July 10, 2013 Court of First Instance -Judgments,Judgments
Claim No: CFI 014/2010
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 DEPUTY CHIEF JUSTICE SIR ANTHONY COLMAN
BETWEEN
TALEEM PJSC
and
(1) NATIONAL BONDS CORPORATION PJSC
(2) DEYAAR DEVELOPMENT PJSC
Defendants
Hearing: 12 May 2013
Counsel: Tom Montagu-Smith (Hogan Lovells LLP) for the Claimant
Nicholas Tse (Brown Rudnick) for the First Defendant
Mr Robin Knowles QC (Alfridi and Angel) for the Second Defendant
Judgment: 12 May 2013
JUDGMENT OF DEPUTY CHIEF JUSTICE SIR ANTHONY COLMAN
1. The DIFC Courts is no ordinary court. It is no ordinary court particularly because it is a common law court administering justice within a circumscribed jurisdiction: covering civil and commercial matters only, within a wider jurisdiction exercised by the non-DIFC Dubai Courts in the UAE. The non-DIFC Dubai Courts administer local law which is derived from the civil law system. It is not a common law system and different principles apply both in relation to substantive civil law and in relation to the adducing of evidence.
2. The issues that have arisen on this case management conference go fundamentally to the circumstances in which the DIFC Courts will receive principles of non-DIFC law which it may hold to be material to issues before it. It is clear from the submissions by the three parties now before me that there are very substantial differences of view as to firstly whether DIFC law or non-DIFC Dubai law should apply to the issues which have arisen on the pleadings and secondly, whether, if non-DIFC law is to apply, then what that law is and how the principles are to be applied to the facts.
3. The question that is particularly pertinent for present purposes is how the issues as to what the non-DIFC law is should be resolved by this court and in particular whether expert evidence should be called to establish what those principles may be. Arguments have been raised touching upon both the issue of accurate translation of non-DIFC law and also upon more fundamental matters going to the issues which will be before this court, that is to say the fundamental substantive principles of law.
4. In the course of argument the question has arisen, inevitably, as to whether, before the DIFC Courts, foreign law has to be proved as a fact and, if it has to be proved as a fact, whether non-DIFC Dubai law should come within the range of what is regarded as foreign law to the effect that it cannot be put before the DIFC Courts unless it is proved. There is no doubt, in my judgment, that if one were dealing in this court with the law of a country in, for example, western Europe, let us say French law, and that was pertinent to the issues which had to be determined by the court, it would be necessary, applying general principles of English commercial law, to prove that law as a question of fact. I do not think there was any really serious issue between the parties as to that proposition. The peculiarity which arises, however, in this case is whether non-DIFC Dubai law should be treated in the same way as a real and genuine foreign law and which has to be proved in exactly the same way as it would have to be proved if it were, for example, French law.
5. The difference between the two situations is important because the method of proving a truly foreign law in the English procedural system and under the English law rules of evidence which, absent provisions to the contrary in this jurisdiction, should apply, involves adducing evidence either from experts before the court or by reference to the writings of experts, such as professors of law, as to what the relevant principles may be. The normal way of proving that foreign law and the principles applicable is by calling evidence. That involves an expensive exercise which is usually one which involves not only the writing of experts’ reports but also the meeting of experts and the production of lists of issues of foreign law upon which the experts fail to agree, together with an explanation as to why they do not agree.
6. In this court the matters which fall to be tried at this level, that is to say the Court of First Instance, may be heard either by a judge whose training is in the Common Law, that is to say the basic principles of English commercial law and English evidence, or by a judge whose training is in Dubai non-DIFC law as well as DIFC law. The multi-cultural judge, if I may describe the latter in those words, is in a completely different position from the judge who has had his training in the English common law system when it comes to deciding issues of law which are essentially issues of non- DIFC Dubai law. He will not be drawing upon opinions and expressions of view as to what the law is by witnesses in order to provide him with knowledge of the relevant legal principles; he will instead be drawing upon his own legal and judicial training supported by reference to the relevant texts and writings.
7. For these reasons it seems to me that the DIFC Courts should take a realistic and practical approach to the problem to which this present case gives rise. That approach, in my judgment, should be this. In a case where the court is manned by a non-Dubai national, that is to say a judge whose training is in the Common Law system, the judge in the ordinary way can be expected to require that the Dubai non-DIFC law will be established by evidence. I hesitate to say by evidence given by expert witnesses because it is appropriate that it should be, if necessary, established by any receivable evidence of appropriate quality, including textbook writings which can be explained to the judge in question and from which he can derive the conclusions necessary for the purpose of resolving the issues of non-DIFC Dubai law between the parties.
8. Where the case is manned by a judge who has been trained in Dubai non-DIFC law, it seems to me that in the ordinary way it should not be necessary for such a judge to require that expert evidence should be called, either evidence given by witnesses or evidence given in a written form, for him to resolve the issues which may arise. Of course, he may feel that he would be assisted by that kind of evidence. There may be cases where the issues of Dubai non-DIFC law are particularly complex or where views of writers upon the subject, or decisions of the courts in Dubai, are in conflict. In those circumstances it may be of assistance to the judge in question to hear the views of writers and academic opinion as to what the law may be.
9. There is a great deal to be said, in my opinion, for this court to approach the problem of the establishment of non-DIFC Dubai law in a pragmatic way. It seems to me that where, as in the present case, the matters are complex, numerous and are to be tried by a common law trained judge, the ordinary approach will be for expert evidence to be given, unless the parties are able to agree that the Dubai non-DIFC law can be put before the judge in some agreed form or in some other way.
10. Accordingly, I have come to the conclusion that in the present case it would be unsafe, unsatisfactory and, indeed, unfair if the parties were to be shut out from calling expert evidence. It seems to me that the issues are such as to lend themselves particularly to experts giving evidence of the principles of non-DIFC Dubai law just as they would be giving evidence of French law if that were the law that were in play. I would, in reaching this conclusion, wish to emphasise that, whereas I can well understand the conceptual problems, which might arise in relation to the issue as to whether non-DIFC Dubai law is a question of fact or a question of law, to which my decision may give rise, nonetheless one has to approach, in my judgment, the particular problem that we have today in a practical and pragmatic way and that is my approach to the issues which have been raised before me.
11. It only remains to decide how this expert evidence will be produced, the timetabling and the usual matters as to whether the experts will be called consecutively or simultaneously.
Issued by
Maha AlMehairi
Judicial Officer
Date: 10 July 2013
Time: 3pm
