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 JUSTICE SIR JOHN CHADWICK
(1) NATIONAL BONDS CORPORATION PJSC
(2) DEYAAR DEVELOPMENT PJSC
AND IN THE MATTER OF AN APPLICATION
|NATIONAL BONDS CORPORATION PJSC
(1) AMLAK FINANCE PJSC
(2) AMLAK SKY GARDENS LLC
||15 January 2013
Nicholas Tse (Brown Rudnick) for the Applicant
Adrian Chadwick (Hadef & Partners) for the Respondents
||15 January 2013
JUDGMENT OF JUSTICE SIR JOHN CHADWICK
1. This Application (CFI 014/2010/19) is made in proceedings brought by Taleem PJSC against National Bonds Corporation PJSC and Deyaar Development PJSC. The proceedings arise out of transactions which took place in 2008 in relation to the purchase of an interest in property within the DIFC known as Sky Gardens. In the course of those transactions the Claimant, Taleem, Amlak Finance PJSC and DIFC Investments LLC entered into a tripartite agreement.
2. National Bonds Corporation PJSC (“NBC”) has made applications for disclosure orders against both Taleem and the second Defendant, Deyaar Development PJSC (“Deyaar”). In those applications NBC sought disclosure of documents — and, in particular, documents said to be in the possession of Deyaar — relating to Deyaar’s dealings with Amlak Finance and its subsidiary, Amlak Sky Gardens (“ASG”). Deyaar’s response to those applications includes an assertion that it has produced all the documents that it has in relation to dealings with Amlak Finance and ASG.
3. That response has prompted the present application by NBC against Amlak Finance and ASG for production of documents pursuant to Rule 28.32
of the Rules of the DIFC Courts. Rule 28.32
“An application for production of documents by a person who is not a party to the proceedings must under these Rules be supported by evidence.”
It must be read with RDC 28.33
, which provides that:
“The Court may make an order under this rule only where:
(1) the documents of which production is sought are likely to support the case of the Applicant or adversely affect the case of one of the other parties to the proceedings; and
(2) production is necessary in order to dispose fairly of the claim or to save costs.”
4. In response to that application the Amlak Respondents seek the determination of the Court on the question whether the Court has jurisdiction to make an order against them under RDC 28.33
. The Court is not concerned, on this application, to decide whether, if it does have jurisdiction, it would be appropriate to make an order under the rule; but it is important to appreciate that, if the Court does have jurisdiction, it may well be faced with the need to determine a dispute raised by Amlak and ASG on the questions whether the documents sought are likely to support the case of NBC or adversely affect the cases of Taleem and Deyaar in the main proceedings and whether production is necessary in order to dispose fairly of the claim. So, if the Court accepts jurisdiction, it may have to determine those issues between NBC and the Amlak parties.
5. At first sight, the questions raised for determination are (i) whether an order for production of documents by a non-party can be made in circumstances where the non-party is not, itself, subject to the jurisdiction of the DIFC Courts; and (ii) whether, if as a general rule there is no power to make orders for production against a non-party who was not subject to the jurisdiction of the DIFC courts, this case falls outside that rule because of the involvement of Amlak Finance in the tripartite agreement to which I have referred (and so, indirectly, in the transaction which is the subject matter of the claim in the main proceedings).
6. In my view, however, it is unnecessary to decide either of those questions; and I do not do so. It is unnecessary to decide either of those questions because jurisdiction in relation to Amlak Finance and its subsidiaries is the subject of a special decree, Decree No.61 of 2009, made on 27 December 2009.
7. Decree No. 61 of 2009 is headed:
“Concerning the formation of a Special Judicial Committee for the Settlement of Disputes Related to Amlak Finance, PJSC and Tamweel, PJSC.”
Article 1 of that decree constitutes the Special Judicial Committee, consisting of three judges in the Emirate’s courts. Article 2 is in these terms, in the English translation provided to the Court:
“The Committee shall be concerned with the following:
(a) to consider and settle any petition or claim raised against:
1. Amlak Finance, Public Joint Stock Company, or Tamweel, Public Joint Stock Company, or against any of their subsidiaries including the application submitted for liquidation and dissolution of the same;
2. any person related to the settlement of the financial issues of both companies, including their chairmen, directors and all personnel and staff;
(b) to issue the preliminary and temporary orders and verdicts which include binding anyone to do or refrain from doing any act or to take any other action as deemed proper by the Committee.
The Committee is entitled to seek assistance of whoever it deems appropriate of those who have expertise and experience in the issue being exhibited before the same.”
Article 3, as contained in the 2009 decree as made, was in these terms:
“Dubai Courts are not allowed to consider and settle any petition or claim within the jurisdiction of the said Committee as stipulated herein and the Court shall cease considering or settling any claims or petitions submitted to such courts prior to the implementation of this Decree and shall refer the same to the Committee.”
8. If those articles had remained un-amended, the question for decision would be whether the application which has been made under RDC Part 28
for an order for the production of documents by a non-party was an application which fell within the jurisdiction of the Special Judicial Committee. Under the Decree as made the prohibition under Article 3 is specifically linked to petitions or claims “within the jurisdiction of the . . . Committee”. But that position changed when an amending decree, Decree No. 24 of 2012, was issued on 16 December 2012. The purpose of the amending decree was to substitute a new text for the text originally enacted as Article 3 in the decree as made in 2009. The new text, in the translation which has been provided by the parties, is this:
“Article 3: All courts in the Emirate of Dubai, including the Dubai International Financial Centre Courts, shall be prohibited from considering and determining on an application or claim related to Amlak Finance PJSC and must stop considering the claims and applications that had been presented to them for the issue of this Decree and refer them to the Committee.”
That, as I say, is the translation which has been provided to the Court by the parties. A slightly different translation appears in an order made by His Excellency Justice Omar Al Muhairi, sitting in this Court, in Claim No. CFI 017/2012 (Gregory and Michelle Whetham and Amlak Finance PJSC). The order is dated 24 December 2012. H.E. Justice Omar Al Muhairi translation reads as follows:
“All Dubai courts, including DIFC courts, have no jurisdiction to hear and determine or resolve any applications or claims concerning Amlak Finance PJSC and should refrain from hearing all applications or claims submitted to them before the issuance hereof and should accordingly refer such applications and claims to the Committee.”
I am told by Mr Adrian Chadwick, who appears on behalf of the Amlak Respondents, that, in the Arabic text, the word (or words) which have been translated as “petition or claim” in the translation of the 2009 Decree and as “Application or Claim” in the translations of the 2012 Decree (both in the translation provided and in H.E. Justice Omar Al Muhairi order) are identical. There is only one word, it is said, which could have and does have the meaning “Application” and the meaning “petition”; so nothing turns on the apparent difference of language in translation.
9. I was told also — and there is no reason to doubt — that one purpose of the amending decree in 2012 was to resolve doubts amongst the legal community as to whether the phrase “Dubai Courts” in Article 3 of the 2009 Decree, included the Dubai International Financial Centre Courts. The 2012 Decree plainly does resolve that issue. It refers to all courts in the Emirate of Dubai including the Dubai International Financial Centre Courts. It may be noted that the 2012 Decree makes no reference to Tamweel PJSC; which had been the subject of Decree No. 61 of 2009. I am told by Mr Adrian Chadwick — and again there is no reason to doubt it — that the explanation for that is that disputes relating to Tamweel PJSC were taken out of the jurisdiction of the Special Judicial Committee by Decree No.27 of 2011, to which reference is made in the preamble to Decree No. 24 of 2012: so that, by the time Decree No. 24 of 2012 was issued, the Special Judicial Committee established in 2009 no longer had jurisdiction in relation to claims and disputes against Tamweel and its subsidiaries. Its jurisdiction was restricted to claims and disputes against Amlak Finance PJSC and its subsidiaries.
10. The third — and in the present context, important — change made to Article 3 by the 2012 Decree is that, where Decree No. 61 of 2009 referred to:
“petitions or claims within the jurisdiction of the said Committee as stipulated herein”
the amended article (in the 2012 Decree) makes no reference to jurisdiction of the Special Judicial Committee. It refers simply to applications or claims relating to Amlak Finance PJSC — or, in the words of H.E. Justice Omar Al Muhairi’s order: “concerning Amlak Finance PJSC” — so that, in order to answer the question
“does this Court have jurisdiction to make orders against Amlak and its subsidiary as non-parties in these proceedings under RDC 28.33
“, it is not necessary to consider what the jurisdiction of the Special Judicial Committee constituted in 2009 was, or now is. The relevant question on the language now used in Article 3 is to ask whether the Application or Claim made under RDC 28.33
is an Application or Claim “relating to [or concerning] Amlak Finance PJSC”.
11. In my view it is unarguable that the Application made in these proceedings — for an order that Amlak Finance PJSC should produce documents — is not an Application related to or concerning Amlak Finance PJSC. It is, after all, an Application for an order requiring that Amlak Finance PJSC do something. There is, however, a question as to whether an Application for an order that ASG produce documents can be said to be an application related to or concerning Amlak Finance PJSC. The answer to that question, in my view, is this: first, an application that a subsidiary of Amlak Finance PJSC takes some step by way of the production of documents can properly be said to be an application related to the parent company, Amlak Finance PJSC. I think the phrase “related to or concerning” should be given a generous interpretation in this context. The Special Judicial Committee is concerned with petitions or claims raised against Amlak or any of its subsidiaries. To interpret Article 3, as amended, in a way which excludes Amlak’s subsidiaries would be contrary to the obvious intention of the maker of the amending Decree.
12. The principal argument advanced on behalf of NBC is, in effect, that it is necessary to read into the words of the amended Article 3 some qualification that the application or claim relating to Amlak or its subsidiary must be an application or claim within the jurisdiction of the Special Judicial Committee established in 2009. It is said that it is necessary to read in such a qualification because the obvious purpose of Article 3 is to ensure that the Dubai courts — or the courts in the Emirate of Dubai, including the DIFC courts — should not be addressing the same applications or claims as the 2009 Decree and the amending Decree in 2012 have entrusted to the Special Judicial Committee. So, it is said, Article 3 (as amended) should be given no wider meaning than is necessary to achieve that purpose. To give the article a meaning which might prohibit courts in the Emirate of Dubai from determining applications or claims relating to Amlak companies which would not themselves fall within the jurisdiction of the Committee would be, it is said, to go too far.
13. There is force in that submission. If Article 3 in its amended form had been originally included in the 2009 Decree, I should have been strongly inclined to accept the submission. It seems to me likely that that is what would have been intended. But the circumstances are that the amended version of Article 3 was not included within the decree as made in 2009; but was introduced as an amendment in 2012. In effect, therefore, this Court is being invited to read into the article, as amended, words which were in the article in its original form but which have been omitted from the amended form; and, it must be assumed, have been omitted deliberately. The words are: “within the jurisdiction of the said Committee”. There was no need to remove those words when the decree was amended. They could have been retained. But the decree was made in a form which did not retain them. It would be wrong, in my view, for this Court to read back into the amended article words which it must be assumed the maker of the decree chose deliberately not to include in it. That, as it seems to me, goes beyond any legitimate process of interpretation. It would involve this Court, in effect, saying that it must have been intended to include words that were deliberately not included. It is not necessary to include those words in order to give effect to Article 3. It is perfectly possible to reach the conclusion that it was a deliberate decision of policy to exclude from the jurisdiction of the courts in the Emirate of Dubai all applications or claims which related to Amlak whether or not those applications or claims could be dealt with by the special judicial committee. If that were the intention, it is not for this Court to question the reasoning behind it.
14. For those reasons I am satisfied that the challenge to jurisdiction mounted by the Amlak parties is well founded and that application CFI 014/2010/19 must be struck out on the grounds that this Court has no jurisdiction to hear it, the Court is prohibited from doing so by the amended decree to which I have referred.
Date: 12 March 2013