Claim No: CFI 004/2012
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
Between
| INTERNATIONAL ELECTROMECHANICAL SERVICES CO LLC | Claimant |
| and(1)AL FATTAN ENGINEERING LLC (2) AL FATTAN PROPERTIES LLC | Defendants |
MEMORANDUM OF JUSTICE DAVID WILLIAMS OF 2 APRIL 2012
A. Some matters to be addressed by the parties in their Supplementary Submissions
Without limiting in any way the scope of the submissions, the following should be considered:
1. Which law applies when examining the validit and effectiveness of the the arbitration provision(s) in the 26 November 2008 Agreement; Dubai (
UAE) Law or
DIFC Law?
1
2. Given that the works in question were performed within the DIFC, what is the legal basis for the declarations which the Defendants seek that the
DIFC Courts have no jurisdiction in this matter? Please refer to the relevant DIFC Laws or DIFC Rules relied upon.
3. Article 13 of the DIFC Arbitration Law (DIFC Law No.1 of 2008) provides for stays of
Court actions in matters which are the subject of arbitration agreements in circumstances where the DIFC Courts would otherwise clearly exercise jurisdiction. Article 7 of the same Arbitration Law limits the scope of that provision to cases in which the seat of arbitration is the DIFC. In addition, Article 10 states that in matters governed by the Arbitration Law, no DIFC Courts shall intervene except to the extent so provided in that Law.
(a) These provisions were considered and applied in Justice Sir David Steel's recent judgment in the case of Injazat Capital Limited and Injazat Technology Fund B.S.C. v Denton Wilde Sapte& Co (CFI 019/2010 — Judgment of 6 March 2012). The parties are invited to comment on that Judgment.
(b) Are Rules
4.2(6) and
4.9 of the DIFC Rules of Court (RDC) relevant to the question of whether there is jurisdiction in the present case to grant a stay assuming there is a valid arbitration clause.
(c) What is the relevance, if any, to this case of the fact that the UAE has obligations under the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York 1958)?
4. Cases from other Model Law jurisdictions and from the UK which may possibly be relevant to the question of whether the DIFC Courts has an inherent jurisdiction/residual discretion to grant a stay of the proceedings even if Article 13 of the Arbitration Law (DIFC Law No.1 of 2008) is inapplicable because the case involves a seat of arbitration other than the DIFC include the following:
• The Property People Ltd v Housing Corporation Power Ltd (1999) 14 P.R.N.Z.66 at [25] (attached).
• Carter Holt Harvey Ltd v Genesis Power Ltd [2006] 3 NZLR 794 (High Court of New Zealand) at [34]–[47] and [61] (attached)
•
Ling Ming Case — Hong Kong Court of First Instance March 2012 (
Judge P Ng S.C.) GAR 15 March 2012 (
attached)
• AES UstKamenogorsk Hydropower Plant LLP v UstKamenogorsk Hydropower Plant JSC [2011] EWCA Civ 647.
B. Timetable for Supplementary Submissions
1. Defendants' Submissions to be filed no later than 4pm, 19 April 2012.
2. Claimant's Submissions to be filed no later than 4pm, 3 May 2012.
3. Defendants' Reply Submissions to be filed no later than seven days after filing of Claimant's Submissions.
Issued by:
Amna Al Owais
Deputy Registrar
Date of Issue: 3 April 2012
At: 3pm
1 The attached extract from Williams & Kawharu may assist counsel
