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Appeal No. CA 013/2022

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 APPEAL
BEFORE CHIEF JUSTICE ZAKI AZMI, H.E JUSTICE SHAMLAN AL SAWALEHI AND JUSTICE ROBERT FRENCH

BETWEEN

LEDGER

Appellant/Claimant

and

LEEOR

Respondent/Defendant

JUDGMENT OF THE COURT OF APPEAL

UPON hearing Counsel for the Appellant at the hearing on 14 October 2022

AND UPON reading the submissions and relevant documents on the Court file

IT IS HEREBY ORDERED THAT the Appeal is dismissed.

Issued by:
Ayesha Bin Kalban
Acting Registrar
Date of Issue: 26 October 2022
At: 11am

JUDGMENT

CHIEF JUSTICE ZAKI AZMI, H.E JUSTICE SHAMLAN AL SAWALEHI AND JUSTICE ROBERT FRENCH:

Introduction

1. This is an appeal, heard ex parte, against the judgment of Justice Michael Black in the Court of First Instance refusing an urgent ex parte application by the Appellant for an interim junction against the Respondent to prohibit the Respondent from taking further steps or continuing proceedings which it has instituted in the Dubai Courts of First Instance in Case No. 255 of 2022. The application was heard by Justice Black on 6 October 2022 and His Honour’s Orders refusing the application and his Schedule of Reasons, together with a grant of permission to appeal, were issued on 7 October 2022.¹

2. The Appellant is the developer of Liuft in the Dubai, which comprises the construction of a residential building in Dubai (the “Project”). The Respondent is a main contractor engaged in contracting services and based in Dubai. The dispute arose out of the contract between the parties, which provided for arbitration as the mode of dispute resolution (the “Arbitration Agreement”). The proceedings initiated by the Respondent in the Dubai Courts was said to be in breach of the Arbitration Agreement. For the reasons that follow, the appeal against the refusal of an interim injunction is dismissed.

The Contract between the parties

3. The parties entered into a contract in or about September 2015 (the “Contract”) under which the Appellant agreed to pay the Respondent AED 348,000,000 for the Respondent to execute and complete the Project and remedy defects in it. The parties agreed to incorporate a number of documents in their agreement, including the General Conditions of Contract (International) for Works of Civil Engineering Construction Fourth Edition, reprinted in 1992, with further amendments as prepared by the Federation International des Ingenieurs-Conseils (“FIDIC”). The parties also incorporated Particular Conditions of Contact, which were to override or modify the General Conditions of Contract, as the case may be. The numeration of the Particular Conditions followed that of the General Conditions, thus directing attention to the clauses modified by the Particular Conditions.

4. Clause 5.1 of the Particular Conditions provided:

5. An amendment to the Contract was made on 20 November 2017 with a view to settling delays, time related claims and payments arising from the Contract. The time for completion was extended and the contract price and payment adjusted. Clause 6 of the Amendment provided:

The arbitration provisions of the Contract

6. Clause 67.1 of the General Conditions, which was unmodified by the Particular Conditions provided for an Engineer’s Decision as the first step in settlement of a dispute arising between the parties, which would be final and binding unless one or other of the parties had given notice of intention to commence arbitration of the dispute within a specified time of the decision.

7. Clause 67.2 provided for the parties to attempt to reach an amicable settlement before the commencement of arbitration.

8. Clause 67.3 of the General Conditions provided for arbitration to be conducted “under the rules of Conciliation and Arbitration of the International Chamber of Commerce by one or more arbitrators appointed under such rules.” The unmodified General Conditions did not specify the seat or venue of the arbitration.

9. As modified by the Particular Conditions, clause 67.3 read as follows:

10. Clause 67.4 of the General Conditions was not modified by the Particular Conditions and provided for a case in which there was a failure to comply with a final and binding decision of the Engineer. In that case the failure could be referred to arbitration.

11. A new clause 67.5 was inserted by the Particular Conditions in the Contract between the Parties. It had no equivalent in the General Conditions. It provided:

“The law governing the procedure and administration of any arbitration instituted pursuant to Sub-Clause 67.3 shall be the law of the United Arab Emirates and of Dubai. The language of the arbitration shall be English and the place of arbitration shall be Dubai.”

Procedural History

12. The following procedural history is taken from the Primary Judge’s Reasons for Judgment. It is based upon material provided by the Appellant to His Honour. The Respondent has had no opportunity to accept or dispute this account.

13. On 18 January 2022, the Respondent issued a notice to the Appellant pursuant to clauses 67.1 and 67.2 of the Conditions of Contract in connection with the Respondent’s prior request for an Engineer’s Decision on matters in dispute. The Respondent informed the Appellant of the Engineer’s failure to give notice of the Decision on or before the 84th day after the day on which he received the reference, which was 20 December 2021. By its Notice, the Respondent notified the Appellant of its intention to commence arbitration proceedings against the Appellant. The Respondent requested an amicable settlement meeting with the Appellant pursuant to clause 67.2 of the Conditions of Contract.

14. According to the Appellant, the Respondent did not institute arbitration as foreshadowed but instead, on 14 June 2022, commenced proceedings in the Dubai Court of First Instance in what was designated as Case No. 255 of 2022. The Appellant submitted its defence in those proceedings on 29 June 2022, raising a jurisdictional challenge by reference to the Arbitration Agreement. A further memorandum with supporting documentation was lodged with the Dubai Court of First Instance on 6 July 2022 and a first hearing conducted on 27 July 2022. At that hearing the Respondent submitted a memorandum alleging delay and non-payment of moneys due from the Appellant. The Respondent claimed AED 84,080,856.83 plus interest and costs.

15. On 29 July 2022, the Appellant instituted Part 8 proceedings in the DIFC Court of First Instance (“DIFC-CFI”) in Claim No. CFI-051-2022. It sought a declaration that the Arbitration Agreement, reflected in clauses 67.3 and 67.5 of the Particular Conditions of the Contract with the Respondent, were binding on both parties and that the reference to the DIFC-LCIA Arbitration Centre should be taken to be a reference to the Dubai International Arbitration Centre (“DIAC”). The Appellant also sought a declaration that the seat of arbitration under the Arbitration Agreement is the DIFC, the language is English and the place or venue of arbitration under the Arbitration Agreement is the Emirate of Dubai.

16. A first hearing of the jurisdictional challenge raised by the Appellant in the Dubai Court of First Instance was held on 27 July 2022. That Court was due to give judgment on jurisdiction on 19 September 2022, but instead, according to the Appellant, directed the instruction of an expert.

17. On 26 August 2022, the Respondent issued an application in the DIFC proceedings, CFI 051 2022. It sought a declaration from the DIFC-CFI that it had no jurisdiction to hear the claim or grant the relief sought by the Appellant.

18. The ground of the Respondent’s challenge to the jurisdiction of the DIFC-CFI was that none of the gateways for jurisdiction of the DIFC Courts under Article 5A(1) of the Judicial Authority Law (“JAL”) was applicable. Further, it was contended that even if the seat of the arbitration under the alleged Arbitration Agreement were the DIFC, the DIFC-CFI should not exercise jurisdiction in circumstances where:

19. A witness statement of Hashem Alaidarous was filed by the Appellant in answer to the Respondent’s challenge to the DIFC Courts’ jurisdiction to hear the Part 8 Claim initiated by the Appellant. Part of that statement appears to have been directed to an argument that the Respondent was precluded from disputing the jurisdiction of the DIFC-CFI because it had not made an application to that effect within the period specified in Rule 12.4 — see RDC 12.5(1). In any event, the Appellant argued that the terms of the Contract and, in particular, clauses 67.3 and 67.5 meant that the parties intended and agreed to refer disputes to the DIFC-LCIA Arbitration Centre with a three member panel provided that conditions precedent were met. The governing procedure and administration was to be that of the UAE and of Dubai. The place of arbitration was to be Dubai. Prima facie there was an Arbitration Agreement.

20. The Appellant invoked Article 5(A)(1)(e) of the JAL which conferred on the Court of First Instance exclusive jurisdiction to hear and determine:

“(e) any claim or action over which the Courts have jurisdiction in accordance with DIFC Laws and Regulations.”

The argument advanced by the Appellant in the DIFC-CFI thereafter focussed on characterisation of clause 67.5 as effectively designating DIFC as the seat of the arbitration.

21. On 1 September 2022, the Appellant made an application to the Judicial Tribunal of the Dubai Courts and DIFC Courts (the “Joint Judicial Committee” or “JJC”) seeking a stay of the proceedings commenced before the Dubai Courts and the DIFC Courts pending determination by the JJC of the conflict.

22. The Appellant sought a declaration that the DIFC Courts are the competent courts to hear the case and an order that the Dubai Courts cease entertaining Case No. 100 of 2022. As at the date of this hearing no stay had been ordered.

23. The Appellant applied to the Dubai CFI for an order staying the proceedings in the case in that Court until the JJC had adjudicated upon the jurisdictional conflict.

24. The present proceedings were commenced in the DIFC-CFI on 3 October 2022 with the lodgement by the Appellant of a claim for an anti-suit injunction as final relief and for an ex parte interim anti-suit injunction. The proceedings were designated ARB-016-2022. The application for the interim anti-suit injunction was heard by His Honour Justice Michael Black on 6 October 2022. His Honour made the following orders:

Before turning to His Honour’s reasons for decision it is useful to set out the relevant statutory framework.

Statutory Framework

The DIFC Courts Law No. 10 of 2004

25. Article 19 of the DIFC Courts Law provides for the jurisdiction of the DIFC Court of First Instance:

26. General powers of the Court are set out in Article 32, which provides, inter alia:

Judicial Authority Law Article 5

27. Article 5A of the JAL confers exclusive jurisdiction on the Court of First Instance to hear and determine five classes of case, defined in terms analogous to but not identical with the four classes of case set out in Article 19(1). They include, in Article 5A(1)(e):

“(e) Any claim or action over which the Courts have jurisdiction in accordance with DIFC Laws and DIFC Regulations.”

The DIFC Arbitration Law No 1 of 2008

28. Article 7 of the DIFC Arbitration Law sets out the scope of its application as follows:

29. The term “Arbitration Agreement” is defined in Article 12(1) and includes an arbitration clause in a contract.

30. Article 13 provides:

31. Article 15 provides:

Decree No. 34 of 2021

32. Prior to 14 September 2021, there was in existence a DIFC-LCIA Arbitration Centre with a set of rules applicable to arbitrations conducted under the aegis of that Centre. It was administered by the Dubai International Financial Centre Arbitration Institute.

33. The other relevant arbitral institution is the DIAC, which was established under the name of the Conciliation and Arbitration Centre as an initiative of the Dubai Chamber of Commerce and Industry. It was renamed the Dubai International Arbitration Centre in 2004 pursuant to Decree No. 10 of 2004.

34. On 14 September 2021, His Highness Sheikh Mohammed bin Rashid Al Maktoum, the Ruler of Dubai, issued Decree No. 34 of 2021. By that Decree the Dubai International Financial Centre Arbitration Institute and the Emirates Maritime Arbitration Centre were abolished. By Article 5, the property, employees, lists of arbitrators, conciliators, experts and members of the abolished Centres were transferred to the DIAC. Article 6 provided, inter alia:

“a. All agreements to resort to arbitration at the Abolished Arbitration Centres, concluded by the effective date of this Decree, are hereby deemed valid. The DIAC shall replace the Abolished Arbitration Centres in considering and determining all Disputes arising out of the said agreements unless otherwise agreed by the parties thereto.”

And in Article 7 under the heading “Competent Court” the Decree provided:

“As of the date on which this Decree comes into force, the Dubai Courts and the DIFC Courts shall, in accordance with the respective procedures and standards adopted by them in this respect, continue to consider any claim, application, or appeal relating to any award issued or arbitration measure taken by the Arbitration Tribunals of the DIAC and the Abolished Arbitration Centres.”

The Statute of the DIAC

35. Attached to Decree No. 34 was a new “Statute of the Dubai International Arbitration Centre”. Article 3 provided:

“The DIAC shall be regulated and managed in accordance with the Statute attached hereto.”

36. Article 4 of the Statute entitled “Seat or place of arbitration”, which appeared to use those terms interchangeably, provided, inter alia:

Reasons for decision of the Primary Judge

37. The Primary Judge set out the factual and procedural background leading up to the ex parte application for an interim anti-suit injunction. His Honour also referred to Article 4(b) of the new DIAC statute set out above.

38. His Honour stated the reasons for the Appellant’s application being made without notice to the Respondent in paragraph 18 of his Reasons as follows:

“18. Ledger argues by way of justification for seeking relief without notice that the local courts proceedings have now reached a stage where expert evidence is being sought and Ledger is required to state its claims and defences in the dispute on or before 10 October 2022. Ledger fears that there is a real risk that Leeor, may accelerate the expert process or the proceedings in the Dubai Courts if it is put on notice of a pending injunction application and a pending hearing to decide the injunction request in order to frustrate the application. Also, it is said that if notice were to be given of this application, Leeor will likely challenge Ledger’s application and reject this Court’s jurisdiction and tactically prolong the hearing or scheduling of the hearing of the application until after the 10 October 2022 deadline.”

39. His Honour accepted that he had the power to grant an interim anti-suit injunction. There followed consideration of the Appellant’s submissions as to the test to be applied to the exercise of that power. His Honour held that where there was an issue as to the existence of a binding agreement to have disputes determined by arbitration in the DIFC, the applicant had to show, to a high degree of probability, that there was such an agreement which, on an interlocutory basis, could be seen as highly likely to be established. He relied upon a test enunciated by Sir Jeremy Cooke in Hayri International LLC v Hazim Telecom Private Ltd [2016] DIFC ARB-010 (28 February 2017).

40. The question which His Honour posed for himself was whether he was satisfied that there was a high degree of probability that there was a binding arbitration agreement with DIFC as its seat, or if the seat were not DIFC, whether this was an exceptional case in which the Court would nevertheless grant an anti-suit injunction.

41. Satisfaction on either basis would establish a serious issue to be tried on whether the Respondent was in breach of the Arbitration Agreement and the balance of convenience would favour the grant of an interim injunction for a short period to enable full argument to be presented to the Court.

42. The Appellant’s case, as His Honour characterised it, was that the words “the place of the arbitration shall be Dubai” in clause 67.5 of the Contract referred to the venue of the arbitration and not to its seat. If that construction were correct, then the Contract would be silent as to seat and Article 4(b) of the DIAC Statute would apply to designate DIFC as the seat.

43. His Honour could not find a high degree of probability that those words referred to venue rather than seat. Clause 67.5 of the Particular Conditions of the Contract was a bespoke provision. It specified the law of the Arbitration Agreement as the Law of the United Arab Emirates and of Dubai. That could not realistically be interpreted as anything other than UAE Federal Law as modified or applied in Dubai. His Honour provisionally regarded the clause as a carefully drafted clause seeking to provide the essential elements necessary for an effective arbitration agreement.

44. His Honour did not finally decide the interpretive issue. He did not, in the circumstances of the application, need to decide it. He was, however, of the firm view that, at a minimum, it was at least as likely that “place” in Article 67.5 of the Contract’s Particular Conditions, referred to seat as it did to venue. It could not be said that there was a high degree of probability of a binding Arbitration Agreement with DIFC as its seat. He could not therefore grant an anti-suit injunction on that basis, even assuming that he was satisfied that the Respondent was in breach of the Arbitration Agreement.

45. His Honour considered the fall-back position adopted by the Appellant. That was that if the Respondent were in breach of the Arbitration Agreement and the seat were Dubai outside the DIFC, the DIFC-CFI could nevertheless grant an anti-suit injunction. His Honour said “[i]n my judgment the answer is in the negative – I can see nothing exceptional about this case.”²

46. His Honour observed that the DIFC Courts could not interfere simply because a party was dissatisfied with the procedures in the Dubai Courts. On the assumption that the seat were Dubai, that would have been the parties’ choice. If that had been their choice they could not complain that the procedures of the supervisory court in the chosen jurisdiction had not turned out to their satisfaction.

47. His Honour also found positive reasons against the exercise of the discretion to grant an anti-suit injunction if DIFC were not the seat. If the Respondent were not a party to a DIFC seated arbitration it seemed unlikely that a DIFC Court would have jurisdiction over it. There were no DIFC links in relation to applicable law or subject matter. This was a domestic non-DIFC Dubai case. In any event, the Courts of Dubai were seized of the case and it was not for the DIFC-CFI to interfere with their procedures by injuncting a litigant. His Honour said “rather their procedures are to be treated with comity and respect, as Sir Jeremy stated in Brookfield.”³ Moreover, the issue of jurisdiction was pending before the Dubai Court. His Honour considered it inappropriate for the DIFC-CFI to second guess that decision. The Appellant would have rights of appeal in a Dubai Court.

48. Finally, if as appeared to be the case, the meaning of the Arbitration Agreement was to be determined under Federal Law and Dubai Law, the Dubai Courts were the more appropriate and natural forum to interpret the clause as the court of the seat, especially when considering jurisdiction.

Permission to appeal

49. His Honour, in dismissing the application for an interim injunction, granted permission to appeal. That was not because he considered that the appeal had a realistic prospect of success, but that because there were “other compelling reasons for the appeal to be heard”. That was “to enable the Court of Appeal to give guidance on the interpretation of Decree 34 and on the test to be applied in granting anti-suit injunctions in arbitration matters where there is a dispute as to the identity of the seat.” ⁴

The Appellant’s submissions

50. The Appellant in its Skeleton Argument set out the background to the present proceedings. It pointed out that the Respondent’s claim in the Dubai Courts’ proceedings against the Appellant was for AED 84,080,856.83 plus interest. The Appellant’s serious difficulty was that it had a counterclaim, including a counterclaim for the sum of AED 34,800,000 based on liquidated damages under the contract for delays and a counterclaim for defects which, if filed with the Dubai Court appointed expert, would render the Appellant’s unresolved jurisdictional challenge redundant as the Appellant would be taken to have unequivocally submitted to the jurisdiction of the local Dubai Courts.⁵

51. The procedural background explained by the Appellant was that it was due to state its position on the merits of the Respondent’s claim in the Dubai Courts to the sole expert (an engineer) appointed by that Court by 10 October 2022. However, the expert panel had been extended to three members at the Respondent’s request in conjunction with its application to widen its claims to include extension of time and promulgation costs. The Appellant will shortly await the constitution and initiation of the process by the three-member panel of experts and will, at that point, have to state its position, including on the counterclaim.

52. The Appellant’s argument then went to the legal merits of His Honour’s approach to refusing the grant of the interim injunction. It first contended that the Arbitration Agreement had made no reference to “seat” or “legal place” of the arbitration. However, the parties had agreed to resolve their disputes by the DIFC-LCIA Arbitration Centre and agreed to its Rules. Article 16 of the DIFC-LCIA Rules, effective as of January 2021, was said to be applicable. That Article provided, inter alia, in 16.2 that, in default of agreement, the seat of the arbitration shall be the DIFC, unless and until the arbitral tribunal orders otherwise. It was said to be clear on any view that the DIFC-LCIA Rules provided the default seat of any arbitration agreement that was silent on the “seat (or legal place) of their arbitration” shall be the DIFC.

53. The Appellant submitted that reference to “place of arbitration shall be Dubai” in clause 67.5 of the Particular Conditions of Contract, was a reference to the physical location of the arbitration only. Argument was advanced in support of that proposition. His Honour was said to have erred in considering that the seat could not be said, with a high degree of probability, to be the DIFC. The Appellant argued that the applicable Rules to the arbitration chosen by the parties clearly indicated that the default seat was the DIFC.

54. The submissions then went on to deal with the test to be applied at an interlocutory stage in relation to the seat of arbitration in circumstances where the seat was disputed. The Appellant cited Transfield Shipping Inc v Chiping Xinfa Huayu Alumina Co Ltd [2009] EWHC 3629 (QB) and Sir Jeremy Cooke’s decision in Hayri International. Justice Black was said to have applied the correct test, but applied it incorrectly. The Appellant cited passages from the judgment of Sir Jeremy in Hayri International, in particular paragraphs 2 and 3 of that judgment. It is unnecessary to repeat them here. The Appellant also cited passages from the judgment of Sir Jeremy in the return hearing in Hayri on 9 March 2017.

55. The Appellant submitted that the reference to the DIFC-LCIA Rules in the arbitration clause in the present case was determinative of the matter to a high degree of probability if not certainty that the seat is DIFC.

56. The Appellant referred to Decree No. 34 of 2021 and submitted that the position under the DIFC-LCIA Rules had been maintained and enshrined within the Statute of the DIAC attached to the Decree. This Court was invited, by reference to the Skeleton Argument at first instance, to conclude that Decree No. 34 of 2021 distinguished, within Article 4(1) of the DIAC Statute, between legal place and place, “legal place” being the seat of arbitration and “place of arbitration” being its venue.

57. The second ground of the Appellant’s argument went to the question whether the Court should grant an interim injunction even if the seat were not the DIFC. This argument proceeded on the premise that the Court had accepted that there was an agreement binding the parties to resolve their dispute by arbitration. Justice Black had concluded that this was not an issue as his focus was on the seat of arbitration.

58. Brookfield Multiplex v DIFC Investments [2016] DIFC CFI 020 was cited. Sir Jeremy Cooke in that case had refused an injunction because the purpose of proceedings in the Dubai Courts seeking the appointment of an expert to investigate and report on building defects, was to obtain evidence consistent with the Arbitration Agreement.

59. Sir Jeremy had said that even if the seat of the arbitration were not the DIFC, the Court would have jurisdiction to grant an anti-suit injunction although it would be an unusual and exceptional case where it did so. His Honour particularly referred to the appropriate respect that the Courts of the two different systems in the Emirate of Dubai must have for each other. This was a point emphasised by Justice Sir John Chadwick in Taleem v National Bonds Corporation CFI-014-2010 at paragraph 18 and by Justice Omar Al Muhairi in Azzam v Deyaar Developments CFI-024-2015 at paragraph 26. Justice Black was said to have erred in concluding that the present case was not an unusual or exceptional case. The Appellant referred to the particular procedural history and put what, in summary, were the following propositions:

60. The Appellant referred to the prejudice to which it is exposed. There is a significant claim in the local Dubai Courts of AED 84,080,856.83. The Dubai Courts, having engaged technical experts to consider the merits of the claim, the Appellant is put in an impossible position where it has to either engage in the proceedings to defend that claim in the Dubai Courts, including filing a potential counterclaim or forego defending the claim and counterclaim in order to maintain its jurisdictional challenge.

The ex parte character of the application

61. The application before the DIFC-CFI was brought without notice to the Respondent. The Primary Judge set out the reasons that the Appellant brought the application without notice, but does not appear to have made any express finding as to the sufficiency of those reasons.

62. Ex parte procedures are not unusual but should always be regarded as exceptional. They involve a departure, even though it may be temporary, from the general requirement of procedural fairness. As a general principle, no order adverse to a party’s property, liberty or any other interests should be made without that party first having an opportunity to be heard. The party to be affected must have the right to test and/or rebut evidence relied upon by the party seeking the order and to make submissions on matters of fact and law. It is, of course, well established that ex parte interlocutory injunctive relief is available in order to ensure that the rights of the moving party are not defeated by extra-curial actions of the party to be affected. Thus, Anton Piller orders and freezing orders are often sought ex parte where notice to the affected party would be likely to result in the destruction of evidence or the concealment or dissipation of assets. In such cases where an ex parte hearing is granted, the court seeks to mitigate the deficit in procedural fairness by requiring an early return date at which the appellant will have to justify continuation or renewal of the injunction. But even in those categories of case in which short-term ex parte injunctions are sought, the courts have long had the power to require that notice of the application should be given to the party effected before it is heard. The court may decide that the matter is not as urgent as claimed by the moving party or that the subject matter of the application, be it assets or evidence, would not be at risk if the affected party were to be alerted. It might be that the court would not find the affidavit in support of an ex parte motion “sufficiently positive”.⁶

63. The present case was not a case involving dissipation of assets or destruction of evidence. The premise of the proposition that the CFI should hear the application ex parte seems to have been the apprehension that the Respondent would, if notified, embark upon a tactical use of Dubai Courts’ procedures in order to defeat the Appellant’s jurisdictional challenge in those Courts. That is not a sufficient basis for an application to be made without notice. It also, of course, engages with the larger principle informing the discretion to issue anti-suit injunctions (on notice or otherwise) where it is argued that the court in which the party affected is proceeding will not respect the law which it is obliged to apply and the International Convention to which the UAE is party.

64. That then leads on to the question — what role does this Court of Appeal have on an appeal, brought without notice to the Respondent, in relation to the exercise of a discretion to refuse the grant, without notice, of an interim injunction against the Respondent?

Conclusions on the Appeal

65. The preceding discussion directs attention to the intertwined issues in this case of procedural fairness and judicial comity between the two court systems of Dubai. The merits of the appeal itself can be disposed of briefly because there is so little to be decided.

66. When considering an interim injunction, the views of the judge on the law and the facts going to the merits of the final relief claimed, can never be more than provisional. The final determination of the applicable law and the relevant facts, and the application of the law to the facts as found must await a final hearing in which the issues are agitated before the court by all parties. When the application for an interim injunction is made without notice to the party affected, the absence of notice emphasises starkly the necessarily provisional character of the judge’s views. In granting such an application the judge makes an evaluative and provisional judgment about the strength of the appellant’s case in order to answer the question — is there a serious question to be tried? The judge also considers the balance of convenience. But in the absence of hearing from the affected party, even views about the balance of convenience must be provisional.

67. Given that the Primary Judge applied the correct test to the grant of interim interlocutory relief and applied that test rationally, it is not for this Court to substitute its own provisional views of the law and the facts and its own evaluation for those of the Primary Judge.

68. In granting permission to appeal, His Honour evidently saw an opportunity for this Court “to give guidance on the interpretation of Decree 34 and on the test to be applied in granting anti-suit injunctions in arbitration matters where there is a dispute as to the identity of a seat.”

69. With respect to His Honour however, it is not for this Court to give guidance on anything relating to the substantive law on an appeal without notice to the Respondent of an order made without notice to the Respondent in relation to an application for the grant of an interim injunction. It has only heard one side of the case and then only in aid of what could at best be another provisional view about the law.

70. If the matter is to proceed in the DIFC-CFI, it should now proceed to a final hearing on the Appellant’s claim for an anti-suit injunction, a hearing to be conducted on notice to the Respondent. It may be desirable that the hearing be expedited and that the Appellant give appropriate notice of the application to the Dubai Courts. A jurisdictional challenge has been raised in those Courts and is pending. Jurisdiction is a threshold question, because it goes to the authority of the Courts to decide the case which is put before them. It has been raised by the Appellant in those Courts as a threshold question. How that is dealt with is a matter for the Dubai Courts.

71. It is not necessary for this Court to determine the merits of the legal arguments agitated in the DIFC-CFI in relation to the seat of the arbitration or the jurisdiction or powers of the DIFC-CFI. The evaluative and provisional views expressed by His Honour were open to him. Whether or not His Honour would have come to a different view of the law after full argument by both parties at a final hearing of the anti-suit injunction application, is a matter of speculation.

72. The Appeal is dismissed.