Claim No: CFI 013/2016

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

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

 

IN THE COURT OF FIRST INSTANCE

BEFORE JUSTICE SIR RICHARD FIELD

BETWEEN

OGER DUBAI LLC

                                                                                                Claimant

and

 

DAMAN REAL ESTATE CAPITAL PARTNERS LIMITED

                                                                                                Defendant

 

Hearing:            16 May 2016

Counsel:           Sean Brannigan QC instructed by Clyde & Co for the Claimant

David Allison QC instructed by Curtis, Mallet-Prevost, Colt & Mosle LLP for the Defendant

Judgment:        16 June 2016


JUDGMENT OF JUSTICE SIR RICHARD FIELD


Summary of Judgment 

In this case, Justice Sir Richard Field orders that the Defendant be wound up in accordance with the requirements of Chapter 5 of the DIFC Insolvency Law and the Insolvency Regulations, with his winding up order being stayed for 7 days to give the Defendant the opportunity to apply to the Court of Appeal for a further stay pending appeal, if so advised.

The Claimant had lodged a petition to wind up the Defendant with the DIFC Courts on 18 April 2016. The Claimant had referred a dispute with the Defendant to arbitration. By an award (“Award”) dated 19 July 2015, a DIAC arbitral Tribunal had awarded the Claimant AED 964,906,637.25. On 29 July 2015 the Defendant applied to the Dubai Courts for an annulment of the award on various grounds including that the Tribunal lacked jurisdiction. On 13 August 2015 the Claimant issued a DIFC Courts claim form seeking recognition and enforcement of the Award.  On 26 September 2015, Sir John Chadwick (then DCJ), granted an ex parte freezing injunction over the Defendant’s assets. The Claimant’s recognition and enforcement application and its application to continue the ex parte freezing injunction granted by Sir John Chadwick were heard by Justice Sir David Steel on 6 and 7 December 2015. Justice Steel concluded that in light of the Defendant’s assurance that a decision of the Dubai Court of First Instance would be available in about three months, the right order to make was that on condition that security for the award inclusive of costs was posted within 21 days, the Claimant’s enforcement application would be adjourned for four months.

Justice Steel’s decision was embodied in an order of the Court issued on 30 December 2015 (the “Enforcement Order”) which provided that if the Defendant did not provide security in respect of satisfaction of the Award in the sum of USD 266,494,203 by 4pm on 29 December 2015 in a form reasonably acceptable to the Claimant, the Award would immediately thereafter and without further order of the Court be deemed and stand as recognised pursuant to Article 43 of the DIFC Arbitration Law. Justice Steel also continued the freezing injunction granted by DCJ Chadwick until further order of the Court.

On 27 January 2016, the Dubai Court of First Instance dismissed the Defendant’s annulment application on the ground that it did not have jurisdiction to entertain it. On 22 December 2016, the Defendant issued an appellant’s notice seeking permission to appeal the Enforcement Order and a stay of that Order. Following a hearing on 19 January 2016, H.E. Justice Omar Al Muhairi on 22 February 2016 dismissed both the application seeking permission to appeal and the stay application. On 3 March 2016, the Defendant issued an application pursuant to Rule 44.179 of the Rules of the DIFC Courts seeking permission to re-open Justice Omar’s dismissal of its applications for permission to appeal the Enforcement Order and for a stay of that order. The application was dismissed by the Chief Justice in a decision issued on 14 June 2016 on the grounds that the Defendant had failed to show that: (i) it was necessary to reopen Justice Omar’s order to avoid real injustice; and (ii) the circumstances were exceptional making it appropriate to reopen the appeal.

On 29 March 2016, the Claimant presented its winding-up petition against the Defendant, based on the Defendant’s inability to pay the Award debt, it having failed to pay that debt following two written demands for payment dated 3 August 2015 and 5 October 2015 and it having admitted through its Counsel in the hearing before Justice Steel on 6 and 7 December 2015 that it was not good for the money owed.

On 11 April 2016, Justice Steel made an interim ex parte order restraining the Claimant from proceeding with its winding-up petition and following an inter parties hearing on 15 April 2016, he made an order dated 20 April 2016 (the “Restraining Order”) restraining the Claimant from advertising a petition to wind up the Defendant until the hearing of the Claimant’s winding-up petition. After the hearing on 16 May 2016 of the Claimant’s petition to wind up the Defendant, on 8 June 2016 the Dubai Court of Appeal dismissed the Defendant’s appeal from the decision of the Dubai Court of First Instance.

Sir Richard Field held that: the effect of the Enforcement Order is not that the Claimant has a right to a winding-up order on the basis of a final and indisputable judgment debt. Instead, the effect of that order is to allow the Claimant to have recourse to such means of execution as are available to enforce its judgment debt and the Claimant must take those means of execution as it finds them. Moreover, so closely are the Articles 50 and 51 of the Insolvency Law based on sections 122 and 123 of the UK Insolvency Act 1986, the practice and procedure of the English courts on winding-up petitions should be broadly applied by the DIFC Courts. In his view, the effect of the decision of the Dubai Court of Appeal, taken together with the decision of the Dubai Court of First Instance is that the jurisdiction point can no longer be regarded as having a realistic prospect of success even if, which is far from clear to the Court, it is open to the Defendant to seek to appeal to the Court of Cassation. The evidence is that the Defendant is unable to pay its debts as they fall due and in those circumstances a winding-up, which by its nature will have regard to the interests of all of the Defendant’s creditors, seems to be an entirely appropriate means of execution. Furthermore, the concerns that led to the making of the freezing order and the evidence provided on disclosure made under that order that certain valuable villas in Dubai are held in the names of third parties, subject to letters of undertaking in favour of the Defendant, indicate that the sooner the present management of the Defendant is displaced in favour of a liquidator who will be an officer of the court, the better.

 This summary is not part of the Judgment and should not be cited as such 

ORDER

UPON considering the Claimant’s petition to wind up the Defendant dated 18 April 2016 and the Skeleton Arguments filed by both parties in respect thereof

AND UPON considering the Defendant’s applications for a stay or the adjournment of the Claimant’s said winding-up petition and for a stay of the order of Justice Sir David Steel dated 30 December 2015 and the Skeleton Arguments filed by both parties in respect thereof

AND UPON considering the orders of Justice Sir David Steel dated 30 December 2015 and 20 April 2016

AND UPON reading the evidence before the Court

AND UPON considering the documents on the Court File

AND UPON hearing Counsel for both the Claimant and the Defendant on 16 May 2016

AND PURSUANT TO Chapter 5 (Compulsory Winding Up) of DIFC Law No. 3 of 2009 (the “Insolvency Law”) and the DIFC Insolvency Regulations (the “Insolvency Regulations”)

IT IS HEREBY ORDERED THAT:

1. The Defendant shall be wound-up in accordance with the Insolvency Law and the Insolvency Regulations and for that purpose Mr Sajjid Haider shall be appointed Liquidator.

2. The Defendant’s applications to dismiss and/or stay and/or adjourn the Claimants’ winding-up petition are dismissed.

3. The Defendant’s application to stay the order of Justice Steel dated 30 December 2015 is dismissed.

4. The order made in paragraph 1 shall be stayed for 7 days from the issue of this order to allow the Defendant, if so advised, to apply to the Court of Appeal for a further stay pending an appeal to that court.

Issued by:

Natasha Bakirci

Assistant Registrar

Date of Issue: 16 June 2016

At: 3pm

JUDGMENT

Background

1.The Claimant referred a dispute with the Defendant to arbitration arising out of the termination by the Defendant of a building contract signed in 2008 which contained an arbitration clause requiring settlement of disputes to be finally settled under the Rules of Arbitration and Conciliation of the Dubai Chamber of Commerce and Industry.

2. By an (amended) award dated 19 July 2015 (the “Award”) a DIAC arbitral Tribunal — Mr Charles Manzoni QC SC, Mr Adrian Cole and Mr John Marrin QC (Chairman) — awarded the Claimant AED 964,906,637.25 (USD 262,559,629.18) made up of sums awarded by way of damages; fees and expenses of the Tribunal and DIAC administrative fees; and legal costs, with simple interest at the rate of EIBOR plus 3% p.a. on any sum unpaid 14 days after the date of the Award.

3. On 29 July 2015, the Defendant applied to the Dubai Courts for an annulment of the Award on various grounds including that the Tribunal lacked jurisdiction.

4. The Dubai Chamber of Commerce (“DICC”) was established in 1975. The Dubai International Arbitration Centre (“DIAC”) was established in 2004. The first set of DIAC Arbitration Rules was ratified and given effect to by Dubai Decree No.11 of 2007. In 2009, those Rules were superseded by a new set of Rules (the “DIAC Rules 2009”) as provided for in Decree No. 58 of 2009. Article 4 of that decree provided:

Rules and By-laws

Article 4.

 (a) The arbitration rules in force at the Centre shall apply to all disputes that are referred to the Centre even if the parties to a dispute agreed to apply the Commercial Conciliation and Arbitration Rules of the Dubai Chamber of Commerce and Industry Number (12) of 1994.

(b) The arbitration rules in force at the Centre shall apply to all disputes that are referred to the Centre even if the parties to a dispute agreed to apply the Commercial Conciliation and Arbitration Rules of the Dubai Chamber of Commerce and Industry No. (12) of 1994.”

5. The Defendant argued before the Tribunal that since the building contract was signed after Dubai Decree No. 11 of 2007 was enacted but before the enactment of Decree No. 58 of 2009, the DIAC Tribunal did not have jurisdiction to decide the dispute.

6. The Tribunal rejected this contention on the ground that Article 4 (a) not only transferred jurisdiction to the DIAC in cases where the contract provides for the DICC Rules to be applied, but operated retrospectively without falling foul of Article 112 of the UAE Constitution[1] in that it was necessary that it should take such effect and such effect was expressly stipulated.

7. In applying to the Dubai Courts for the annulment of the Award, the Defendant contended that the Tribunal had erred in construing Article 4(a) of Decree No 58 of 2009 retroactively so as to confer jurisdiction on the Tribunal. It is also maintained that: (i) the building contract had been signed without authority; (ii) expert witnesses had wrongly been excluded from the hearing when evidence from the factual witnesses was taken; (iii) a prior condition to arbitration had not been satisfied; and (iv) the Tribunal lacked jurisdiction to make the costs order it made in favour of the Claimant.

8. On 13 August 2015, the Claimant issued a Claim Form seeking recognition and enforcement of the Award.

9. On 26 September 2015, Sir John Chadwick DCJ, observing that the Defendant’s conduct “points strongly to the conclusion that it is willing to take whatever course seems to be likely to further its own interests without regard to the ordinary considerations of commercial morality or proper conduct of the arbitration proceedings…”, granted ex parte a freezing injunction over the Defendant’s assets.

10. The Claimant’s recognition and enforcement application and its application to continue the ex parte freezing injunction granted by Sir John Chadwick were heard by Justice Sir David Steel on 6 and 7 December 2015. In resisting the former application, the Defendant relied on the matters canvassed in its annulment application to the Dubai Courts.

11. As he did in A v B (ARB 005/2014), Justice Steel adopted the approach articulated by Gross J in IPCO (Nigeria) Ltd v Nigerian National Petroleum Corp [2005] EWHC 726 (Comm) when considering enforcement of an arbitral award under ss. 101 and 103 of the UK Arbitration Act 1996:

“…the Act does not furnish a threshold test in respect of the grant of an adjournment and the power to order the provision of security in the exercise of the court’s discretion under s.103(5). In my judgment, it would be wrong to read a fetter into this understandably wide discretion (echoing, as it does, Art. VI of the New York Convention). Ordinarily, a number of considerations are likely to be relevant: (i) whether the application before the court in the country of origin is brought bona fide and not simply by way of delaying tactics; (ii) whether the application before the court in the country of origin has at least a real (i.e., realistic) prospect of success … (iii) the extent of the delay occasioned by an adjournment and any resulting prejudice. Beyond such matters, it is probably unwise to generalise; all must depend on the circumstances of the individual case. As it seems to me, the right approach is that of a sliding scale, in any event embodied in the decision of the Court of Appeal in Soleh Boneh v Uganda Govt. [1993] 2 Lloyd’s Rep. 208 in the context of the question of security:

“….two important factors must be considered on such an application, although I do not mean to say that there may not be others. The first is the strength of the argument that the award is invalid, as perceived on a brief consideration by the Court which is asked to enforce the award while proceedings to set it aside are pending elsewhere. If the award is manifestly invalid, there should be an adjournment and no order for security; if it is manifestly valid, there should either be an order for immediate enforcement, or else an order for substantial security. In between there will be various degrees of plausibility in the argument for invalidity; and the Judge must be guided by his preliminary conclusion on the point.

The second point is that the Court must consider the ease or difficulty of enforcement of the award, and whether it will be rendered more difficult…if enforcement is delayed. If that is likely to occur, the case for security is stronger; if, on the other hand, there are and always will be insufficient assets within the jurisdiction, the case for security must necessarily be weakened.””

Per Staughton LJ, at p. 212. See too: Fouchard, at p.982; Dardana v Yukos [2002] EWCA Civ 543; [2003] 2 Lloyd’s Rep. 326 (CA).

12. Justice Steel found that the only contention that had a realistic prospect of success within the Defendant’s annulment application was the jurisdiction point. All the other points were fanciful. In paragraphs 22, 45, 46 and 47 of his judgment delivered on 8 December 2015, he said:

“Not only was the [jurisdiction] point rejected by three respected and experienced arbitrators, Ms Nevin described it as “purely technical and without commercial merit” and that the only justification for raising it was the hope of creating delay and expense. I agree, and, indeed, as the Deputy Chief Justice said, it is entirely consistent with a general policy to frustrate the enforcement of the award by any means.”

“[The Tribunal’s conclusion on the jurisdiction issue] is in accordance with business common sense and in accordance with a purposive reading of the relevant articles and rules.”

“In reaching that conclusion, this distinguished and experienced Tribunal have embarked on a detailed analysis of the issues and the arguments. The Defendant merely proposes to rerun the very same arguments”

“….In the result, despite the fact that the Arbitral Tribunal appeared to have some difficulty in coming to a conclusion on the topic, I regard the prospects of success in pursuing this technical and unmeritorious challenge as, at best, only just overcoming the threshold requirement of having a realistic prospect of success.”

13. In paragraph 56 of his judgment, Justice Steel concluded that in light of the Defendant’s assurance that a decision of the Dubai Court of First Instance would be available in about three months, the right order to make was that on condition that security for the award inclusive of costs was posted within 21 days, the Claimant’s enforcement application would be adjourned for four months.

14. Justice Steel’s decision was embodied in an order of the Court issued on 30 December 2015 (the “Enforcement Order”) which provided that if the Defendant did not provide security in respect of satisfaction of the Award in the sum of USD 266,494,203 by 4pm on 29 December 2015 in a form reasonably acceptable to the Claimant, the Award would immediately thereafter and without further order of the Court be deemed and stand as recognised pursuant to Article 43 of the Arbitration Law and the Claimant shall be at liberty to enforce the Award in the same manner as a judgment or order of the Court pursuant to Article 42 of the Arbitration Law.

15. Justice Steel also continued the freezing injunction granted by DCJ Chadwick until further order of the Court.

16. On 27 January 2016, the Dubai Court of First Instance dismissed the Defendant’s annulment application on the ground that it did not have jurisdiction to entertain it.

17. On 22 December 2016, the Defendant issued an appellant’s notice seeking permission to appeal the Enforcement Order and a stay of that Order.

18. Following a hearing on 19 January 2016, H.E. Justice Omar Al Muhairi on 22 February 2016 dismissed both the application seeking permission to appeal and the stay application.

19. On 3 March 2016, the Defendant issued an application pursuant to Rule 44.179 of the Rules of the DIFC Courts seeking permission to re-open Justice Omar’s dismissal of its applications for permission to appeal the Enforcement Order and for a stay of that order. The application was dismissed by the Chief Justice in a decision issued on 14 June 2016 on the grounds that the Defendant had failed to show that: (i) it was necessary to reopen Justice Omar’s order to avoid real injustice; and (ii) the circumstances were exceptional making it appropriate to reopen the appeal.

20. On 29 March 2016, the Claimant presented its winding-up petition against the Defendant by way of a Part 8 Claim Form. The petition is based on the Defendant’s inability to pay the Award debt, it having failed to pay that debt following two written demands for payment dated 3 August 2015 and 5 October 2015 and it having admitted through its Counsel in the hearing before Justice Steel on 6 and 7 December 2015 that it was not good for the money owed.

21. On 11 April 2016, Justice Steel made an interim ex parte order restraining the Claimant from proceeding with its winding-up petition and following an inter parties hearing on 15 April 2016, he made an order dated 20 April 2016 (the “Restraining Order”) restraining the Claimant from advertising a petition to wind up the Defendant until the hearing of the Claimant’s winding-up petition.

22. After the hearing on 16 May 2016 of the Claimant’s petition to wind up the Defendant, on 8 June 2016 the Dubai Court of Appeal dismissed the Defendant’s appeal from the decision of the Dubai Court of First Instance.

The relevant provisions of the DIFC Insolvency Law No. 3 of 2009 (the “Insolvency Law”)

23. Articles 50 and 51 of the Insolvency Law provide:

“50. Circumstances in which Company may be wound up by the Court

A Company may be wound up by the Court if:

(a) the Company has resolved that the Company be wound up by the Court;

(b) the Company is unable to pay its debts;

(c) at the time at which a moratorium for the Company under Article 9 comes to an end, no voluntary arrangement approved under Part 2 has effect in relation to the Company;

(d) the Court may make such an order pursuant to any provision of or under DIFC Law; or

(e) the Court is of the opinion that it is just and equitable that the Company should be wound

50. Definition of inability to pay debts

(1) A Company is deemed unable to pay its debts:

(a) if a creditor to whom the Company is indebted in a sum exceeding $2,000.00 then due has served on the Company a written demand requiring the Company to pay the sum so due and the Company has for 3 weeks thereafter neglected to pay the sum or to agree terms in relation to its payment to the reasonable satisfaction of the creditor; or

(b)  if execution or other process issued on a judgment, decree or order of any Court in favour of a creditor of the Company is returned unsatisfied in whole or in part; or

(c) if it is proved to the satisfaction of the Court that the Company is unable to pay its debts as they fall due.

(2) A Company is also deemed unable to pay its debts if it is proved to the satisfaction of the Court that the value of the Company’s current assets is less than the amount of its current liabilities, taking into account its contingent and prospective liabilities.”

The parties’ rival contentions

The Claimant’s case

24. It was submitted on behalf of the Claimant that the Enforcement Order, coming into effect as it did following the Defendant’s failure to provide security in the sum of the Award, disentitled the Defendant from arguing that its annulment proceedings in the Dubai Courts precluded the Court from granting the winding-up petition. The effect of the Enforcement Order was that, within the jurisdiction of the DIFC, the resulting judgment debt was final and indisputable.

25. It followed that, since it was common ground that the Defendant could not pay its debts within the meaning and effect of Article 50 of the Insolvency Law, the winding-up petition should be granted.

The Defendant’s case

26. The Defendant argued that the Enforcement Order did not mandate the making of a winding-up order. The question was whether the Court, on the facts before it, should exercise its discretion under Article 50 of the Insolvency Law to order the Defendant’s winding-up.

27. In this connection, the practice and procedure of the English Courts on winding-up petitions was directly applicable in the DIFC Courts on the basis that Articles 50 and 51 of the Insolvency Law are based on sections 122 and 123 of the UK Insolvency Act 1986. Under that practice and procedure, the Court will dismiss a winding-up petition where the debt is genuinely disputed on substantial grounds, viz grounds which are real as opposed to frivolous, that is to say they have a realistic prospect of success; see Turner v The Royal Bank of Scotland [2000] BPIR 683, Re Arena Corporation Ltd [2004] EWCA Civ 371 (at [53]); Abbey National plc v JSF Finance and Currency Exchange Co Ltd [2006] EWCA Civ 328 (at [46]) and Argentum Lex Wealth Management Ltd v Gianotti [2011] EWCA Civ 1341 (at [17]).

28. In this respect, winding-up stands on a footing different from other means of execution. Thus, where a judgment has been obtained and permission to appeal has been granted but there is no stay of execution pending appeal, execution other than by way of winding-up may be available, but not a winding-up order. This is because: (i) winding-up is a class remedy that is usually the death knell of the company; and (ii) winding-up proceedings are unsuited for determining any dispute about the existence of the debt.

29. The Defendant further submitted that the annulment proceedings in the Dubai Courts were based on grounds that were not frivolous but had a realistic prospect of success. This in effect was the conclusion of Justice Steel in deciding: (i) to stay the Claimant’s enforcement and recognition claim for four months on terms that the Defendant provided security in the sum of the Award; and (ii) granting the Restraining Order over to the hearing of the petition. The Dubai Court of First Instance’s decision to reject the annulment application on the ground that it lacked jurisdiction to decide the application was surprising and clearly incorrect. Dubai being the seat of the arbitration, the Dubai Courts plainly had jurisdiction as the appropriate supervisory court to determine the annulment jurisdiction issue.

30. If the Dubai Court of Appeal held that the Dubai Courts had no jurisdiction to review the question of the Tribunal’s jurisdiction, it was accepted that that would be a very relevant factor for the winding-up court when considering whether Justice Steel’s earlier finding that there was a realistic prospect of success remained a good one.

31. In the alternative, the Court should refuse to make a winding-up order on the ground that to do so would be oppressive and unfair given: (i) that the Defendant’s annulment case in the Dubai Courts has a real, as opposed to a fanciful prospect of success; and (ii) the continuation of the freezing injunction. Further, there were other means of execution open to the Claimant short of winding-up the Defendant.

Discussion and Decision

32. In my judgment, the effect of the Enforcement Order is not that the Claimant has a right to a winding-up order on the basis of a final and indisputable judgment debt. Instead, the effect of that order is to allow the Claimant to have recourse to such means of execution as are available to enforce its judgment debt and the Claimant must take those means of execution as it finds them. I am also of the opinion that, so closely are the Articles 50 and 51 of the Insolvency Law based on sections 122 and 123 of the UK Insolvency Act 1986, the practice and procedure of the English courts on winding-up petitions should be broadly applied by the DIFC Courts.

33. The central question therefore is whether the Defendant’s challenge to the Tribunal’s jurisdiction in the Dubai Courts has a realistic prospect of success. In my judgment, the decision of the Dubai Court of Appeal upholding the Court of First Instance’s decision that it lacked jurisdiction to determine the Defendant’s application is a “game changer”. In his judgment given on 8 December 2015, Justice Steel regarded the Defendant’s prospects of success in pursuing this “technical and unmeritorious challenge” as, at best, only just overcoming the threshold requirement of having a realistic prospect of success. In my view, the effect of the decision of the Dubai Court of Appeal, taken together with the decision of the Dubai Court of First Instance is that the jurisdiction point can no longer be regarded as having a realistic prospect of success even if, which is far from clear to the Court, it is open to the Defendant to seek to appeal to the Court of Cassation.

34. I turn then to consider the Defendant’s case that to order a winding-up would be oppressive and unfair. I reject this contention. The evidence is that the Defendant is unable to pay its debts as they fall due and in those circumstances a winding-up, which by its nature will have regard to the interests of all of the Defendant’s creditors, seems to me to be an entirely appropriate means of execution. I also think that the concerns that led to the making of the freezing order and the evidence provided on disclosure made under that order that certain valuable villas in Dubai are held in the names of the third parties, subject to letters of undertaking in favour of the Defendant, indicate that the sooner the present management of the Defendant is displaced in favour of a liquidator who will be an officer of the court, the better.

35. I therefore propose to order that the Defendant be wound up in accordance with the requirements of the Insolvency Law and the Insolvency Regulations.

36. Finally, I consider it appropriate to stay the order winding up the Defendant for 7 days from the date of the order herein to give the Defendant the opportunity to apply to the Court of Appeal for a further stay pending appeal, if so advised. In all the circumstances of this case, there will be no extension of this 7 day period.

Issued by:

Natasha Bakirci

Assistant Registrar

Date of Issue: 16 June 2016

At: 3pm