Address by Chief Justice Sir Anthony Evans
DUBAI SOCIETY OF CONSTRUCTION LAWYERS
A comprehensive service
Two years ago you were kind enough to allow me to speak to you about the start-up of the DIFC Courts and their plans for their future. I am delighted to be with you again and must thank you for what is, in the circumstances, an extremely generous invitation. I can begin by reporting to you, as I did to H.E. Dr. Omar bin Sulaiman, the Governor of the DIFC, in July of this year, that the DIFC Courts now are fully operational. They are fully equipped and ready to handle all cases that are brought to them and which lie within their jurisdiction. Also, the DIFC/LCIA Arbitration Centre has been launched and the DIFC Arbitration Law has been completely revised.
There is a lot of ground to cover. I shall begin with the Courts but my theme throughout will be that the DIFC now offers a comprehensive Disputes Resolution Service through the Courts and the Arbitration Centre. These operate independently of all other DIFC bodies – the Regulatory body, DFSA, and the executive authority, DIFCA, among them – and of each other.
I have already referred to the extent of the Courts’ jurisdiction, which leads directly to what may be, I know, one of the main questions you have in mind, whether you use the lawyers’ word – jurisdiction, meaning the extent of the Courts’ power to hear cases and to give judgments which will be respected by other Courts – or if you ask, more colloquially, what kinds of cases will the Courts be willing and able to hear?
So I will say something about where we are now, then go on to talk about, even more colloquially, what are we here for? First, however, a brief description of how the Courts have been established under the Laws of Dubai since 2004.
In that year, the UAE Government permitted each of the Emirates, including Dubai, to set up an International Financial Centre, which could be governed by its own laws. Dubai was well prepared; the Government and its advisers had already drafted Laws creating the DIFC under Dubai Law. These Laws were promptly enacted by His Highness the late Sheikh Maktoum bin Rashid Al Maktoum, the then Ruler of Dubai (Laws Nos.9 and 12 of 2004), and the Ruler appointed His Highness Sheikh Mohammed bin Rashid Al Maktoum, who was then the Crown Prince and is now the Ruler of Dubai, to be the first President of the DIFC. As President, he brought into force a number of DIFC Laws which had already been prepared in draft, including the DIFC Courts Law (DIFC Law No.10 of 2004).
The DIFC, as so established, consists of three bodies: the DIFC Authority (DIFCA), which carries out the physical development of the site and exercises what may be called executive (and some other, including legislative) functions; the Dubai Financial Services Authority (DFSA), to act as the Regulatory Body, also with some legislative functions; and the Judicial Authority, to consist of the DIFC Courts and to provide a dispute resolution service. The Courts are expressly guaranteed their judicial independence, and they are directly funded by the Government of Dubai, not by the DIFC.
Dubai Law No.9 established the DIFC Judicial Authority (Article 8), and Article 8(2) defines the outlines of the Courts’ jurisdiction:
“(2)…………… the Centre’s Courts shall have exclusive jurisdiction to hear and determine any claims in which the Centre, the Centre Establishments or any of the Centre’s Bodies is a party to and also to hear and determine any dispute, arising out of any transaction carried out in the Centre or an incident which took place therein….”
Dubai Law No.12 of 2004 was entitled “… in respect of The Judicial Authority at Dubai International Financial Centre”. It established the Courts, or rather two Courts, which it described as “Courts of two ranks; The Court of First Instance (one Judge) and the Court of Appeal (three Judges)” (Article 3 sub-sections (2) and (3)). It also provided for the appointment of Judges (Article 3) and for enforcing their judgments (Article 7). Under the heading “Governing Law” (Article 6), it provided thus:
“The Courts shall apply the Centre Laws and Regulations, except where the parties to the dispute have explicitly agreed that another law shall govern such dispute, provided that such law does not conflict with the public policy and public morals.”
DIFC Laws then enacted under the authority given by Dubai Law No. 9 included the DIFC Court Law (DIFC Law no.10 of 2004). This contained detailed provisions regarding the Constitution of the DIFC Courts, its management and composition, and importantly, its jurisdiction, to which I shall return later. Its Governing Law was set out in Article 30:
“(1) in exercising its powers and functions, the DIFC Courts shall apply:(a) the Judicial Authority Law;(b) DIFC Law or any legislation made under it;(c) the Rules of Court; or(d) such law as is agreed by the parties.”
Incidentally, another of the DIFC Laws enacted in 2004 was the Arbitration Law (DIFC Law No. 8 of 2004), but this was still-born and it has been completely repealed and replaced by the new Arbitration Law, DIFC Law No.1 of 2008.
Where are we now?
From the start, in early 2005, establishing the new Courts presented four main challenges. These were, in no special order, securing premises, recruiting staff, introducing Rules of Court to regulate its procedures, and appointing Judges.
The DIFC Authority, as you know, has done an incredible job – incredible by any standards other than those of modern Dubai, perhaps of realising mostly in glass and concrete the vision of those who planned an International Financial Centre for Dubai. Less than five years ago, in February 2004, the DIFC site of about 110 acres was literally ring-fenced and it was bare desert sand. When it is completed, probably next year, the Centre will house more than 40 high-rise buildings, including offices, hotels, apartments, restaurants and many shops, including those on the world’s longest shopping mall, as well as the Gate Building, already an icon of modern Dubai, and it will have a resident and working population of more than 40,000 people. So it was no surprise that within less than two years from inception, by the end of 2006, the single storey building in which we are sitting was ready for occupation, housing the DIFC Courts, the proposed DIFC arbitration service, and this Conference Centre. This provides facilities, not just for gatherings like this one, but also for the Courts and Court hearings, for the DIFC/LCIA Arbitration Centre and for arbitration hearings, for the parties to negotiate and for mediation proceedings whenever the chances of an agreed settlement will be improved with the intervention of a neutral mediator. These facilities are literally under one roof although, of course, they must and do operate independently of each other. This, I believe as a matter of principle, reflects the correct modern state-of-the-art approach to dispute resolution, of commercial disputes, in general.
State-of-the-art certainly describes both the layout of the Courts’ section of the building, which includes the Courts’ Office and rooms for the Registrar, his staff and for Judges and the fitting out of the Courtroom, which I hope you have seen. If not, you are most welcome to inspect it at any time. So we are reasonably confident that we have premises which are second-to-none, and we are most grateful for the immense care that was taken by DIFCA in designing and constructing them, and for the priority we were given.
One feature I should mention is the wired-in video conferencing facility. We have used this, not just to bring absent witnesses into the Courtroom, but also, on occasion, the Judge himself. A feature of the Courts, of course, is that some of the Judges are not resident in Dubai.
Professionally speaking, I am based in London, and the Deputy Chief Justice, Michael Hwang SC, in Singapore. An urgent application may be made, which does not give us time to fly into Dubai; or an interlocutory application may not justify the cost of a special visit. Both he and I, therefore, have appeared in the Dubai Courtroom as, what has nicely been called, ‘virtual judges’, courtesy of the video cameras and not always reliable sound transmission. This has worked well in those particular circumstances, but I doubt whether it would be satisfactory for trial hearings, where the Judge has to be able to observe witnesses as they give evidence, as well as the parties’ representatives (and, I would add, the Judge often finds it instructive and helpful to see for himself how the parties, even individuals seated at the rear of the courtroom, react to evidence as it is given: but that is another story). And it is essential, in my view, that it should be absolutely clear that the proceedings are taking place in the courtroom in Dubai. So we emphasise that the Order made at the end of the hearing is made there, lest that become an issue under international law, and our policy is to require that the parties’ representatives are present there in person. It can be tempting for one or both parties to suggest that the expense of bringing counsel to Dubai can be avoided if counsel too can make a virtual appearance, by video. But quite apart from the ludicrous situation that might arise if neither the Judge nor counsel was actually present in the courtroom, but were beamed in from, possibly, the same foreign city, whether London or Singapore or anywhere else, my present feeling is that the principle is all-important. The Court sits in Dubai, even if before a ‘virtual judge’.
In fact, this was the last piece of the jigsaw which fell into place. We started with the huge benefit of having the services of John Watherston CBE, former Registrar of the Judicial Committee of the Privy Council (until now, the final Court of Appeal, in London, from British colonies around the world) as the Consultant Registrar. But he was non-resident, and the search for a permanent Registrar, locally based, began. Until that was complete, his Deputy, Sunita Johar, became the Acting Registrar, and as I am sure some of you will know, from dealings with her, she was hugely successful in setting up the Courts’ administration and taking it forward until this last summer. Then, in June 2008, Mark Beer took over, as the first permanent holder of the post of Registrar, which is how, as I have put it, the jigsaw became complete. He is a qualified English solicitor, and has experience both of private practice and of commerce here in Dubai, as well as abroad. Under his leadership, I am sure that the Courts’ staff will handle an increasing case load supremely well, and you will have no reason to doubt their ability to do so.
The Registrar, of course, has judicial functions also, and I shall refer to these below.
(3) Rules of Court
The Rules of the DIFC Courts came into operation in 2007. They are based on and closely resemble the relevant parts of the Civil Procedure Rules, which now govern proceedings in the Commercial Court in London – known to most of us as Lord Woolf’s Rules, and greatly respected as such – and they were settled by English counsel familiar with the drafting and implementation of the CPR. We are making provision for the RDC to be kept up to date, both by annual supplements and by relevant amendments whenever the need for them appears, even in the course of the year, and as cases are decided and experience grows, to publish commentaries upon them. We hope – no, I hope – no, it is my clear policy not to let the commentaries become so swamped with notes and comments that we have anything like a re-creation of the notoriously weighty White Book on our hands, or rather, in your hands.
So I come to the Judges, to be known as Justices, of whom eight have been appointed, so far. If I tell you that of the six non-resident judges, four come from four common-law jurisdictions, including England and Wales, and that the remaining two are resident in Dubai, you will appreciate, I hope, that we are determined that the Courts shall develop the rules of the common law, as they have been applied in commercial cases, with an international flavour, in the cosmopolitan setting of the DIFC. The three other jurisdictions are Singapore, Malaysia and New Zealand. Future appointments, I hope, will come from Australia, Hong Kong and from Canada, the USA and Scotland also.
Apart from myself and the Deputy Chief Justice, the other non-resident Judges are Justice David Williams, a former Justice of Appeal in New Zealand and now an active and busy international arbitrator; Justice Sir Anthony Colman, who retired last year as the senior Judge sitting in the Commercial and Admiralty Court in London; Justice Tan Sri Siti Norma Yaakob, former Chief Judge of Malaya (and before you tell me that the modern State is Malaysia, let me remind you that the mainland is still known as Malaya, and our distinguished colleague was Chief Judge of that territory); and Justice Sir John Chadwick, who retired from the Court of Appeal earlier this year and who has an international reputation for his expertise in both company and insolvency law, including a widely publicised and successful foray into the criminal courts when he led for the prosecution in the Guinness take-over case.
Next, the two resident Judges, who have been right at the heart of the Courts’ development to date, and will continue to be so. They are H.E. Justice Omar Al Muhairi and H.E. Justice Ali Al Madhani. Both were senior and experienced Judges of the Dubai Courts. They were appointed to the DIFC Courts early on in 2005 and, in order to learn and gain experience of the common law, they attended courses at SOAS, part of the University of London, which were specially arranged for them. Back in Dubai, they became Judges of the Small Claims Tribunal – of which, more anon – and they have been spectacularly successful in dealing with the cases that have come before them. In January 2008 they were sworn in by His Highness Sheikh Mohammed bin Rashid Al Maktoum, the Ruler of Dubai, as Judges of the DIFC Courts. They are now actively engaged in acquiring the practical experience which is needed for them to sit regularly as such. Every new case that comes in is assigned to one of them, so that he can familiarise itself with it, assist the trial Judge where necessary, and possibly deal with urgent interlocutory issues if the trial Judge is not available to hear them. I hope that there will be opportunities for them to sit as members of the Court of Appeal, alongside non-resident Justices, so gaining practical experience of common law procedures. This, combined with their existing judicial expertise, will qualify them to sit as Judges of the Court of First Instance also.
(5) Four other matters
It is, of course, essential that a Court which aims to provide a judicial service to the commercial community is able to deal promptly and, if necessary, relatively informally with short-notice Applications for temporary Orders which may be urgently required and sometimes are asked for without notice to the party against whom the Order is sought. The most common examples are Freezing Orders, the modern equivalent of the Mareva Injunction which Lord Denning famously originated in the case of that name. Such Applications are only permitted when there is insufficient time to notify the other party or other good reason to justify departing from the cardinal rule that natural justice requires both parties to be heard before any Order is made. But when they are, the DIFC Courts will handle them as follows. Notice of the Application should be given to the Courts Office or out-of-hours to the Registrar or Deputy Registrar, and it will be heard as soon as the circumstances require, by a non-resident Judge, either by means of a video hearing or in person if he (or she) is in Dubai or can get there in time. Until these arrangements can be made, the Registrar and/or the Resident Judges have power to make a Temporary Order with the primary object of preserving the status quo.
What are we here for?
The short answer is that the Courts and the Arbitration Centre are here to provide first-class Disputes Resolution Services in all cases that come before them: efficient and cost-effective procedures, and a fair and just outcome, with judicial independence guaranteed. The important question, however, for present purposes is how wide is the jurisdiction? What cases may be brought before the Court?
Under the existing law, the jurisdiction is defined by Article 5(A) of the Judicial Authority Law, Dubai Law No. 12 of 2004. This translates into English as –
The Jurisdiction of the Courts
The Court of First Instance
Without prejudice to paragraph 2 of this Article, the Court of First Instance shall have exclusive jurisdiction over:• civil or commercial cases and disputes involving the Centre or any of the Centre’s Bodies or any of the Centre’s Establishments.• civil or commercial cases and disputes arising from or related to a contract that has been executed or a transaction that has been concluded, in whole or in part, in the Centre or an incident that has occurred in the Centre.• objections filed against decisions made by the Centre’s Bodies.• any application over which the Courts have jurisdiction in accordance with the Centre’s Laws and Regulations;
Parties may agree to submit to the jurisdiction of any other court in respect of the matters listed under paragraphs (a), (b) and (d) of this Article.”
The Jurisdiction of the Court of First Instance (and therefore the substantive jurisdiction of the Court of Appeal) is defined in Article 19 of the DIFC Courts Law (No. 10 of 2004) by reference to Article 5(A) of the Judicial Authority Law but in slightly different words (maybe it is only a difference in translation) –
[as (a) above]• civil or commercial cases and disputes arising from or related to a contract concluded or a transaction concluded by any of the Centre’s Establishments or the Centre’s Bodies;• civil or commercial cases and disputes arising from or related to a contract that has been executed or a transaction that has been concluded, in whole or in part, in the Centre or an incident that has occurred in the Centre [difference from Article 5(A) ( b ) underlined] ;
[ as (d) above].”
The jurisdiction, therefore, is part-territorial and partly based on the identity of at least one of the parties and on the subject-matter of the action. “Centre’s Bodies” is defined in Article 2 of Law No. 2, meaning the three bodies which together constitute the DIFC, together with any further statutory creations. “Centre Establishments” is also defined, in the widest possible terms:
“Any entity or business duly established or carrying on business in the Centre, including any Licensed Establishments.”
So far as the personal jurisdiction is concerned, therefore, there is scope for argument as to whether the Court has jurisdiction in cases where a relevant person is a party, regardless of the subject matter of the action and whether or not the territorial limit applies. As regards the territorial definition, the different wording of Articles 5(A) (b) and Article 19(1)(c) may or may not be significant; this issue may have to be ruled upon by the Court. But in general terms the overall position is clear; the Courts only have jurisdiction in cases which are DIFC-related in one way or another. When they do have jurisdiction, the jurisdiction is “exclusive” i.e. to the exclusion of the Dubai Courts, which would otherwise have jurisdiction on territorial and maybe personal grounds.
There is an interesting cross-reference here to Dubai Law No.3 of 1992, the Law Establishing the Courts in the Emirate of Dubai. Article 23 reads:
“The Court of First Instance is a Civil or Sharia Court with jurisdiction over all actions and matters except where this or any other law has granted exclusive jurisdiction to a special tribunal or judicial committee.”
The DIFC Courts are not a “special tribunal or judicial committee”. In fact, the Laws empower the Chief Justice to set up Tribunals of the DIFC Courts itself (DIFC Court Law, DIFC Law No.10 of 2004, Article 14(3)). But the reference to “exclusive” jurisdiction in the Judicial Authority Law reflects the use of the same word in Article 23 of the 1992 Law, which established the Courts of Dubai.
Finally, I should ask you to note that the territorial limits have been extended outside the 110 acre site of the Centre itself, and they may be extended further under the powers given by the Federal Government under Cabinet Resolution No.28 of 2007. So far, I understand, these extensions have been limited to individual properties where Centre-registered companies and firms carry on business outside the Centre itself.
Having identified some issues which may arise for decision, if the meaning and scope of the existing Laws is ever brought up for decision by the Courts – and there may well be others – you will understand, I’m sure, why I cannot go further and speculate what the Courts’ decision may be. What I can do is express the hope that any difficulties may be removed if and when the Laws are amended.
Sir Anthony Evans
Chief Justice of the DIFC Courts