September 26, 2025 Arbitration - Orders
Claim No: ARB 035/2025
IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
ORTON
Claimant/Applicant
and
(1) OAKES
(2) ODYSSSEUS
(3) ORIEL
(4) ORMAND
Defendants/Respondents
ORDER WITH REASONS OF H.E. JUSTICE SHAMLAN AL SAWALEHI
UPON the Arbitration Claim dated 19 September 2025 (the “Claim”)
AND UPON the Claimant’s Application No. CFI-035-2025/1 dated 22 September 2025 seeking leave pursuant to Rule 9.31 - 9.33 and Rule 43.11 of the Rules of the DIFC Courts (the “RDC”) for alternative service of the claim bundle (the “Application”)
AND UPON considering the submissions and the supporting exhibits made by the Claimant’s counsel
IT IS HEREBY ORDERED THAT:
1. The Application is dismissed.
2. The Claimant shall serve the Claim in accordance with the applicable rules on service under the RDC.
3. Costs of the Application shall follow the event.
Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 26 September 2025
At: 2pm
SCHEDULE OF REASONS
1. This is the Claimant’s Application for permission to effect alternative service of the Claim documents pursuant to RDC 9.31-9.33 and RDC 43.11.
2. The Respondents to be served comprise one corporate party and three individuals who are presently members of the arbitral tribunal.
Legal Framework
3. RDC 9.31 confers a discretion to authorise service “by an alternative method” where there is good reason to do so. The discretion must be exercised consistently with the Overriding Objective in RDC 1.6 to deal with cases justly and proportionately.
4. RDC 43.11 addresses service in arbitration claims, and RDC 43.14 - 43.16 require, in challenges under Article 19(3), that each arbitrator and each other party to the arbitration be named as defendants. Those provisions do not, however, relax the threshold under RDC 9.31 or convert alternative service into a default position.
5. The Court also has regard to the principle of minimal curial intervention in arbitration, reflected in Article 10 of the DIFC Arbitration Law. Whilst Article 19(3) provides an express statutory avenue for court involvement, directions sought against sitting arbitrators must be approached with particular caution so as not to undermine arbitral autonomy or the appearance of judicial neutrality in the supervisory role.
6. The Application is supported by the Second Witness Statement of Mr Othmane and exhibits. The principal grounds advanced are:
(a) the Defendants are located in four jurisdictions (Germany, Nigeria, Switzerland and Hong Kong), so formal service would involve delay, cost and uncertainty;
(b) email has been the uniform mode of communication in the arbitration and email addresses for all Defendants are identified; and
(c) it is said the First Defendant has requested the arbitral tribunal to move the seat to London, with a risk of prejudice to the Court’s supervisory jurisdiction if service is delayed.
Analysis
(1) The “good reason” threshold
7. The touchstone under RDC 9.31 is whether there is good reason to depart from ordinary service rules, having regard to whether the proposed method is reasonably likely to bring the proceedings to the defendant’s attention, proportionality, and fairness to all parties. The burden lies on the Applicant.
8. The Claimant has not established that service via arbitration counsel of record is appropriate here. No evidence is provided that those counsel are authorised to accept service of DIFC Court proceedings on behalf of the First Defendant, as opposed to acting in the separate arbitral process. Authority to receive arbitral correspondence does not, without more, constitute authority to accept court service.
9. As to email service on the arbitrators, the fact that email is used for arbitral communications does not, by itself, supply “good reason” to authorise court service by that route. The proposed method would compel service on sitting adjudicators in ongoing proceedings. That is an exceptional step and requires a clearly demonstrated necessity and suitability, beyond convenience.
(2) Efficacy and reliability of the proposed method
10. I am not satisfied, on the present evidence, that the proposed email addresses constitute reliable addresses for court service within the meaning of RDC 9.31. While the addresses are in use for arbitral communications, there is no evidence of consent to court service, no confirmation of monitoring for the purpose of litigation service, and no assurance that any applicable local law constraints would be respected (cf. RDC 9.53 - 9.56 regarding service outside Dubai).
11. The absence of any attempt to obtain consent to accept service (from the corporate party or the arbitrators), or to demonstrate that ordinary permissible methods are impracticable in the circumstances of this case, militates against the exercise of discretion.
12. The mere fact that service by ordinary means may be slower does not satisfy the “good reason” threshold. Convenience cannot override the structured safeguards of the RDC.
(3) Urgency and alleged prejudice
13. The asserted urgency rests on the possibility that the arbitral tribunal may determine to relocate the seat. That remains contingent and has not been shown, on the evidence, to be imminent or inevitable. The Court’s supervisory jurisdiction remains engaged while the seat is DIFC; speculation as to a future decision by the tribunal does not, without more, justify dispensing with ordinary service requirements.
14. In any event, the RDC already contain tools for urgency, such as applications for expedited service directions under Part 23, which the Claimant has not invoked. The Court cannot be invited to displace the default service regime merely on the basis of anticipated delay when procedural mechanisms for expedition are available but unused.
15. Moreover, even crediting a measure of urgency, the application does not demonstrate why targeted steps consistent with the RDC would be inadequate, or why alternative service is necessary at this juncture.
(4) Proportionality and comity
16. Authorising email service on sitting arbitrators is a measure the Court will reserve for clear cases where necessity and efficacy are compellingly established. That standard is not met here. The ordinary mechanisms for service outside Dubai remain available. Nothing in the materials submitted show that those routes are unworkable or that resort to them would cause irreparable prejudice.
17. It is particularly important to avoid the perception that the Court is directing service upon arbitral adjudicators in a manner that could be seen to compromise their independence or embroil them prematurely in parallel judicial proceedings. Such perceptions would be inconsistent with the supervisory and supportive role envisaged by the DIFC Arbitration Law.
18. The balance of proportionality and international comity therefore favours adherence to ordinary service rules, particularly where members of an arbitral tribunal are named defendants.
19. Finally, permitting alternative service in the circumstances presented would risk setting a precedent whereby parties routinely seek to circumvent the established service regime in arbitration-related cases. That would be contrary to the policy of the Arbitration Law and RDC, which require exceptionality and a rigorous evidential foundation for such relief.
Conclusion
20. I am not satisfied that the Claimant has shown good reason to authorise the proposed alternative service under RDC 9.3.
21. Costs of the Application will follow the event.
