October 21, 2025 Arbitration - Orders
Claim No. ARB 032/2025
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
OSWIN
Claimant
and
(1) OTILA (2) ONDRAY
Defendants
REASONS FOR THE ORDER OF H.E. JUSTICE MICHAEL BLACK KC DATED 21 OCTOBER 2025
SCHEDULE OF REASONS
1. This is an urgent application by the Claimant, Oswin, for an anti-suit injunction against the Defendants, (1) Otila, and (2) Ondray, ordering them to cease taking any further steps in Abu Dhabi Court Case No. X , save to discontinue those proceedings forthwith pursuant to the Court’s powers under Article 24(3) of the DIFC Arbitration Law No. 1 of 2008 (“DIFC Arbitration Law”) which provides that:
“The DIFC Court shall have the same power of issuing an interim measure in relation to arbitration proceedings, irrespective of whether their place is in the DIFC, as it has in relation to proceedings in courts. The DIFC Court shall exercise such power in accordance with its own procedures.”
2. The application was issued on Friday 17 October 2025 on a without notice basis. I directed that notice should be served on the Defendants and that I would hear the parties in person on Monday, 20 October 2025. Notice was served on the Second Defendant’s legal representative on 17 October 2025.
3. Counsel on both sides are to be congratulated on the speed with which they have acted and the assistance they have provided the Court.
4. The Claimant and the Second Defendant are shareholders in the First Defendant. The shareholders’ relationship is governed by a Joint Venture Agreement dated 12 March 2019 (“JVA”). As H.E. Justice Sir Jeremy Cooke described in his judgment of 16 September 2025, the Claimant holds 49% shares in the First Defendant and the Second Defendant holds 51% of the shares but board decisions are required to be made on a unanimous basis and shareholder decisions require a 75% majority. There is therefore deadlock, including as to who may represent the First Defendant. Thus, the proceedings before Sir Jeremy proceeded on the basis that the Company was a passive unrepresented party and the active parties are the Claimant and the Second Defendant.
5. Clause 21 of the JVA provides:
“21.1. This JVA and any dispute or claim arising out of or in connection with it or its subject matter or formation of Olivet shall be governed by and construed in accordance with the laws of the United Arab Emirates.
21.2. In the event of any dispute between the Parties arising out of or relating to this JVA, representatives of the Parties shall, within fifteen (15) working days of a written notice from one party to the other party (“Dispute Notice”), hold a meeting between the Parties (“Dispute Meeting”) to resolve the dispute amicably. Each Party’s representative shall have the authority to settle the dispute.
21.3. Any dispute which is not resolved within thirty (30) days after the service of a Dispute Notice, whether or not a Dispute Meeting has been held, shall be referred to and finally resolved by arbitration under the Arbitration Rules of the DIFC-LCIA Arbitration Centre, which Rules are deemed to be incorporated by reference into this clause.
The number of arbitrators shall be one.
The seat, or legal place of arbitration shall be DIFC.
The language to be used in the arbitration shall be English.
21.4. Subject to Clause 21.2 and Clause 21.3, the Courts of Emirate of Abu Dhabi shall have exclusive jurisdiction.”
6. On 28 August 2025 the Claimant applied urgently without notice to this Court for interim injunctive relief. On 29 August 2025, H.E. Justice Sir Jeremy Cooke granted an interim injunction, preserving the status quo and restraining the Defendants from, amongst other things, unilaterally altering the management of the First Defendant or operation of the Plant without complying with the JVA. The Court fixed a Return Date for 8 September 2025.
7. On 8 September 2025, shortly before to the Return Date hearing, the Defendants applied to set aside the Injunction and discharge the proceedings for want of jurisdiction. The Defendants challenged the Court’s jurisdiction and argued that exclusive jurisdiction for any disputes arising from the agreements between the parties lies with the Courts of Abu Dhabi. Following a hearing on 8 September 2025 and further written submissions, this Court dismissed the Discharge Application by its Order dated 16 September 2025.
8. Following the expiry of the pre-arbitral dispute resolution period which had commenced by the Dispute Notice on 15 August 2025 the Claimant filed a Request for Arbitration with the Dubai International Arbitration Centre (“DIAC”) on 16 September 2025. The arbitration is now registered and the parties are awaiting the constitution of the tribunal by DIAC.
9. Meanwhile the Second Defendant, claiming to act on behalf of the First Defendant, commenced proceedings against the Claimant in the Abu Dhabi Court of First Instance. The Claimant’s legal representatives first became aware of the proceedings on or about 24 September 2025.
10. In those proceedings it was claimed:
“1. To appoint an urgent expert committee to visit the premises of the project subject of management and operation and to evidence [the Claimant]’s control and to evidence […]. The expert committee may enforce the performance of the task thereof, even if forcefully.
2. To enable the First and Second Defendants to enter into the premises of the project under the Claimant’s control and to take over the same on a final basis.
3. To remove and prohibit the Claimant from signing any contracts, invoices or cheques, or approving any invoices or business on behalf of, whether such business or invoices are in Favor of the Claimant or any other party.
4. To rule in the appointment of Second Defendant as the party in charge of the management of the First Defendant temporarily until the takeover of the entire project from the Claimant, whereby it shall have the necessary authorities of management and operation to take over the project and run the same. […].”
11. On 7 October 2025 the Defendants filed an application for permission to appeal the Order H.E. Justice Sir Jeremy Cooke dated 16 September 2025. A decision under that application is pending.
12. The application to the Abu Dhabi Court of First Instance was a breach of the 16 September 2025 Order which stated in terms that the Injunction dated 29 August 2025 be continued until further order or until the matters raised in the Notice of Arbitration dated 15 August 2025 are determined by the duly appointed Tribunal, with its seat in the DIFC. The Injunction dated 29 August 2025 expressly stated that until the Return Date or further Order of the Court:
(1) The Second Defendant shall not, directly or indirectly, purport to act on behalf of the First Defendant in relation to the management or operation of the medical and hazardous‑waste facility at Obando (“Plant”) unless and until there is:
(a) a unanimous resolution of the Board of Directors of the First Defendant as required by Clause 9.3 of the JVA; or
(b) a shareholders’ resolution that satisfies the voting thresholds prescribed by Clause 10.3 of the JVA.
(2) The Defendants must not take any step(s), implement any decision(s), or instruct any third party(ies) or public authority(ies) in relation to the management or operation of the Plant, including without limitation, replacement or removal of the Claimant, unless that step or decision has been approved in accordance with the requirements in JVA Clause 9.3 and JVA Clause 10.3.
(3) The Second Defendant is restrained from / must not:
(a) alter bank mandates or signatories of the First Defendant, or give instructions to any bank that would change control over operational payments or divert receipts;
(b) directly or indirectly solicit, induce or attempt to procure any transfer of employment or visa sponsorship of the Claimant's employees, consultants or contractors working at or for the Plant to the First Defendant or any third party;
(c) undertaking any action expressly reserved to the Claimant under Annexure C of the JVA (incorporated by reference in Clause 5.4 thereof).
(4) Pending the Return Date and/or further order of this Court, the Claimant shall continue to act as operator of the Plant under and in accordance with the O&M Agreement dated 25 August 2021, and the Environmental Permit issued by the Environment Agency Abu Dhabi, until such time as a duly convened meeting of the Board of Directors of the First Defendant (satisfying quorum and unanimity requirements under JVA Clause 9.3), or a General Assembly resolution under JVA Clause 10.3, resolves otherwise.
13. The breach was twofold, the Second Defendant was purporting:
(1) To act on behalf of the First Defendant; and
(2) To take over the management or operation of the Plant and replace or remove the Claimant.
14. The proceedings instituted by the Defendants were dismissed by the Abu Dhabi Court of First Instance on 30 September 2025 on the grounds that there are potential arbitration proceedings between the parties and that arbitration matters before the Abu Dhbai Courts are allocated to the Court of Appeal.
15. In further breach of the 16 September 2025 Order, on 3 October 2025 the Defendants filed proceedings before the Abu Dhabi Court of Appeal. The Claimant’s legal representatives learned of the filing on 7 October 2025.
16. On 10 October 2025, the Claimant instructed its legal representatives to issue a formal legal notice to the Defendants, demanding the immediate and unconditional withdrawal of the Appeal within 48 hours and warning of intended anti-suit and contempt proceedings if the withdrawal was not timeously done. In response, the Defendants issued a letter dated 12 October 2025 which rejected the Orders of this Court.
17. In the proceedings filed by the Defendants they asserted to the Abu Dhabi Court of Appeal on 14 October 20205 that:
“Through misleading means and by presenting incomplete documents that concealed the truth from the courts of the Dubai International Financial Centre (DIFC), the Appellee, relying solely on the joint venture agreement, sought and obtained an order against the Appellants. Through those incomplete documents, it was asserted that jurisdiction lies with the DIFC Courts and not with the regular Abu Dhabi Courts. Based on this, Order No. 32/2025 was obtained, prohibiting the Second Appellant from undertaking any independent actions concerning the joint venture project, and from deleting or altering banking authorizations or authorized signatories of the First Appellant. This order did not address the Appellants’ right to establish the project’s condition, inspect the incinerator, equipment, and machinery at the project site, review the project’s accounting system and records, nor did it settle the issue of whether jurisdiction lies with arbitration.”
18. In fact, it appears that it is the Abu Dhabi Court of Appeal that is being misled. Sir Jeremy was clearly aware of the other documents relied upon by the Second Defendant but held, that the JVA is “self-evidently, the overarching primary agreement” and rejected the argument that the O&M Agreement superseded the JVA as “untenable”.
19. This application is one of considerable urgency as I understand there is to be a further hearing before the Abu Dhabi Court of Appeal tomorrow, 21 October 2025.
20. The Claimant submits that:
(1) the Defendants persistently evade the Arbitration Agreement and this Court’s jurisdiction by re-litigating issues already decided or raising new arguments;
(2) the assertion that this Court had “incomplete documents” is false and was conspicuously absent during the Return Date hearing before this Court, despite the Defendants confirming they relied solely on the evidence already submitted (which included the JVA and the O&M Agreement) and had no new evidence;
(3) the Defendants mischaracterize the DIFC proceedings in their Appeal Memorandum, incorrectly claiming the DIFC interim order did not rule on the matter of “whether jurisdiction lies with arbitration.” This is demonstrably false, as the Reasons accompanying the Continuation Order explicitly addressed and determined these issues. The Court held (as noted) that the JVA is “self-evidently, the overarching primary agreement”; that Clause 21.4 “cannot derogate from” Clauses 21.2–21.3; and that “in agreeing to the DIFC as the seat of the arbitration, the parties have agreed to the supervisory jurisdiction of the DIFC Court”.
21. In Narciso v Nash [2024] ARB 009 (20 June 2024) I considered the appropriate test for the grant of an anti-suit injunction in aid of arbitration proceedings at [80]-[83]:
“80. There is some dispute over the correct test. The Defendant points to the admonition of Justice Sir Jeremy Cooke in Brookfield at paragraph [4] that “It is self-evident that this Court should not interfere with the decisions of other courts of competent jurisdiction…and should not impugn the contents of their judgments. It is only where there is an absence of jurisdiction or where proceedings are vexatious and oppressive that a court is ordinarily prepared to grant an antisuit injunction.” The Defendant also makes reference to (1) ED&F Man Capital Markets MENA Limited (2) ED&F Man Capital Markets Limited v (1) Sayyed Hussain (2) RJ O'Brien MENA Capital Limited (3) Stephen Ghallami, CFI 015/2018 in which H.E. Justice Omar Al Muhairi held that, “the party seeking an anti-suit injunction must generally show that proceeding before the foreign court is or would be vexatious or oppressive.”
81. The reasons relied upon by the Defendant for not enforcing the agreement to arbitrate, the validity of which is a serious issue to be tried on the American Cyanamid basis, are that:
1) The Sharjah Proceedings are not vexatious or oppressive;
2) There is no apparent injustice in allowing those proceedings to continue; and
3) The Claimant is perfectly capable of seeking a stay of proceedings or dismissal the case on legal grounds by application in the Sharjah Proceedings.
82. I consider that the Defendant is not applying the appropriate test. The citation from Brookfield was a general introductory paragraph. Later in the judgment (paragraph [41]) Sir Jeremy contrasted the general position with that where the Court is that of the seat of an arbitration. In such a case the Court would be concerned to protect its own jurisdiction and to protect the agreement of the parties to refer their disputes to arbitration. ED&F was not an arbitration case at all. As stated at paragraph 52 above, the English common law practice (which the DIFC Courts follow) is that if the seat is the DIFC, good/strong reason would have to be shown why the agreement to arbitrate should not be enforced.
83. I do not consider that the points raised by the Defendant amount to good or strong reasons why the agreement to arbitrate should not be enforced. “Vexatious or oppressive” is not the applicable test. The injustice of allowing the Sharjah Proceedings to continue is that to do so (at least arguably) is to permit the Defendant to act in breach of the Arbitration Agreement.”
22. The passage emphasizes something that is often misunderstood and, regrettably, often misrepresented to other courts. An anti-suit injunction is not directed to the courts of another jurisdiction. That would be a wholly impermissible exercise of an extortionate jurisdiction and an egregious breach of the comity and respect that very properly should and does exist between courts. The injunction is aimed at the party over whom this Court has jurisdiction because that party has entered into an arbitration agreement that provides for a seat in the DIFC. The object of the injunction is to enforce the bargain made by that party. An arbitration agreement is in the nature of an exclusive jurisdiction agreement excluding court proceedings save to the extent permissible under the applicable law. This is recognised by the DIFC Arbitration Law which provides at Article 13(1):
“(1) If an action is brought before the DIFC Court in a matter which is the subject of an Arbitration Agreement, the DIFC Court shall, if a party so requests not later than when submitting his first statement on the substance of the dispute, dismiss or stay such action unless it finds that the Arbitration Agreement is null and void, inoperative or incapable of being performed.”
23. The provision derives from the UNCITRAL Model Law and the UAE Federal Arbitration Law contains a similar provision at Article 8(1):
“The court, to which a dispute covered by an Arbitration Agreement is referred, shall dismiss the action, if the Respondent moves to dismiss the same before making any motion or plea on the subject matter of the action, unless the court finds that the Arbitration Agreement is void, or unenforceable.”
24. Thus, unless the Court finds that the arbitration agreement is void or unenforceable, both the DIFC Courts and Federal Courts are bound to dismiss any claim brought in breach of the arbitration agreement (although the DIFC Courts also have the option to stay the claim).
25. This is why, unless a party who has entered into an arbitration agreement can show good or strong reasons why the agreement to arbitrate should not be enforced, the Court will act to hold that party to its agreement to arbitrate by injuncting it from commencing or continuing proceedings that breach the exclusive jurisdiction the party has, by agreement, conferred on the arbitral tribunal.
26. In reply to the Application, the Second Defendant has served a witness statement from Mr Ozlynn the owner of the Second Defendant. He states that Mr. Mohamed Ismail is duly authorised to represent the First Defendant.
27. The thrust of his complaint against the Claimant is that the Claimant is, in effect, seeking to evade its disclosure obligations and to deny him, as a shareholder, access to information to which he is lawfully entitled. He suggests that what is sought before the Abu Dhabi Courts is limited to the appointment of an expert to assess the Claimant’s performance during the O&M term and to obtain certain documents and information. This seems to exhibit a misunderstanding of the relief claimed at least as sought before the Abu Dhabi Court of First Instance.
28. Apparently, the Defendants have now limited or, are about to limit, their claims before the Abu Dhabi Court of Appeal. This seems to me to be an admission that the initial claims were improper. It does not however meet the question of the appropriate forum within which to bring any claim.
29. The Second Defendant also served the Second Witness Statement of Mr Ozlem, the Chairman the First Defendant.
30. He also states that Mr. Mohamed Ismail is duly authorised to represent the First Defendant.
31. I am happy therefore to accept that the First Defendant shall be bound by any Order I shall make.
32. Mr Ozlem suggests that the Application misinterprets the contractual arrangements between the parties, ignores the exclusive jurisdiction of Abu Dhabi Courts for matters arising from the O&M Agreement, and mischaracterizes the nature and purposes of Abu Dhabi Court Case to mislead this Court to obtain an Anti-Suit Injunction.
33. I find legal submissions coming from witnesses of fact to be inappropriate and irrelevant. In any event, this Court has already held that the JVA is the dominant agreement and that finding may only be reopened on appeal. It is interesting to note from Mr Ozlem’s statement that the Abu Dhabi Court of First Instance also read the documents in the same way as this Court, and he says that they were wrong to do so too.
34. I will only address the factual content of the witness statements. Mr Ozlem denies that the Defendants are seeking to remove the Claimant as operator of the plant and seize control. He says that the demand in the Abu Dhabi Court Case is for the appointment of an expert, handover of documents, and assessment of damages, but not to alter management or control. These are procedural, evidentiary, and remedial measures related to the O&M performance and commitments, and the Claimant's contractual obligations thereunder.
35. Not only was that untrue before the Defendants withdrew the majority of their claims but if that is all both the Defendants really want then the solution is simple and will not involve them in the expense of contested proceedings before the Abu Dhabi Courts, breach of this Court’s Orders or the risk of heavy fines for contempt. All they need to do is to make their applications in the context of DIAC Arbitration proceedings. Indeed, if matters are genuinely urgent, they could seek the appointment of an Emergency Arbitrator to grant interim relief.
36. Insofar as either witness addresses the merits of any claims between the parties that is irrelevant for today’s purposes. This Court has already determined that the appropriate forum within which to ventilate those issues is the DIAC arbitration.
37. In response the Claimant served the Second Witness Statement of Dr. Mahmood Hussain Ali Ahmad of its legal representatives. His witness statement seeks to suggest that in their actions the Defendants have acted in a vexatious and oppressive manner. He identifies 10 respects, namely they:
(1) Lodged or threatened a criminal complaint to pressure the Claimant and its personnel during the injunction period.
(2) Applied in the DIFC Court of First Instance to discharge or set aside the Injunction and to re-open matters absent new material.
(3) Commenced and prosecuted parallel Abu Dhabi proceedings seeking takeover of the First Defendant, replacement of the manager, and restrictions on signing authority, contrary to the Injunction and the Return-Date Order.
(4) Sought permission to appeal in the DIFC without any stay and treated that step as licence to ignore the Court’s orders, misinforming the Abu Dhabi Courts.
(5) Filed and pursued appeals before the Abu Dhabi Courts while these DIFC proceedings were ongoing, relying on selective or incomplete disclosure of the DIFC record. Notably, neither the Injunction nor Continuation Order were disclosed.
(6) Used a disputed power of attorney to act for the First Defendant despite the deadlock and in defiance of the Injunction.
(7) Re-litigated issues already before the DIFC by alleging an incomplete record onshore and inviting inconsistent findings.
(8) Issued an ultimatum to transfer employees’ visas away from the First Defendant to strip the workforce and disrupt operations.
(9) Withheld agreed O&M fees and intra-group loan servicing to engineer cash-flow distress.
(10) Continued to expand and pursue the Abu Dhabi proceedings notwithstanding the DIFC Court’s supervisory jurisdiction and extant orders.
38. This witness statement like the others strays into irrelevant areas pertaining to the merits.
39. There is a witness statement from Mr Mohamed Ismail, filed in reply to that of Dr Hussain. It too is largely irrelevant for today’s purposes.
40. The focus of today’s Application is whether there is in being an agreement to arbitrate the issues between the parties and, if so, whether the Defendants can show good or strong reasons why the agreement to arbitrate should not be enforced. As I stated in Narciso the test is not that the parallel proceedings would be vexatious, oppressive or unconscionable and accordingly much of the material before me directed to that issue is irrelevant.
41. H.E. Justice Sir Jeremy Cooke has already decided that there is an arbitration agreement in being providing for a seat in the DIFC thereby clothing this Court with supervisory jurisdiction. While that finding is the subject of an outstanding application for permission to appeal, unless and until reversed, it constitutes a res judicata as between the parties and is binding on me.
42. In opposition to today’s Application, the Defendants submit that:
(1) The Application is an abuse of process, designed to obstruct the Defendants’ legitimate exercise of their shareholder rights and to prevent scrutiny of the Claimant’s mismanagement and financially prejudicial conduct;
(2) Under the arrangements between the parties, the parties entered into the JVA on 12 March 2019. They then entered into a four-year O&M Agreement, which expired by its own terms on 24 August 2025. Under this agreement, the Claimant assumed operational control of the waste treatment plant. The financial arrangement under the O&M Agreement was grossly prejudicial to the First Defendant. The Defendants discovered significant operational and financial irregularities. Consequently, the Defendants initiated proceedings in the Abu Dhabi Courts seeking the appointment of an expert to investigate these irregularities;
(3) The O&M Agreement confers jurisdiction on the Abu Dhabi Courts;
(4) The Injunction Order is narrowly defined. It prohibits the Respondents from taking steps to “replace or remove the Claimant” from the management and operation of the plant. It does not create a blanket ban on all other legal or contractual rights. The Abu Dhabi proceedings, particularly after the amendment of prayers, do not seek to remove or replace the Claimant. The sole objective is the appointment of a neutral court expert to examine the books and records to verify the extent of mismanagement. This is a crucial step for transparency and accountability;
(5) As a majority shareholder, the Second Defendant has a fundamental right and duty to oversee the company's affairs. The Anti-Suit Injunction if granted, would improperly strip the Defendants of their statutory and contractual rights preventing them from holding the Claimant accountable. It would endorse the Claimant's strategy of operating with impunity and without transparency;
(6) The Defendants then address the allegations of bad faith made in Dr Hussain’s witness statement.
43. Given that I cannot revisit Sir Jeremy’s finding that the JVA with its DIFC-seated arbitration clause is the operative agreement points (2) and (3) fall away.
44. It is certainly the case that the relief as originally sought was unarguably a breach of the 16 September Order. The far narrower relief now sought is said to be in exercise of the Defendants’ statutory and contractual rights, but they must establish those rights in order to secure the relief claimed. The Second Defendant claims that it is entitled to the documents sought under Article 21 of the Memorandum of Association of the Company and under Clause 4.4 of O&M Agreement.
45. There is considerable dispute whether what is now claimed and which reads:
“Urgently and expeditiously, to appoint an expert committee to visit the project site under management and operation, to establish the respondent’s control over it, to record the condition of the project and all its devices, their status and number, to identify the system in use, to extract a copy of the accounting system, and to provide a report on the quantities of waste supplied and the supplying companies since the respondent assumed project management on 25 August 2021 until the present date, as well as to provide lists of those supplier companies, the contracts concluded with them, and the accounting invoices issued to and from them, and to carry out its task even by force if necessary.” falls within the ambit of those provisions.
46. It seems to me that by trying to justify those requests for information based on documents other than the JVA the Defendants are seeking to undermine the arbitral process. The information appears relevant to the claims made by the Claimant in its Request for Arbitration and as such would arguably be subject to disclosure. The alleged rights under other agreements would be irrelevant.
47. I am only concerned to determine if the actions of the Defendants run contrary to the agreement to arbitrate. I am not concerned whether the Defendants say they are relevant to proceedings they say they may contemplate in the future.
48. The appropriate forum to make the document requests is the one to which the parties have agreed, namely the DIAC Arbitration.
49. There is no prejudice to the Defendants in enforcing the bargain made. The DIAC Tribunal (or an Emergency Arbitrator) will have all the powers necessary to protect their interests. The suggestion that the Application is an abuse of process, designed to obstruct the Defendants’ legitimate exercise of their shareholder rights and to prevent scrutiny of the Claimant’s mismanagement and financially prejudicial conduct is therefore demonstrably false.
50. Finally, it unnecessary for me to address the parties’ mutual allegations of bad faith as they are not material to my decision.
51. In all the circumstances I find that the Defendants have failed to show good or strong reasons why the agreement to arbitrate should not be enforced. I will therefore make an order as set out at page 1093 of the hearing bundle save that the penal notice should be amended to delete the reference to prison and should read “AND YOU MAY BE REFERRED TO THE ATTORNEY GENERAL OF DUBAI, FINED OR HAVE YOUR ASSETS SEIZED.”
52. Turning to costs, the Claimant seeks its costs in the sum of AED 195,155. The Defendants ask me to reserve the costs until the end of the arbitration proceedings. Given that I have found that the Defendants have acted in breach of Orders of this Court I consider that this is a case for an immediate costs order.
53. The hourly rates charged fall within Registrar’s Direction No. 1 Of 2023 – Indicative Hourly Legal Charges. I can see that a certain amount of midnight oil has understandably been burned by three fee-earners. I am content to award the Claimant its claimed costs in full.
Issued by:
Hayley Norton
Assistant Registrar
Date of issue: 21 October 2025
At: 3pm
