Proceedings of 20th International Business Research Conference
4 - 5 April 2013, Dubai, UAE, ISBN: 978-1-922069-22-1
Consensual Jurisdiction of the DIFC Courts
Damien P. Horigan
The Dubai International Financial Centre (DIFC) is a free zone, or
special economic area, that was established within Dubai less
than a decade ago for wholesale banking and financial services.
The DIFC has its own legal system separate from the rest of the
emirate. This legal system includes a specialized judiciary in the
form of the Dubai International Financial Courts (DIFC Courts).
In late 2011, the jurisdiction of the DIFC Courts was expanded to
include consensual or opt-in jurisdiction. This article will examine
the expansion of the jurisdiction of the DIFC Courts and its
potential impact on businesses in Dubai and beyond.
I. Introduction
Less than a decade ago, Dubai, which is one of the seven emirates that
comprise the United Arab Emirates (UAE), began a bold experiment. The
experiment continues to this day. It started with the creation of an innovative free
zone, or special economic area, for wholesale banking and financial services
encompassing both conventional finance and Islamic finance. The financial free
zone is known as the DIFC or, more formally, the Dubai International Financial
Centre (DIFC, 2013).
Although Dubai had been an important regional port for trade in goods for
decades, until relatively recently, the financial hubs of the Middle East were
found elsewhere. An early hub was Beirut, but various problems including
Lebanon’s long civil war greatly diminished Beirut’s importance (Economist,
2006).
Beirut was increasingly replaced by Bahrain, which became home to numerous
offshore banks. At the time, Bahrain benefited from a Gulf oil boom. Although
Bahrain is itself an oil producer, the island’s oil production has been modest
compared to some of its neighbors (CIA, 2013). As a result, the government long
ago realized the need to diversify Bahrain’s economy. However, political
instability and social unrest during the past few years have begun to diminish
Bahrain's importance to foreign banks and financial institutions (Hamdan, 2011).
Dubai is an oil producer, but its oil production is tiny compared that of to Abu
Dhabi (World Oil, 2010). In fact, Abu Dhabi accounts for most of the UAE’s oil
exports. Accordingly, just as with Bahrain, it became clear that Dubai had to
diversify its economy away from hydrocarbons. A major component in Dubai’s
strategy has been setting up various free zones starting with a fairly traditional
____________________________________
Damien P. Horigan, Associate Professor of Business, American University of Afghanistan, Kabul,
Afghanistan, Email: dhorigan@auaf.edu.af or damienhorigan@yahoo.com
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Proceedings of 20th International Business Research Conference
4 - 5 April 2013, Dubai, UAE, ISBN: 978-1-922069-22-1
foreign trade zone called the Jebel Ali Free Zone that was established near the
artificial harbor in the southern part of the emirate. A series of other free zones
were then established focusing on different industries (Cross Border Legal
Publishing, 2005).
The free zone policy was implemented partly to circumvent federal restrictions on
foreign ownership of businesses in the UAE (Mahmoud, 2008). Typically, the
various free zones allow for complete foreign ownership as well as the full
repatriation of profits and no income taxes. The free zones have proven popular
with foreign investors including multinational corporations. For instance, Dubai
Internet City hosts some of the biggest information technology companies (Dubai
Internet City, 2013).
In light of the success of the various free zones, creating a free zone for banks
and financial institutions was a logical step. Hence, the DIFC was established in
2004. The carefully designed legal and regulatory features of the DIFC are
critical parts of the "soft" infrastructure that helps to set Dubai's financial free
zone apart from other regional financial hubs (Kane, 2013).
Ii. Legal Systems and Legal Pluralism
The biggest difference between the DIFC and Dubai’s various other free zones is
the fact that the DIFC has its own legal system (Al Tamimi, 2008). In other words,
the DIFC is a jurisdiction that, for certain purposes, is separate from that of the
rest of the emirate. Hence, the DIFC can be viewed legally as being a sort of
enclave within the emirate.
Generally, Dubai has a mixed legal system that is based partly on the civil law
tradition of Continental Europe, as transmitted through France and then Egypt,
and partly on Islamic law with Islam being constitutionally recognized as the state
religion of the UAE (Wilson, 2009). In this sense, Dubai is similar to much of the
rest of the Middle East (Mallat, 2009).
The official language of UAE is Arabic (Wilson, 2009). Hence, laws at the federal
(UAE) and local (emirate) levels are written in Arabic. Any English translations of
such laws must be considered as being merely unofficial versions.
However, the DIFC has been designated as a common law jurisdiction with
English law, or strictly speaking "the laws of England and Wales," listed as one of
the sources of law for the DIFC (DIFC Law No. 3 of 2004). The DIFC laws are
written in English. The common law was selected as the basis for the DIFC legal
system to facilitate investment into the DIFC from global organizations in the
fields of banking, finance, and ancillary services.
After all, major financial hubs such as London, New York, Hong Kong, and
Singapore all share the common law heritage. The common law also serves as
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Proceedings of 20th International Business Research Conference
4 - 5 April 2013, Dubai, UAE, ISBN: 978-1-922069-22-1
the basis for the legal systems of certain small jurisdictions that serve as key
offshore banking destinations like Bermuda, the British Virgin Islands, and the
Cayman Islands (CIA, 2013). In other words, despite their individual
characteristics, these various jurisdictions belong to the same legal family that
has its historical roots in England (Rodriguez, 2001).
For purposes of comparative law, Dubai can thus be described as having a high
degree of legal pluralism. The emirate pragmatically draws upon civil law, Islamic
law, and the common law to fulfill various purposes.
Iii. A Tale of Two Judiciaries
The government of Dubai has opted to keep its own local courts rather than
joining the UAE's federal judiciary (Mahmoud, 2008). Actually, Dubai has two
permanent court systems. For the emirate generally, there is a judiciary called
the Dubai Courts (Dubai Courts, 2013). Yet, for the DIFC there is a completely
separate judiciary called the Dubai International Financial Centre Courts
featuring a mixed bench of experienced local judges and eminent foreign jurists
from the United Kingdom and various Commonwealth countries (DIFC Courts,
2013). The Dubai Courts function in Arabic, but the DIFC Courts function in
English.
Temporary courts can also be set up in the emirate. A case in point is the
"Special Tribunal to Decide the Disputes Related to the Settlement of the
Financial Position of Dubai World and its Subsidiaries" that was established in
2009 to deal with claims against a large holding company that controlled many of
Dubai's largest businesses (Special Tribunal Related to Dubai World, 2013).
Likewise, according to a recent story that the Wall Street Journal broke, a
different tribunal was apparently set up quietly in 2011 to deal with a firm known
as Zabeel Investments (Fitch, 2013). Another instance would be that of a special
judicial committee set up to deal with the restructuring of Amlak Finance (Dow
Jones, 2013).
Both the Dubai Courts and the DIFC Courts are courts of Dubai. Decisions of the
DIFC Courts are issued in the name of the Ruler of Dubai i.e. the Emir. This is
an important point because upon first learning of the DIFC Courts some lawyers
mistake the judiciary for being some sort of arbitral body. It should be stressed
here that the DIFC Courts are indeed courts of law.
Adding to the potential for confusion is the fact that there happens to be an
arbitration body based within the free zone. It is called the DIFC-LCIA Arbitration
Centre, which is a joint project between the DIFC and an institution called the
London Court of International Arbitration (DIFC-LCIA Arbitration Centre, 2013).
Moreover, outside of the free zone, Dubai is home to a couple of other active
arbitral bodies namely, the Dubai International Arbitration Centre and the
International Islamic Centre for Reconciliation and Arbitration (DIAC, 2013;
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IICRA, 2013). The former deals with matters such as construction disputes while
the later focuses on disputes involving Islamic banks.
By virtue of the DIFC Courts being a Dubai judiciary, decisions from the DIFC
Courts should be enforceable not only within the free zone itself, but also in the
rest of emirate, and, presumably, anywhere else in the UAE (Al Sawalehi &
Bakirci, 2012). Potentially, decisions from the DIFC Courts could be enforced in
certain other jurisdictions beyond the UAE. For example, earlier this year
representatives from the Judiciary of England and Wales and the DIFC Courts
entered into a memorandum that, while not strictly binding, should still facilitate
the enforcement of judgments from the DIFC Courts in London's Commercial
Court as well as vice versa (Judiciary of England and Wales & DIFC Courts,
2013). Nevertheless, in certain situations, it is worth keeping in mind that it could
actually be easier to enforce an arbitral award overseas than a court judgment. In
this connection, the UAE is a party to a multilateral treaty officially called the
Convention
on the Recognition and Enforcement of Foreign Arbitral Awards that is popularly
known as the New York Convention (UNCITRAL, 2013). Yet, in some countries
even enforcing a foreign arbitral award can be problematic. Therefore,
businesses should consult with counsel before selecting a forum and a governing
law for their contracts.
Here it should be noted that the DIFC Courts merely have what is officially
described as being “civil and commercial jurisdiction" (DIFC Courts, 2013). This
would thus involve cases such as alleged torts or contract disputes connected
with the DIFC. Hence, any criminal cases occurring within the DIFC are
essentially reserved to the Dubai Courts.
Incidentally, there are just two levels at the DIFC Courts in the form of a trial level
called the DIFC Court of First Instance and an appellate level called the DIFC
Court of Appeal (DIFC Courts, 2013). In addition, there is the DIFC Small Claims
Tribunal that deals mostly with employment matters.
Iv. Which One?
Having two legal systems and two court systems existing side-by-side in Dubai
has occasionally been a source of uncertainty. Previously, the DIFC Courts could
only exercise jurisdiction over a case if the matter was clearly connected with the
free zone
(DIFC Law No. 10 of 2004).
Such an unusual situation resulted in speculation by lawyers over the extent of
the connection needed (Punwar, 2009; Bell, 2011; Eversheds, 2011).
Speculation of that sort should now largely be a thing of the past in light of the
expanded jurisdiction of the DIFC Courts, which is discussed below.
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Although, as was previously mentioned, the official language of the UAE is
Arabic, the main language of business in the UAE is actually English (Tristam,
2008). Indeed, because of the large number of foreign workers, the population of
the UAE is quite cosmopolitan (Barrett, 2010).
Contracts involving individuals or businesses in the UAE are often drafted in
English. Moreover, it so happens that many foreign managers and entrepreneurs
simply do not understand Arabic. Realistically, such parties would typically wish
to avoid the Dubai Courts due to linguistic, cultural, or other reasons. Hence, the
DIFC Courts can be viewed as an attractive option to the extent that litigation
might be perceived as being necessary. Of course, in lieu of the courts, the
parties could choice arbitration or some other form of alternative dispute
resolution such as mediation.
V. Expanded Jurisdiction
In late 2011, a law was issued by His Highness Sheikh Mohammed bin Rashid Al
Maktoum acting in his capacity as the Ruler of Dubai (Dubai Law No. 16 of
2011). This law amended some provisions of an earlier law (Dubai Law No. 12 of
2004) in order to expand the jurisdiction of the DIFC Courts. Now parties without
any connection to the DIFC can choose to use the free zone's judiciary (DIFC
Courts, 2011; Lovett & Coates, 2011; Merza, 2011). Indeed, the parties could be
based in other emirates or even beyond the UAE.
The most likely method for consenting to the DIFC Courts would be a forum
selection clause in a contract that designates the DIFC Courts as the forum for
resolving any disputes. In other words, the parties to a contract would give the
DIFC Courts jurisdiction in advance before any dispute arises.
Alternatively, the parties could agree in writing to use the DIFC Courts after a
dispute had arisen. Nevertheless, as many lawyers know, getting parties already
engaged in a dispute to agree to something like that is easier said than done.
There is even a third method. It would involve a case that had been submitted
elsewhere, but which was then dismissed for lack of jurisdiction (Dubai Law No.
16 of 2011).
Any written contract should also have a choice of law clause. This refers to the
substantive law that would govern the contract. Certainly, the parties could
choose DIFC law. However, they could choose another law. Mostly likely that
would be English law.
Michael Hwang, Chief Justice of the DIFC Courts, issued a practice direction to
help clarify the situation (Practice Direction No. 2 of 2012 — Jurisdiction of the
DIFC Courts). With this practice direction, the DIFC Courts provided parties with
suggested jurisdiction clauses. Providing such clauses is reminiscent of the
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model arbitration clauses prepared for use in contracts by various arbitral
institutions.
Something a bit unusual here is the fact that the government of Dubai is actually
inviting foreign parties to use one of its court systems for business disputes that
have no connection with the DIFC, Dubai, or the even UAE. In contrast,
elsewhere in the common law world, courts especially those with crowded
dockets often refuse to hear cases if there is a lack of a significant connection to
the jurisdiction on the grounds of the legal doctrine of forum non conveniens.
This is definitely true of some judges in the United States (Whytock, 2007). So
far, however, the case load at the DIFC Courts, although gradually growing,
remains relatively light (DIFC Courts, 2012). Hence, crowded dockets should not
be a problem at least for the time being.
The government of Dubai might have been inspired to expand the jurisdiction of
the DIFC Courts because of developments in the nearby country of Qatar (Lovett
& Coates, 2011; Merza, 2011). Doha, the capital of Qatar, has its own hub for
banking and finance in the form of the QFC or Qatar Financial Centre (QFCA,
2013). The QFC is slightly younger than its Dubai counterpart, and it is
sometimes viewed as a regional competitor. Be that as it may, like the DIFC, the
QFC has its own English common law judiciary, which is now known as the Qatar
International Court and Dispute Resolution Centre (QICDRC, 2013).
Perhaps to a lesser extent, Dubai might have also been responding to the
establishment of a new arbitral institution in Bahrain (Lovett & Coates, 2011).
This body, a joint project between the government of Bahrain and the American
Arbitration Association, is known as the Bahrain Chamber for Dispute Resolution
(BCDR-AAA, 2013).
Vi. Potential Impact on Businesses
The expanded jurisdiction provides businesses with the option to avoid the using
either the Dubai Courts or the other Arabic language judiciaries in the UAE when
there is a need to litigate. Indeed, businesses from outside of the UAE can now
bring cases in the DIFC Courts.
Hypothetically, a business dispute originating from Oman between, say, an
American company and an Omani company could potentially be litigated in the
DIFC Courts even though neither side is based in the UAE. This is despite the
fact such a dispute would have no connection to the DIFC. Such a scenario is
possible provided that the two sides opt-in to the jurisdiction of the DIFC Courts.
Given that so many contracts in the Middle East are written in English rather than
Arabic, it would make sense for an English language court system to interpret
such contracts when disputes arise. Doing so would eliminate the need for
translations of contracts and other documents into Arabic. The process of
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Proceedings of 20th International Business Research Conference
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translation is potentially expensive, slow, and prone to inaccuracies in light of the
vast linguistic differences between Arabic and English (Greene, 2005). In this
connection, there are also differences in the legal traditions normally associated
with the respective languages (Mallat, 2009). Likewise, one could avoid having to
use interpreters during court proceedings assuming all the witnesses can
understand English.
Many businesses in the UAE have a history of using international commercial
arbitration to resolve certain types of disputes (Shepherd 2010; Blanke & Nassif,
2011). Such arbitral proceedings are often conducted in English although some
arbitrations in the UAE are conducted in Arabic. Quite a few of the arbitrators
active in the region, be they lawyers, engineers, or other professionals, are native
speakers of English. While some businesses might prefer to continue to use
arbitration for various reasons, having an English language option for litigation in
the region is beneficial. Certainly, there are advantages as well as disadvantages
to using either arbitration or litigation (Kreindler, 2006; Gould & Russell, 2007).
So, it is nice to have a choice.
Besides the language factor, there is the issue of substantive law. Many business
people from various countries are at least somewhat familiar with the general
principles of the common law. Moreover, frequently their lawyers would have
been trained overseas in a common law jurisdiction. Indeed, either English law or
New York state law is often selected as the governing law for international
business transactions (Hoffman, 2008). Hence, having a common law court
based in Dubai can be quite attractive to the business community.
Potentially, the DIFC Courts might be viewed as being a "neutral" venue that two
sides could compromise upon. In the above hypothetical, the location of the DIFC
would be convenient to the Omani side because Dubai is geographically close to
Oman while the legal system of the DIFC might be attractive to the American
side because of certain similarities to the American legal system.
VII. Conclusion
It has been less than two years since the DIFC Courts were permitted to exercise
consensual jurisdiction. Arguably, it is too early to tell what the full impact of the
expanded jurisdiction will be. It clearly takes time for new contracts to be drafted,
for old contracts to be redrafted, and for disputes to arise that might eventually be
heard by the DIFC Courts. Furthermore, some lawyers might prefer to wait to see
how often judgments from the DIFC Courts are enforced elsewhere.
Nonetheless, there has been considerable interest among business people and
lawyers in using the free zone's judiciary for non-DIFC cases. In fact, even before
the end of 2011, the first non-DIFC case was already filed in the DIFC Courts,
and it was ultimately settled (DIFC Courts, 2012).
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Certainly, gaining consensual jurisdiction is a milestone in the history of the DIFC
Courts. It should benefit not only the free zone, but also the business community
in Dubai and beyond.
VIII. Sources
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Judgments and Orders outside the DIFC. Dubai: DIFC Courts. This guide is
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the DIFC. Text available on the DIFC website.
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DIFC Law No. 4 of 2004, DIFC Court Law. Text available on the DIFC website.
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Judiciary of England and Wales & DIFC Courts. 2013. 'Memorandum of
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Special Tribunal Related
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Ix. About the Author
Damien Horigan is an American lawyer and business professor. Although
currently based in Kabul, he previously worked in Dubai.
X. Disclaimer
This conference paper is merely of a general nature and thus should not be
taken as offering legal advice for specific situations. The author accepts no
responsibility whatsoever for any errors or omissions.
The opinions expressed are those of the author.
Copyright © Damien P. Horigan, 2013
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