflict, 2013, Professor KieranMcEvoy TY: ANOVERVIEW (1995).In LEWIS: LAWYERS INSOCIE L. ABELANDPHILIPC.S. THEORIES (1989);RICHARD IN SOCIETY: COMPARATIVE FLICT-CRISIS.pdf LAW: ANALIENJUSTICE EXPERIENCE WITHFORMAL SIDDIQUE, PAKISTAN’S other contexts, seeOSAMA pressures lawyers facein constraints andcross-cutting Lawyers inConflictand . For similar - -

------Notes relevance tothediscussioninthat itsdirect Chapter 2,becauseof Aof isplacedinAppendix firms 20 19 18 17 16 REVIEW 66(1995). Cuba Practice inSocialist Legal of Negotiation Citizens andtheSocialistState: Raymond J. Michalowski, SELECTED ESSAYS (2000); AUTHORITY ININDONESIA: AND POLITICAL LEV, LEGALEVOLUTION JOURNAL 421(2013);DANIEL INTERNATIONAL LAW WISCONSIN Lawyering inBangladesh Social Justice to Justice: A Tale of (2005); CynthiaFarid, STATE, AND LEGALREFORM RUSSIA: LAWYERS, THE DEFENDING RIGHTSIN (2013); PAMELA A.JORDAN, by thepublisher, Juris. 4 at 499-500.Permission provided Krishnan andPurohit, supra draw pagesfrom uponexcerpted publisher, Juris. 4. Permission provided by the Krishnan andPurohit, supra draw pagesfrom uponexcerpted tion-in-the-difc-2/. ae/2008/10/01/dispute-resolu- 2008, https://www.difccourts. Evans speech, dated Oct.1, listingof The , 29LAW &SOCIETY See id thisparagraph Parts of chapterThis will See SirAnthony

at 500-501.

, 31 New PathsNew these Between

note note

Purohit, supra by initiallawyers contacted. based onrecommendations made experienced lawyers were selected ‘snowballing’ whereby several social sciencemethodof A. There wasalsoreliance onthe of there wasconsultation withseveral wasconductedand biographies their an examination of the lawyers selectedfor interviews, theexperience leveldetermine of 2018.To done tothat table asof theupdating that hasbeen of because A now listsonly60firms in2014,Appendix were 70firms chapter. Alsonote, that while there fthe DIFC Courts of and GrowthDevelopment, Establishment,The CHAPTER ONE RESOLUTION (2016)387-438. JOURNAL OFDISPUTE and theGlobalFinancialCrisis, DubaiWorldResolution: The Tribunal Matrix forAn Innovative Dispute Krishnan andHarold Koster, uploads/2008/04/diac.pdf. dubaichamber.com/wp-content/ Arbitration Centre, http://www. 2004. SeeDubaiInternational into theinstitutionitisnow, in Arbitration, andthenevolved Commercial Conciliation and first in1994astheCentre for 23 22 21

thesources listedinAppendix See Jayanth K. See Krishnanand DIACThe wascreated note4.

pdf. tent/uploads/2015/12/aevan. londonarbitrators.net/wp-con- Anthony Evans (2009),https:// about/difc-authority. Website, https://www.difc.ae/ 4 3 2 1 8 7 6 5 2017 andNov. 2,2017. with SirAnthony Evans, Nov. 1, Anthony Evans, Nov. 1,2017. and author interview with Sir comes fromthis paragraph id aevan.pdf. wp-content/uploads/2015/12/ https://londonarbitrators.net/ Sir Anthony Evans (2009), Nov. 1,2017.SeeCVof with Sir Anthony Evans, difccourts.ae/2007/04/17/17- DIFC Courts, https://www. the the Inauguration of DIFC Courts Speech During the Justice of the Chief 2007 —Sir Anthony Evans, 1, 2017.Alsosee 17April with Sir Anthony Evans, Nov. Nov. 1,2017. with Sir Anthony Evans,

See See authorinterviews Information fromInformation Sir See CVof See author interview Author interview See id. See author interview DIFC Authority

121 11 10 9 THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS noted that the Register that 1, 2017.Also, Sir Anthony with Sir Anthony Evans, Nov. sion/?print=print. on-the-occasion-of-his-succes- speech-of-sir-anthony-evans- difccourts.ae/2010/06/16/ June 26,2010,https://www. HisSuccession, casion of Anthony Evans onthe Oc- responsibilities.’) your many just one of have given to the Courts, the unstinting support you opportunity to thankyou for direction. Let me take this completed it under your and craftsmen who have the construction workers, of construction, aswell the skills interest you have taken inits largely due to the personal the whole Justice Centre is this Courtroom andof of contemplated. quality The its founders canhave even greater success than steered the project towards past two years you have inspired over leadership the that by your dedication and say from my own knowledge ‘Dr OmarbinSulaiman, Ican about DrOmar: comment from Sir Anthony courts/?print=print inauguration-of-the-difccourts-speech-during-the- the-chief-justice-of-the-difc- april-2007-sir-anthony-evans-

Author interview Sir See Speech of Id.

(noting a

‘The DIFCCourts andDubai‘The (noting from DrBinHazeem, ARTICLE/310319916/1002 times.com/article/20111031/ 2011, https://www.khaleej- KHALEEJ TIMES, Oct. 11, DIFC Courts English Language 13 12 Apr. 8,2018. from Sir Anthony Evans, mittee - about-courts/court-users-com https://www.difccourts.ae/ al service to allusers.’ See economical andprofession- Courts to provide anefficient, the Committee istoassist the of purpose the Court. The of the DIFCCourts andthe users today and‘isaliaisonbetween Committee, which exists still DIFC Courts Users’ the thought-up the idea of addition, Watherston regulatory framework. In that home jurisdiction’s jurisdiction andwho fell under professionals intheir home those who qualified aslegal this Register wasopen to professions model, andthat the UKdivided legal and others, thereby preserving where there were advocates divided into two categories Watherston established was amna-sultan-al-owais/. fied-workshops/2016-speakers/ thebig5.ae/the-big-5/certi- 26-29, 2018,https://www. Construction Show, Nov. Building&International Big5,29, 2017;alsosee The Amna Sultan AlOwais, Oct.

, andsee correspondence See Author interview with Firms Can Use Firms

Al Owais, Oct. 29,2017. interview with AmnaSultan disputes.’) Also, author resolution to commercial seek swift andeffective even greater choice asthey so successfully developed, with community, which Dubaihas believe it provides the business and from around the world. We businesses bothdomestically supporting investors and Dubai’s commitment to of for justice, andareflection very positive development the community. isa This together for the benefit of and have always worked law,justice andthe rule of Courts share acommitment to aspx. ment/Pages/DepartmentBrief. dubai.gov.ae/en/AboutDepart Website,Affairs http://legal. Legal of Dubai, Department 16 15 14 in BarExecutive Exchange, Adekoya, Oct. 2011, published Lowai Belhoul by Olufunke Jan. 7,2018. Al-Owais to the author, a correspondence from Amna LAD andDrLowai come from and the subsequent ones onthe for this paragraphinformation er-s-court-1.523604. fice-attached-to-dubai-rul- uae/government/executive-of- http://gulfnews.com/news/ GULF NEWS, Nov. 5,2009, Attached tothe Ruler’s Court,

Itriwo Dr See Interview of See OfficeSee Executive Government of Also,

- Notes sibilities.aspx. ment/Pages/RolesandRespon- dubai.gov.ae/en/AboutDepart Responsibilities, in the DIFCCourts. lawyers interested inworking ising, educating, andtraining organ- has taken onthe role of Law, the Academy which of of cussing, inparticular, the work picks-up onthis point by dis- Note, the concludingchapter paragraph, see paragraph, DrLowai.’] Alsofor this of pdf BIC_BEX_Issue_7_Oct_2011. Users/jkrishna/Downloads/ Commission, file:///C:/ Association’s BarIssue BarInternational the Newsletter of 18 17 correspondence from Amna 2/?print=print. Alsosee resolution-in-the-difc- ae/2008/10/01/dispute- https://www.difccourts. in the DIFC,Oct. 2008, Evans, Dispute Resolution Sir Anthony Speech of government.) Nov. 1,2007; who works closely with the well-connected Emirati lawyer Al Tamimi &Company anda Essam AlTamimi, (Partner, Author interview with tom-montagu-smith/. https://xxiv.co.uk/barrister/ for Q.C. Tom Montagu Smith, Evans, Nov. 1,2017;Webpage interview with Sir Anthony the following sources: Author one following it draw upon andthefor this paragraph Lowai,’

[hereinafter ‘interview supra The informationThe Dr See ‘interview of note 16at 2. id http://legal. at Roles and

- judges, Jan. 2,2018. the DIFC’s appointment of Al Owaisto author onthe 21 20 19 an UncommonEnvironment: Purohit, K. KrishnanandPriya publisher, Juris, from: Jayanth from thewith permission are excerpted,paragraph present whenever possible.) parties needed to be physically was crucialandthat judges and courtroom inDubaia formal reason, he believed that having law.’international For this becoming ‘anissue under ‘ludicrous’ andpossibly courtroom inDubaiasbeing judge norlawyer being inthe neither the circumstance of he refers to the possible posing problems. For instance, technological developments about thesenoting hisworry 2/?print=print dispute-resolution-in-the-difc- difccourts.ae/2008/10/01/ Oct. 2008,https://www. Resolution inthe DIFC, Sir Anthony Evans, Dispute by Sir Anthony, see Speech of are taken from aspeech made two Emirati justices. correspondences from the whereby he forwarded the author onMay 17,2018, in an email toinformation Justice this Hwangconfirmed Apr. 8,2018.Also, Chief from Sir Anthony Evans,

A Common Law Court A CommonLaw otoso this Portions of quotationsThese See correspondence (although also

(2007). Alsosee QUARTERLY 91 at 93-94 within the UAE, 21ARABLAW Oasis or MirageCommon Law Financial Centre: International Carballo, 23 22 26 25 24 article.) and footnotes, see original (2014). (For further references ARBITRATION 497-534, 524 OF INTERNATIONAL 25 AMERICANREVIEW Commercial Dispute Resolution, and Global DIFC Judiciary The sion/?print=print. on-the-occasion-of-his-succes- speech-of-sir-anthony-evans- difccourts.ae/2010/06/16/ June 26,2010,https://www. HisSuccession, Occasion of Sir Anthony Evans onthe 918b-00144feab49a. content/5a9390dc-ef2d-11e0- 2011, FINANCIAL TIMES, Oct. 11, Beckons as Recovery Lawsuit Simeon Kerr, Dubai Settles 1, 2017andNov. 2,2017. with Sir Anthony Evans, Nov. from include: author interviews which draw this paragraph https://www.difccourts.ae/ see originalarticle.) references andfootnotes, 501-504. (For further Purohit,

https://www.ft.com/ supra The sourcesThe for See Speech of See DIFCWebsite, See Alejandro See Krishnanand h a fthe Dubai of Law The note 21at id .

123 at 96. 31 30 29 28 27 THE STORY OFTHEDUBAI INTERNATIONAL FINANCIAL CENTRECOURTS and Judicial Officer, Maha Registrar NassirAlNasser, Owais, SCT Judge and Registrar AmnaSultan Al Executive and Co-Chief Registrar General Mark Beer, Shamlan AlSawalehi, Shamis AlMadhani,Justice Al Muhairi,H.E.Justice Ali are: H.E.Justice OmarJuma the Small ClaimsTribunalof courts-structure. courts.ae/about-the-courts/ see its website at the DIFCcourts’ structure, see originalarticle.) ther references andfootnotes, note 21at 502-504. (For fur Krishnan andPurohit, supra publisher, Juris, from: from thewith permission are excerpted,paragraph this cites. Note, portions of Carballo, court-of-first-instance/. see originalarticle.) references andfootnotes, note 21at 502.(For further Krishnan andPurohit, supra publisher, Juris, from: from thewith permission are excerpted,this paragraph

The membersThe For background on See id at allcites. See id Note, portions of supra at both note 25, http://difc-