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Imelda Psjc v Ira [2018] DIFC SCT 022

Imelda Psjc v Ira [2018] DIFC SCT 022

February 26, 2018

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Claim No:  SCT 022/2018

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

 

IN THE COURT OF FIRST INSTANCE

BETWEEN

 

IMELDA PSJC

Claimant

and

 

IRA

Defendant


ORDER WITH REASONS OF SCT JUDGE NASSIR AL NASSER


UPON this claim having been called on 25 February 2018 for a Jurisdiction hearing before SCT Judge Nassir Al Nasser, with the Claimant’s representative attending the consultation and the Defendant attended via teleconference;

AND UPON the Courts’ decision to consider the Claimant and Defendant’s submissions;

IT IS HEREBY ORDERED THAT:

1.The Defendant’s Application to contest jurisdiction is granted.

2. The DIFC Courts has no Jurisdiction to hear and determine this claim.

 

Issued by:

Nassir Al Nasser

Judicial Officer

Date: 26 February 2018

At: 10am

 

SCHEDULE OF REASONS

1.The Claimant filed a claim in the Small Claims Tribunal in respect of credit card payment and personal cash loan in the sum of AED 131,730.74.

2. In response to the Claim, the Defendant filed an Acknowledgment of Service contesting the Jurisdiction of the DIFC Courts on the basis that: the liability was taken from the Claimant Imelda Branch located outside the DIFC and all transactions were made outside the DIFC; and the Claimant did not specify in the Agreement’s terms and conditions that the jurisdiction should be exclusive to the DIFC Courts.

4. The Claimant in response to the Defendant’s submission alleges that the Claimant lodged an SCT claim in the DIFC Courts based on the terms and conditions agreed and consented to the Defendant. Furthermore, the Claimant refers to clause U of the general terms and conditions of the Agreement. The Claimant alleges that the customers have consented to opt in to any of the UAE Courts in case of a dispute. Clause U of the general terms and conditions state that:

“U. Governing Law and Jurisdiction:

These terms and conditions shall be construed in accordance with the laws of United Arab Emirates and the rules, regulations and directives of the Central Bank of United Arab Emirates. The law governing the accounts or any banking services or transactions is the law of the Emirate in which the account maintained, in the event of a dispute arising in relation to any account, banking services or transaction the court of such emirates shall have jurisdiction, provided that the bank may, if it deems appropriate, bring proceedings in any other jurisdiction, inside or outside the United Arab Emirates.”

6. The DIFC Courts deal exclusively with all cases and claims arising out of the DIFC and its operation, and any other claims in which all parties agree in writing to use the DIFC Courts. The Claimant and the Defendant are not operating within the DIFC. The Defendant didn’t agree either in writing or in any other means of communication to exclusively use the DIFC Courts.

7. The jurisdiction of the DIFC Courts is determined by Article 5(A) of the Judicial Authority Law, Dubai Law No. 12 of 2004, as amended, which provides a number of limited gateways through which the DIFC Courts have jurisdiction over a claim, which are, as relevant:

“(a) Civil or commercial claims and actions to which the DIFC or any DIFC Body, DIFC Establishment or Licensed DIFC Establishment is a party;

(b) Civil or commercial claims and actions arising out of or relating to a contract or promised contract, whether partly or wholly concluded, finalised or performed within DIFC or will be performed or is supposed to be performed within DIFC pursuant to express or implied terms stipulated in the contract;

(c)  Civil or commercial claims and actions arising out of or relating to any incident or transaction which has been wholly or partly performed within DIFC and is related to DIFC activities; . . .

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

(2)  . . . civil or commercial claims or actions where the parties agree in writing to file such claim or action with [the DIFC Courts] whether before or after the dispute arises, provided that such agreement is made pursuant to specific, clear and express provisions.”

8. Both parties are not registered companies in the DIFC, nor did they agree in writing that in case of a dispute the DIFC Courts would have jurisdiction to hear and determine their dispute.

9. Therefore, I am of the view that the DIFC Courts, pursuant to Article 5A of the Judicial Authority Law No. 12 of 2004, as amended, has no Jurisdiction to hear and determine this claim.

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