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“(1) The DIFC Court shall make a referral of these proceedings to the Union Supreme Court pursuant to Article 99(3), 121 and 151 of the UAE Constitution and Article 31 of the Supreme Court Law for it to consider the direct conflict between Article 5(A)(2) of the Judicial Authority Law (Dubai Law No 12 of 2012) and Article 33(5) and 39 of Civil Procedure Law (Federal Law No 42 of 2022).

(2) The proceedings in CFI 098-2021 shall be stayed in accordance with RDC rr 4.2(6) and pursuant to Article 31(4) of the Supreme Court Law until the Union Supreme Court has given judgment on the issue of constitutionality raised.”

“Article 99(3)

The Federal Supreme Court shall have jurisdiction in the following matters:

…

(3) Examination of the constitutionality of laws, legislations and regulations in general, if such request is referred to it by any Court in the country during the examination of a pending case. The aforesaid Court shall be bound to accept the ruling of the Federal Supreme Court rendered in this connection.

Article 121

Without prejudice to the provisions of the preceding Article, the Federation shall have exclusive legislative jurisdiction in the following matters:

Labour relations and social security – real estate and expropriation in the public interest – extradition of criminals – banks – insurance of all kinds – protection of agriculture and animal welfare – major legislations relating to penal law, civil and commercial transactions and company law, procedures before the civil and criminal courts – protection of intellectual, technical and industrial property and copyright – printing and publishing – import of arms and ammunitions except for use by the armed forces or the security forces belonging to any Emirate – other aeronautic affairs which are not within the executive jurisdiction of the Federation – the limitation of territorial waters and regulation of navigation on the high seas – organising the free zone areas – determining the method of creation of such zones and the scope of its exception from the implementation of Federal Laws.

Article 151

The provisions of this Constitution shall prevail over the Constitutions of the Member Emirates of the Federation and the Federal Laws which are issued in accordance with the provisions of this Constitution shall have priority over the legislations, regulations and decisions issued by the authorities of the Emirates. In case of conflict, that part of the inferior legislation which is inconsistent with the superior legislation shall be rendered null and void to the extent that removes the inconsistency. In case of dispute the matter shall be referred to the Federal Supreme Cour for its ruling.”

“Article 31

1 The unconstitutionality claims arising before any court during a law suit considered thereby, shall be referred to the Federal Supreme Court without fees by a reasoned decision issued by the competent court and signed by the President of the competent circuit mentioning the legal provisions to be considered, in case such referral is based on the decision of the court considering the relevant subject matter.

2 In case constitutionality is challenged by any of the litigants of the case and the court considering the subject-matter has accepted such challenge, the court shall determine a deadline to file the law suit before the Federal Supreme Court. In case said deadline has lapsed and the contesting party fails to file a lawsuit, this shall be deemed as an abandonment of the defence thereof.

3 In case the court considering the concerned subject-matter rejects the defence, then the rejection shall be by a justified judgment. The concerned persons may challenge said rejection as well as the judgment pronounced on the subject matter of the lawsuit, before the court deemed competent to consider the challenge to such judgment, in case challenge is possible.

4 The court considering the subject matter of the case shall suspend such case until the Federal Supreme Court decides on the constitutionality thereof. The decision of suspension shall be issued with the referral decision mentioning clause (1) of this Article or after filing the lawsuit within the time-limit determined by the court as mentioned in clause (2) of this Article.”

“Article 33(5)

In cases other than those stipulated in Article (34) and Article (36) to (41) of this Law, the parties may agree to confer jurisdiction on a specific court, in which case jurisdiction shall lie with such court.

Article 39

In disputes related to the claim of the insurance value, jurisdiction shall lie with the court within the circuit of which the domicile of the beneficiary or the location of the insured property is located.”

“Article 5(A)(2)

The Court of First Instance may hear and determine any civil or commercial claims or actions where the parties agree in writing to file such claim or action with it whether before or after the dispute arises provided that such agreement is made pursuant to specific, clear and express provision.”

(a) On 3 May 2023, the Claimant filed the Application supported by the Second Witness Statement of Mr Wakerley in which it sought a referral of the proceedings “to the Union Supreme Court pursuant to Article 99(3) of the UAE Constitution and Article 31 of the Supreme Court Law for it to consider the constitutional implications of the [CA Judgment] that it has jurisdiction to hear [Abnic’s] claim” (the “Application”).

(b) On 7 June 2023, the Respondent filed its evidence in answer in response to the Application supported by Mr Soudgar’s Fifth Witness Statement.

(c) On 7 July 2023, after a series of agreed extensions, the Claimant filed what was said to be its evidence in reply in relation to the Application. In the event, it was not evidence in reply but a new application in which the Claimant confirmed that it had abandoned and was no longer pursuing the orders sought in the original Application.

(d) On 11 July 2023, the Registry confirmed that the Claimant was at liberty to file any application it deemed fit in order to amend its Application.

(e) On 12 July 2023, the Amended Application was filed, supported by Mr Wakerley’s Third Witness Statement. Under the Amended Application the Claimant sought a referral of the “proceedings to the Union Supreme Court pursuant to Article 99(3), 121 and 151 of the UAE Constitution and Article 31 of the Supreme Court Law to consider the direct conflict between Article 5(A)(2) of the Judicial Authority Law … and Article 33(5) and 39 of the Civil Procedural Law ...”

(f) On 31 July 2023, the Sixth Witness Statement of Leonard Omeed Soudgar, a solicitor representing the Respondent was filed, which dealt with the substance of the Amended Application.

“insurance of all kinds;

major legislation relating to the penal, civil and commercial transactions and company law, procedures before the civil and criminal courts;

…

organising the Free Zone areas, determining the method of creation of such Zones and the scope of its exception from the implementation of Federal Laws.”

(a) Whether the Primary Judge erred in finding that the DIFC Court was “the” or “a” competent court to determine the challenge by the parties to a ruling by the Federal Insurance Authority and whether (if the DIFC Court was not “the” or “a” competent court) he therefore erred in concluding that the parties objectively intended the DIFC Court to have jurisdiction over their disputes.

(b) The proper construction of Rules 44.29 and 44.30 of the Rules of the DIFC Courts (the “RDC”) relating to the time for lodging grounds of appeal and skeleton argument.

(1) Article 99(3) of the UAE Constitution makes clear that a referral to the USC must be made “during the examination of a pending case by the court considering the case.” The case before the Court of Appeal has been determined. There is no case pending before it

(2) Article 31(1) of the Supreme Court Law makes clear that any allegation of unconstitutionality must be put fairly and squarely to the court hearing the particular matter before it renders a decision. It is not open to a party to assert after the event and after judgment that an entirely separate and new issue which was not raised before the court hearing the matter, gives rise to an alleged constitutional, such as the alleged conflict between Article 5(A)(2) of the Judicial Authority Law and Article 33(5) and 39 of the Civil Procedure Law which is the subject of the Amended Application.

(3) If the Claimant considered that a constitutional issue was raised, it was incumbent upon it to state that in the application heard by Justice Roger Giles in April 2022, in its application for permission to appeal and on the appeal itself. It failed to do so at any stage.

(4) Article 151 of the UAE Constitution must be read together with Article 99(3). If a question arises as to the priority of laws as contemplated in Article 151, those issues must arise, be disputed and then referred to the USC “during the examination of a pending case”.

“77. The provisions of the Insurance Law create a mechanism under Article 110 for the resolution of disputes between insurers and insureds in a particular set of circumstances. It has a limited application. The application of that mechanism is not expanded beyond Article 110 by general provisions of the Insurance Law in Article 2 or the general regulatory role of the Authority set out in Article 7. Nor is it affected by the power of the Board of the Authority to issue decisions.

78. Article 110 imposes a general and ambulatory obligation on insurance companies to “process … insurance claims according to legislations in force and the provisions of the insurance policies” based on procedures set out in Article 110(1)(a) to (d). 22 of 26

79. A disputed claim may be referred to a committee established by the Authority. Although Article 110 refers to complaints by “the concerned party”, it is clear that that term refers to an insured complainant. The Authority has the “right to ask the Company to provide clarifications” where a dispute has arisen concerning a claim. The “Company” refers to the insurer. The committees created by Insurance Authority Resolution No 33 of 2019 are, according to Article 3(4) of that Resolution, concerned with “the complaints of the insured”. Article 110 creates a dispute resolution mechanism which may be invoked by an insured person. It does not by its terms nor by any necessary implication have a preclusive effect preventing the insurer from seeking legal remedies in relation to disputes arising out of insurance contracts. A straightforward example of such a matter, plainly outside the purview of the Committee process, would be an action for the recovery of an insurance pay-out where it is alleged that the claim was fraudulent. Another possibility might be an action for the recovery of a premium due under an insurance contract. And, as in this case, declaratory relief may be sought that the policy is avoided on the grounds of misrepresentation or failure to make disclosure of a relevant risk.

80. The reference to “competent court of first instance” in Article 110(4) is specifically directed to challenges on the merits of committee decisions. Even if it be the case that the “competent court” is, properly construed, a non-DIFC Court, it has no preclusive operation affecting the jurisdiction of DIFC Courts, a fortiori, where the parties to an insurance contract have agreed that those courts are included in the class of courts having jurisdiction over their disputes. The better view is that the term “competent court” embraces a court having relevant jurisdiction to which the parties have agreed to submit their disputes.

81. The asymmetric nature of the dispute resolution mechanism under Article 110 was said to reflect a public policy choice protective of insured parties. As the present case demonstrates however, insured parties may range from individual consumers to small businesses to large and sophisticated commercial entities. The asymmetry, if anything, militates in favour of a non-preclusive construction of Article 110.

82. There is nothing in the provisions of the Insurance Law which prevents the parties to an insurance contract from agreeing to subject themselves, when in dispute, to the jurisdiction of the courts of the UAE inclusive of the DIFC Courts and without the requirement to pass through a committee process.

83. That said, there may be cases where the institution of proceedings by an insured in one court while earlier proceedings are pending may, if not an abuse of process, warrant a stay of proceedings in the latter jurisdiction in the interests of comity and efficiency. That is not this case. It is not an abuse for an insurer party to seek declaratory relief in a DIFC Court which would not be available through an administrative committee process nor on a challenge to a decision emanating from such a process.

84. The insurer is entitled to pursue its legal remedies in the DIFC unless there is a clear statement of UAE law which denies jurisdiction in such a case to the DIFC Court. There is none.

85. The Appellant has invoked somewhat numinous concepts of context and public policy to support its case against jurisdiction in the DIFC CFI. Neither the Insurance Law nor the Resolution of the Authority establishing the committee system has that effect.”

“53. In order to determine which court is the competent court for the purpose of Article 110(4) the parties will have regard to the provisions of the Civil Procedure Code which allocate jurisdiction between the local courts. By Article 39 of the new Civil Procedure Law (Federal Law No 42 of 2022)

Disputes relating to the application for the insurance value of the court shall be the home of the beneficiary or the place of the insured money.

54. As the Dubai Court of Cassation has observed the reason why the court of the insured is available is “due to observing the side of the claimant on the consideration that he is the weak party who suffered from the insured risk.” In the same case the Court of Cassation has also indicated that “the place of the insured money” means the place where the insured property is located, where the local court is likely to have relevant knowledge and that the domicile of the defendant is another basis of jurisdiction. See Cassation No 113/2022.

55. By virtue of Article 33(5) of the new Civil Procedure Law, Article 39 overrides any agreement of the parties to the courts of a different jurisdiction. If a party brings a claim not contemplated by Article 39 the courts of that jurisdiction will dismiss the claim.”

“18. The Constitution of the UAE is to be found in Law No 1 of 1972. By virtue of Article 121, the Union has exclusive legislative jurisdiction in respect of “Civil and Commercial Transaction Codes … Code of Procedures before the civil courts …”. Pursuant to those powers the Civil Transactions Code was enacted (Federal Law No 5 of 1985) which, by virtue of Art. 21, allocated the making of jurisdictional rules to the forum of the relevant state. Thereafter the Civil Procedure Code (Federal Law No 11 of 1992) was enacted which inter alia deals with matters of jurisdiction, service of proceedings and ratification of arbitration awards.

19. However, by virtue of Federal Law No 8 of 2004, individual emirate states within the UAE were empowered to establish financial free zones. Of particular note are the following Articles:

And at paragraph 27, Justice Sir David Steel said:

In my judgment, perceiving matters against the statutory background outlined above, there is no basis for importing some limitation on the express terms of the DIFXC Courts jurisdiction. The DIFC (and its Court) is in effect exempted from the Commercial and Civil laws of the Union. The State of Dubai is afforded freedom under Law 8 of 2004 to promulgate appropriate legislation. DIFC Law 10 of 2004 included jurisdiction in respect of any application over which the DIFC courts has jurisdiction by virtue of DIFC laws and regulations.” (emphasis in original)