May 23, 2017 Arbitration - Orders
Claim No: ARB 010/2016
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 JEREMY COOKE
BETWEEN
HAYRI INTERNATIONAL LLC
Claimant
and
(1) HAZIM TELECOM PRIVATE LIMITED
(2) HAZIM TELECOM LIMITED
Defendants
RULING OF JUSTICE SIR JEREMY COOKE
1. This is a clarificatory ruling which is made pursuant to requests from the lawyers representing both parties in relation to the orders and judgments given by me in this matter, and in particular the judgement of 25 February and the judgment and order of 9 March 2017. The parties agreed that this should be determined on paper in light of their written representations to the Court and exchanges between themselves.
The Clarificatory Ruling
2. As is obvious, the judgment of 25 February 2017 set out the reasoning for the grant of an interim anti-suit injunction of the same date. That was made ex parte and was an injunction which operated “until the return date” which was specified as 7 March 2017. The terms of the judgment make it clear at paragraph 2 that I applied the test for interlocutory injunctions and held that there was a high probability of success for the Claimant in showing that DIFC was the seat of the agreed arbitration and that the rules to be applied to it were those of DIFC-LCIA. Although at paragraph 3 of the judgment I referred to the possibility of the Court exercising a supportive, as opposed to a supervisory, jurisdiction in making an anti-suit injunction, it is also clear that the basis of the injunction granted was that DIFC was the probable seat of the arbitration. There were two routes, on the wording, which both led to the conclusion that DIFC was the seat of the arbitration. That was the basis of the Court granting the interim injunction.
3. I also found in paragraph 5, on overwhelming evidence, that the Defendant had been taking every opportunity to delay the hearing of the substantive dispute, with the commencement of proceedings in Pakistan in breach of what is now accepted to be an agreement to arbitrate and a series of adjournments obtained by them to prevent any hearing of the justification for the proceedings and the interim orders made which were in due course discharged. This now appears to be a continuing feature of the Defendant’s conduct in DIFC.
4. On the return date for the anti- suit injunction in the DIFC, of which the Defendant had ample notice, it was submitted that more time was needed to put forward the Defendant’s case in relation to the grant of the injunction some 10 days earlier. I continued the injunction until an adjourned return date, providing for the matter to come back before the Court after two days to enable counsel to be instructed by the Defendant to argue any point of construction relating to the terms of the arbitration agreement and to put forward any other case as to why the injunction should not be continued or granted on a permanent basis.
5. The Defendant decided not to participate in the hearing on 9 March 2017, although its legal representatives were present. That hearing was treated as the trial of the action for the injunction (see paragraph 8) and I granted a final injunction in the terms set out at paragraph 2 of the order. It was a final order which provided that the Defendant was not to pursue the Pakistan proceedings nor “any other proceedings relating to the Dispute in any court, tribunal or other dispute resolution forum other than arbitration in the DIFC or related proceedings in the DIFC Court.”
6. This and the judgment of the same date made it plain beyond doubt, that the Court had decided that the seat of the arbitration was the DIFC and that the parties were bound by an agreement to arbitrate in the DIFC under DIFC/LCIA Rules and could not arbitrate elsewhere. The ad hoc arbitration, commenced in case the Court should find that there was no binding agreement to arbitrate under DIFC/LCIA Rules, was therefore the subject of the injunction also.
7. When reference is made to the judgment, it can be seen from paragraphs 2-4 that nothing had changed in the view that I had formed as to construction of the arbitration agreement and the seat of the arbitration. I saw nothing to persuade me that my previous conclusion was wrong and said that this was the view that I held on the form of words adopted, as set out in the last sentence of paragraph 2 and in paragraph 3. I also referred to “the only sensible conclusion” as being that the DIFC-LCIA Rules were incorporated and that the DIFC-LCIA was the body responsible for the arbitration, to make it plain that there was only one form of arbitration for which the contract provided. The conclusion was reached on the basis of what was necessary for a final injunction to be granted and is therefore a conclusive determination by the court of the issues in question.
8. It is therefore clear that the Court has made a final decision on the issue of seat and the rules which govern the arbitration.
9. Those orders made by the Court provided for costs to be paid by the Defendant and for interim payment of sums less than those claimed.
Issued by:
Nassir Al Nasser
Judicial Officer
Date of Issue: 23 May 2017
At: 3pm
