Claim No: ARB 027/2024

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

NALANI

Claimant

and

NETTY

Defendant

ORDER WITH REASONS OF H.E. JUSTICE SHAMLAN AL SAWALEHI

UPON the Claimant's Arbitration Claim dated 19 December 2024 (the "Arbitration Claim") for an order recognising and enforcing the Partial Award dated 20 September 2023 (the "Partial Award")

AND UPON the Recognition and Enforcement Order for the Partial Award by H.E. Justice Shamlan Al Sawalehi dated 24 December 2024 (the "Enforcement Order")

AND UPON the Order of H.E. Justice Shamlan Al Sawalehi rejecting the Defendant's Application No. ARB-027-2024/1 for a stay of the enforcement proceedings dated 29 January 2025 (the "Stay Application")

AND UPON reviewing the Claimant's Notice of Commencement of Assessment of Bill of Costs dated 21 March 2025 (the "Notice of Commencement")

AND UPON reviewing the Defendant's Application No. ARB-027-2024/2 challenging the jurisdiction of the DIFC Courts over the Claim and, in the alternative, seeking to strike out the Claim dated 6 February 2025 (the "Jurisdictional Challenge & Strike Out Application")

AND UPON reviewing the Defendant's Application No. ARB-027-2024/3 dated 11 April 2025 seeking an order setting aside the Notice of Commencement dated 21 March 2025 (the "NoC Set Aside Application")

AND UPON reviewing the material filed by both parties in relation to the Jurisdictional Challenge & Strike Out Application and the NoC Set Aside Application

AND UPON hearing Counsel for the Claimant and Counsel for the Defendant at the hearing held before H.E. Justice Shamlan Al Sawalehi on 30 April 2025 (the "Hearing")

IT IS HEREBY ORDERED THAT:

1. The Jurisdictional Challenge & Strike Out Application is dismissed.

2. The NoC Set Aside Application is dismissed.

3. The Defendant shall pay the Claimant's costs of the Jurisdictional Challenge & Strike Out Application and the NoC Set Aside Application.

4. The Claimant shall submit its Statement of Costs within three days of the date of this Order, not exceeding three pages in length.

Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 15 May 2025
At:9am

SCHEDULE OF REASONS

1. This Order addresses two Applications filed by the Defendant, by which it seeks the following orders from the Court: Application No. ARB-027-2024/2 dated 6 February 2025, the Jurisdictional Challenge & Strike Out Application, and Application No. ARB-027-2024/3 dated 11 April 2025, the NoC Set Aside Application (together the "Applications"):

2. Both Applications are dismissed for the reasons set out below.

Background

3. On 20 September 2023, a Partial Award was rendered by an LCIA Tribunal seated in London in favour of the Claimant. The Partial Award included dispositive relief at paragraph [99(c)], which granted the Claimant's Interim Measures Application in the terms specified in the Tribunal's Peremptory Order.

4. On 19 December 2024, the Claimant applied ex parte to the DIFC Court for recognition and enforcement of the Partial Award pursuant to Articles 42 and 43 of DIFC Law No. 1 of 2008 concerning the Dubai International Financial Centre Arbitration Law (as amended) (“DIFC Arbitration Law”).

5. On 24 December 2024, the DIFC Court, by order of H.E. Justice Shamlan Sawalehi, issued an Enforcement Order recognising and enforcing the Partial Award. The Enforcement Order was granted ex parte, thereby converting the Award into a judgment of the DIFC Court, in accordance with the procedural framework set out in Rules 43.61 to 43.75 of the Rules of the DIFC Courts (the “RDC”) which pertains to the enforcement of foreign-seated arbitral awards under the RDC.

6. The Enforcement Order further required the Defendant to pay the Claimant's costs, "to be assessed if not agreed," in line with the provisions of RDC 40.10 as applicable to detailed assessment procedure. The Order was subject to a stay or set-aside application within the 14-day window prescribed under RDC 43.70.

7. On 29 January 2025, the Defendant filed the Stay Application seeking an order from the Court to suspend the statutory timeline for filing a set-aside application under RDC 43.70. The Defendant argued that the timeline should be paused pending the resolution of its intended Jurisdictional Challenge & Strike Out Application. This application was rejected by the Order with Reasons of H.E. Justice Shamlan Al Sawalehi dated 26 February 2025 with the Court finding no sufficient grounds to warrant a suspension of the statutory timeline.

8. On 6 February 2025, the Defendant filed the Jurisdictional Challenge & Strike Out Application, seeking, among other relief, an order striking out the Arbitration Claim and discharging the Enforcement Order.

9. On 21 March 2025, the Claimant filed a Notice of Commencement of Assessment of Costs ("NoC") under RDC 40.10. The NoC was filed within the three-month deadline mandated by RDC 40.10, calculated from the date of the Enforcement Order on 24 December 2024.

10. On 11 April 2025, the Defendant filed the NoC Set Aside Application, seeking to set aside the NoC and discontinue the detailed assessment proceedings initiated pursuant to that notice.

11. The Defendant's Applications collectively seek to challenge the Claimant's enforcement efforts on the basis of an alleged lack of jurisdiction, procedural impropriety, and the assertion that the Peremptory Order referenced in the Partial Award is not independently enforceable under the DIFC Arbitration Law.

12. Both Applications were heard together, with submissions from both parties addressing issues of jurisdiction, procedural regularity, and the appropriateness of cost assessment proceedings prior to the resolution of the Defendant's jurisdictional challenges. These Applications will be discussed further below.

The Jurisdictional Challenge and Strike Out Application

Defendant’s Position

13. The Defendant contends that the DIFC Court lacks jurisdiction over the claim on the basis that the underlying relief sought by the Claimant is not the enforcement of an Arbitral Award within the meaning of Articles 42 and 43 of the DIFC Arbitration Law but rather the enforcement of a Peremptory Order issued by a London-seated tribunal under Section 41(5) of the English Arbitration Act.

14. It argues that the Peremptory Order, dated 22 August 2023, is not incorporated into the dispositive section of the Partial Award rendered on 20 September 2023, and that the Partial Award merely declares, at paragraph [99(c)], that the Claimant’s Interim Measures Application is granted in the terms of the earlier Peremptory Order.

15. The Defendant contends that this language is not capable of constituting enforceable relief under the DIFC Arbitration Law and does not fall within the scope of Article 5(A)(1)(e) of the Judicial Authority Law. The Defendant further alleges that the Claimant improperly drafted the Enforcement Order to include a binding direction requiring compliance with the Peremptory Order, which was not itself an Arbitral Award.

16. On this basis, the Defendant seeks the setting aside of the Claim Form and the Enforcement Order and, alternatively, the striking out of the Claim under RDC 4.16(1) on the grounds that it discloses no reasonable grounds for bringing the claim.

Claimant’s Position

17. The Claimant rejects the Defendant’s argument that the Partial Award is not enforceable and denies that it seeks to enforce a mere Peremptory Order. The Claimant submits that the Partial Award contains a dispositive conclusion at paragraph [99(c)] confirming that the Tribunal granted the Claimant’s Interim Measures Application in the terms of the Peremptory Order. That disposition, it argues, incorporates the Peremptory Order by reference and transforms the earlier procedural directive into a binding Arbitral Award.

18. The Claimant emphasises that the Tribunal had the power to grant interim measures by award pursuant to the LCIA Rules and Section 39 of the English Arbitration Act 1996, and that the form of words used in paragraph [99(c)] satisfies the requirements for enforceability under the DIFC Arbitration Law. It cites the DIFC Court of Appeal’s decision in Neal v Nadir [2024] DIFC CA 001 in support of the proposition that an interim relief order may be incorporated into an enforceable award.

19. Further, the Claimant refutes the allegation that the Enforcement Order deviated impermissibly from the Partial Award. It argues that the addition of the words requiring compliance with the Peremptory Order merely clarifies the effect of the Award and does not expand its substance. It further submits that the Defendant did not challenge the Enforcement Order within the 14-day timeframe prescribed under RDC 43.70.

Analysis and Determination

20. The principal question before me for determination is whether the Partial Award rendered on 20 September 2023 constitutes as an "award" within the meaning of Article 42 of the DIFC Arbitration Law. Article 42 provides that: “An arbitral award, irrespective of the State or jurisdiction in which it was made, shall be recognised as binding and, upon application in writing to the DIFC Courts, shall be enforced subject to the provisions of this Law and the Rules of Court.” The language of Article 42 establishes that any decision rendered by an arbitral tribunal which finally resolves the issues submitted for determination is enforceable as an arbitral award. This extends to Partial Awards, provided that the relief granted is dispositive and forms part of the tribunal's conclusive findings.

21. I accept that the Partial Award issued on 20 September 2023 falls within the definition of an "award" under Article 42 of the DIFC Arbitration Law. The statutory framework of the DIFC Arbitration Law makes clear that any decision rendered by an arbitral tribunal, which finally resolves the issues submitted for determination, constitutes an "award”. This includes Partial Awards in which interim relief is granted as part of the tribunal's dispositive findings.

21. The dispositive relief articulated at paragraph [99(c)] of the Partial Award expressly states that the Claimant's Interim Measures Application is “granted in the terms of the Tribunal’s Peremptory Order.” Contrary to the Defendant's assertions, this reference does not merely serve as a procedural acknowledgment of a prior order. Rather, it constitutes a clear, dispositive adjudication that grants substantive relief to the Claimant. The incorporation by reference of the Peremptory Order within the operative text of the Partial Award is sufficient to transform its contents into binding arbitral relief. This interpretation aligns with the Tribunal's express intention, as reflected in the Award, to render its decision enforceable under the applicable arbitration framework.

22. I reject the Defendant's argument that the Partial Award is a mere procedural order lacking enforceability. The DIFC Arbitration Law, mirroring international arbitral standards, recognises that an award may incorporate prior measures or determinations if such measures are expressly adopted and endorsed within the dispositive part of the award itself. In this instance, the Tribunal did not simply restate or reflect the Peremptory Order; it adjudicated upon it, granting relief in clear and dispositive terms. As such, the relief granted at paragraph [99(c)] is final and enforceable, notwithstanding its reference to an antecedent procedural directive.

23. Article 42 of the DIFC Arbitration Law does not impose a requirement that enforceable relief must be rendered solely in original form. The provision expressly permits recognition and enforcement of "any Arbitral Award," without distinguishing between relief originally granted and relief incorporated by reference, provided that it is dispositive and intended to be binding. This interpretation is consistent with international practice, where interim measures embedded within final awards are enforceable as part of the Tribunal's conclusive determinations.

24. The DIFC Court of Appeal’s decision in Neal v Nadir [2024] DIFC CA 001 further confirms that awards incorporating prior procedural measures are enforceable, provided they contain dispositive relief. In Neal v Nadir, the Court held that an award's enforceability is determined by the substantive nature of the relief granted, not merely its form or classification. The Tribunal's decision to adopt the terms of the Peremptory Order as part of its dispositive findings satisfies the requirements under the DIFC Arbitration Law for enforceability as an Arbitral Award.

25. The DIFC Arbitration Law does not require that enforceable relief be rendered solely in an original or standalone form. Article 42 expressly provides for the recognition and enforcement of "any Arbitral Award," without stipulating that its terms must be independently novel or separate from earlier procedural measures. This legislative framework aligns with established arbitral practice, permitting tribunals to incorporate prior procedural directives within the dispositive sections of their awards, provided the relief is final and capable of enforcement.

26. I find that jurisdiction is firmly established under Article 5(A)(1)(e) of the Judicial Authority Law (the “JAL”), which confers jurisdiction upon the DIFC Courts to recognise and enforce arbitral awards. To note, I recognise that the law on jurisdiction has been updated, however, considering the dates of these proceedings the JAL remains the relevant authority. The jurisdiction as established by statute is further supported by Articles 42 and 43 of the DIFC Arbitration Law, which expressly empower the Court to enforce awards rendered in foreign-seated arbitrations.

27. The Defendant’s alternative argument for strike out under RDC 4.16 is likewise rejected, as the Claim discloses a valid cause of action. The Claimant’s application to enforce the Partial Award is grounded in a final and binding arbitral decision that is recognised and enforceable under DIFC law. The requirements of RDC 4.16(1) are not satisfied, as the Defendant has not established any basis upon which the Claim could be considered "vexatious, frivolous, or otherwise an abuse of the Court’s process." On the contrary, the Claimant's right to enforce the Partial Award is expressly provided for under the DIFC Arbitration Law, and the Enforcement Order was lawfully issued pursuant to an ex parte application in full compliance with the procedural requirements of RDC 43.61 to 43.75.

28. For these reasons, the Jurisdiction and Strike Out Application is dismissed in its entirety. I am satisfied that the Partial Award constitutes an enforceable arbitral award under DIFC law, and that the Enforcement Order dated 24 December 2024 was properly issued.

The NoC Set Aside Application

Defendant’s Position

29. The Defendant submits that the Notice of Commencement ("NoC") filed by the Claimant on 21 March 2025 was premature and contrary to the requirements of RDC 40.1. It contends that the recognition and enforcement proceedings for the Partial Award remain ongoing due to the Defendant’s pending Jurisdictional Challenge and Strike Out Application, which directly contest the Court’s jurisdiction and the validity of the Enforcement Order. The Defendant argues that until those applications are resolved, there is no concluded "proceeding" within the meaning of RDC 40.1, and accordingly, the Claimant is not entitled to initiate detailed assessment.

30. In support of its position, the Defendant relies on the decision of the English Court of Appeal in Deutsche Bank AG v Sebastian Holdings Inc [2024] EWCA Civ 245. In that case, the Court held that the timeframe for commencing detailed assessment does not begin until the underlying proceedings are effectively concluded, noting that premature assessment may result in inefficiencies and prejudice where the final allocation of costs remains uncertain. The Defendant submits that this principle is consistent with the purpose of RDC 40.10, which presupposes a final determination before detailed assessment can be initiated.

31. The Defendant further contends that immediate assessment under RDC 40.1 was neither requested by the Claimant nor directed by the Court. It distinguishes the present case from Abraaj Investment Management Limited (in Official Liquidation) v KPMG [2021] CFI 041, where immediate assessment was expressly requested and ordered following judicial consideration. By contrast, the Defendant argues that the Claimant unilaterally filed the NoC without seeking leave or demonstrating grounds for immediate assessment. It submits that this constitutes a procedural irregularity and that, absent an application or judicial order, the NoC is invalid.

32. Finally, the Defendant disputes the Claimant’s assertion that its Points of Dispute were served out of time. It contends that, pursuant to RDC 9.27, service of the NoC at 4:31 PM on a Friday is deemed to have occurred on the next business day, Monday 24 March 2025. On that basis, the 21-day deadline for Points of Dispute expired on 14 April 2025, and the Defendant's filing on that date was timely. In any event, the Defendant submits that the validity of its Points of Dispute is immaterial, as the detailed assessment process, it argues, was improperly commenced and should be set aside regardless of procedural compliance.

Claimant’s Position

33. The Claimant submits that the detailed assessment proceedings were properly commenced under RDC 40.10, which mandates that a Notice of Commencement must be filed within three months of the relevant costs order. The Enforcement Order of 24 December 2024 awarded the Claimant its costs, and the Notice of Commencement filed on 21 March 2025 was therefore timely.

34. The Claimant rejects the Defendant’s contention that the proceedings are ongoing for the purposes of RDC 40.1. It asserts that the recognition and enforcement claim concluded with the issuance of the Enforcement Order, which constitutes a final judgment of the DIFC Court. In the absence of a stay of execution or express court direction to the contrary, the Claimant maintains that it is entitled to pursue costs assessment.

35. The Claimant further submits that the Enforcement Order contained an express costs direction, rendering a separate application for immediate assessment unnecessary. In the alternative, the Claimant relies on the Court's discretion under RDC 40.10 to permit assessment prior to final resolution, citing Abraaj Investment Management Limited (in Official Liquidation) v KPMG [2021] CFI 041 as authority for immediate assessment where appropriate.

36. The Claimant emphasises that no application to set aside or stay the Enforcement Order was made within the 14-day period prescribed under RDC 43.70(1). The Claimant submits that the Defendant's failure to take the necessary steps within the prescribed timeframe renders the Order effective and enforceable as issued.

37. Finally, the Claimant contends that permitting the Defendant to frustrate the assessment process without a valid stay would be contrary to the Court's duty to secure the just, expeditious, and economical resolution of cases under RDC 1.6. It maintains that the NoC Set Aside Application does not affect the finality of the Enforcement Order, which remains effective and enforceable in the absence of any stay or valid set-aside order.

Analysis and Determination

38. The principal question before me is whether the Claimant's NoC of detailed assessment proceedings, filed on 21 March 2025, was validly commenced under RDC 40.10. The Rule provides that: “Detailed assessment proceedings must be commenced within three months of the judgment, order, direction, or other determination which gives rise to the right to detailed assessment.” The rule imposes a strict three-month timeframe for the initiation of detailed assessment from the date of the relevant costs order. Compliance with this timeframe is mandatory, absent any court-ordered extension or suspension

39. In the present case, the Enforcement Order of 24 December 2024 awarded costs to the Claimant, thereby initiating the three-month period under RDC 40.10. The Claimant filed the NoC on 21 March 2025, which falls within the specified period. Accordingly, the primary inquiry concerns whether the Enforcement Order constituted a final judgment that triggers the application of RDC 40.10, thereby permitting the Claimant to commence detailed assessment proceedings.

40. I find that the Enforcement Order dated 24 December 2024 was final and binding for the purposes of RDC 40.10. Pursuant to Article 42 of the DIFC Arbitration Law, the recognition and enforcement of an Arbitral Award constitutes a conclusive determination of the rights of the parties as to the enforceability of the Award. The Enforcement Order was granted following the Claimant's ex parte application for recognition and enforcement, and the Defendant did not challenge this Order within the prescribed time limit of 14 days under RDC 43.70. In the absence of a successful challenge, the Enforcement Order stands as a final judgment capable of execution.

41. I am further satisfied that the Enforcement Order concluded a distinct and independent application for enforcement under Articles 42 and 43 of the DIFC Arbitration Law. Recognition and enforcement of an Arbitral Award in the DIFC Courts is not contingent upon further substantive proceedings; it is a standalone application designed to convert the Arbitral Award into a judgment of the Court. Accordingly, once the Enforcement Order was issued, the arbitration enforcement proceedings were, for all practical purposes, concluded. This interpretation is consistent with the structure of the DIFC Arbitration Law, which provides for direct enforcement upon recognition without the need for ancillary judicial determinations, save for procedural compliance in execution.

42. The Defendant's argument that detailed assessment should not have proceeded due to the ongoing jurisdictional challenge is unpersuasive. RDC 40.1 establishes the general rule that detailed assessment follows the conclusion of proceedings, but it expressly permits exceptions where a final judgment has been rendered. In the present case, the Enforcement Order represents a final and enforceable determination for the purposes of costs assessment under RDC 40.10. Its status as an independent judgment permits detailed assessment to proceed separately of any ongoing jurisdictional challenges, unless stayed or set aside. The Defendant’s failure to obtain such relief leaves the costs provision operative and enforceable.

43. The Defendant's reliance on Deutsche Bank AG v Sebastian Holdings Inc [2024] EWCA Civ 245 is misplaced. In that case, the English Court of Appeal considered a scenario where detailed assessment was deemed premature due to ongoing substantive proceedings that had not been conclusively resolved. The Court found that conducting piecemeal assessments during unresolved litigation would undermine judicial efficiency and increase costs unnecessarily. This is clearly distinguishable from the present matter, where the Enforcement Order concluded the substantive enforcement application, rendering it final and enforceable. There are no unresolved issues affecting the enforceability of the Award. The NoC was filed within the requisite timeframe under RDC 40.10, and there is no pending litigation that would warrant a stay of the assessment process.

44. The Claimant's compliance with RDC 40.10 is unquestionable. The rule mandates that detailed assessment proceedings must be commenced within three months of the date of the judgment or order giving rise to the cost’s entitlement. The Enforcement Order, dated 24 December 2024, conferred the right to recover costs, and the Claimant's NoC, filed on 21 March 2025, fell squarely within the three-month period prescribed by the Rule.

45. The Defendant's contention that a separate application for immediate assessment is required prior to the filing of a valid NoC is unsupported by the RDC or any relevant legal authority. RDC 40.10 does not condition upon a distinct judicial application unless there is a stay or a contrary order from the Court. The Defendant has cited no authority to substantiate its assertion that an application for immediate assessment must precede the filing of the NoC.

46. The Defendant's attempt to characterise the Enforcement Order as conditional or dependent on the outcome of its jurisdictional challenge is legally and procedurally unsustainable. The Enforcement Order represents a conclusive determination of the Claimant's right to enforce the Award under Article 42 of the DIFC Arbitration Law, independent of the Defendant's subsequent objections. In the absence of a stay or set-aside order, the Enforcement Order remains operative and enforceable.

47. Pursuant to RDC 43.70, any challenge to the Enforcement Order was required to be initiated within 14 days of service. The Defendant’s failure to file within this timeframe renders its current objections procedurally defective. The RDC provides no mechanism for indefinite suspension of enforcement obligations on the basis of speculative challenges that were not timely raised. In the absence of a stay or set-aside application, the Enforcement Order remains effective and enforceable.

48. In light of the foregoing, I am not satisfied that the Defendant has met the relevant thresholds under the RDC to justify the NoC Set Aside Application. The Defendant has failed to establish any procedural irregularity or legal defect in the NoC or the assessment process. Its arguments concerning premature assessment lack substantive support in law and contradict established DIFC Court practice regarding the finality of judgments and cost recovery.

49. I am satisfied that the Claimant validly exercised its rights under RDC 40.10 to commence detailed assessment proceedings. The Claimant is entitled to proceed with the assessment of its costs as ordered in the Enforcement Order and in compliance with the procedural framework of the RDC.

Conclusion

50. For the reasons set out above, the Defendant's Applications are dismissed in full.

51. The Claimant is awarded the costs of the Applications.