IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

(1) NADIL
(2) NOSHABA

Claimants/Applicants

and

(1)NAMEER
(2) NASEEMA

Defendants/Respondents

ORDER WITH REASONS OF H.E. DEPUTY CHIEF JUSTICE ALI AL MADHANI

UPON the Order with Reasons of H.E. Deputy Chief Justice Ali Al Madhani dated April 2025 dismissing the Claimants’ urgent ex parte application dated April 2025 for lack of jurisdiction (the “Order dated April 2025”)

AND UPON reviewing the Claimants’ Appeal Notice dated April 2025 seeking permission to appeal the Order dated April 2025 (the “Permission Application”)

AND UPON reviewing Part 44 of the Rules of the DIFC Courts

IT IS HEREBY ORDERED THAT:

1. The Permission Application is granted on the ground that the Claimants have demonstrated that there is a compelling reason as to why the appeal should be heard.

2. The costs of the Permission Application shall be costs in the appeal.

Issued By:
Hayley Norton
Assistant Registrar
Date of issue: April 2025
At: 11am

1. This Application is brought by the Claimants seeking permission to appeal the Order dated April 2025, refusing the ex parte application dated April 2025 for lack of jurisdiction as per Dubai Law No. 2 of 2025 (the “New Law”).

2. The Claimants, in response to the two interpretations within the Order of the ex parte application, make clear that the intention was to apply for a “fresh claim” for interim relief, and not an enforcement of the existing interim orders from the Foreign Courts.

3. Two grounds of appeal are submitted against the Order – the first is that I erred in finding that the DIFC Court lacked jurisdiction, and the second is that jurisdiction is reasonably arguable. As the grounds are materially similar, they will be addressed together.

4. Rule 44.19 of the Rules of the DIFC Courts (the “RDC”) governs applications for permission to appeal decisions:

This will guide my considerations of the Application.

Grounds of Appeal

5. The primary errors alleged by the Claimants are that I failed to consider Articles 15(4), 31(4) and the relevant elements of Article 14(7) of the New Law in the Order, and finally that I erred in finding that enforcement of foreign judgments in the DIFC Court required a direct link to the DIFC.

6. To focus the interpretation of the ex parte application to the relevant articles of the New Law, I identified the gateways through which the application would have to pass through in order for the DIFC Courts to assume jurisdiction as per Articles 14(A)(7) and 31(2). This intention appears to be understood at [13] of the skeleton argument dated April 2025. In my view, in order to consolidate the old and new laws on jurisdiction, the original ex parte application relied on unnecessary potential gateways.

7. This consolidation forms the basis of the appeal. The Claimants submit that the context of the old law on jurisdiction must be relied on to correctly interpret the New Law, as the language of the legislation is materially unchanged and the interpretation in the Order creates a dramatic restriction in the Court’s powers that would undermine prior developments.

8. I agree with the Claimants that, under the old law, being Articles 5(A)(1)(e) and 7(6) of Dubai Law No. 12 of 2004 (the “JAL”), and Article 24 of the DIFC Law No. 10 of 2004, the ex parte application would have succeeded. Case law under the old law made it clear that assets did not have to be within the DIFC, and the power to grant interim remedies was not reliant on a direct link to the DIFC having to be established.

9. The Claimants submit that this line of interpretation should continue with the New Law, as the phrases “within the DIFC” and “inside the DIFC” appear in Articles 15(4) and 31(4) of the New Law and Article 7(6) of the JAL. It was well established that, for the sake of public policy, interim relief is not restricted to DIFC-assets.

10. Orders – such as the one sought in the ex parte order – have been made over assets within Dubai but outside the DIFC. The Claimants submit that this gateway is preserved by Article 14(A)(7) of the New Law as it confers jurisdiction over “claims and applications over which the DIFC Courts have jurisdiction under the DIFC Law, DIFC Regulations, and the legislation in force in the Emirate”, and parties may be added to proceedings where “there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings and it is desirable to add the new party so the Court can resolve that issue” as per RDC 20.7(2) .

11. To advance their position, the Claimants also submit that the anticipated judgment from the Foreign Proceedings will be enforceable within the DIFC in the future, irrespective of the location of the Respondents’ assets, and so the precedent set in Carmon Reestrutura-Engenharia E Serviços Técnicos Especiais, (SU) LDA v Cuenda [2024] CA 003 applies:

“The grant of a jurisdiction to recognise and enforce a foreign judgment must encompass, if only by implication, the grant of power necessary to prevent that jurisdiction from being thwarted. The DIFC Court has express jurisdiction to recognise and enforce foreign judgments. The jurisdiction is thwarted if a party defendant to a foreign proceeding which may yield such a judgment can dissipate its assets whether within the DIFC or otherwise.”

12. The Claimants also argue that Article 15 outlines the appropriate gateways for fresh claims, not Article 14. Article 15 of the New Law confers jurisdiction on the DIFC Courts to “hear and determine applications for interim or precautionary measures” related inter alia to “[a]pplications, claims, or current or future arbitral proceedings brought outside the DIFC seeking suitable precautionary measures within the DIFC”. On plain reading, the Claimants submit that this means the DIFC Court has jurisdiction to hear and determine applications for interim relief for claims brought outside the DIFC, which is the same as the old law. The reliance, therefore, on Article 14(7) in the Order is misguided as the Claimants’ alternative case for jurisdiction was not premised on an international treaty or convention.

13. A similar vein of opposition is made to the application of Article 31 in the Order. The Claimants submit that this analysis is not relevant as Article 31(4) offers a separate and distinct basis for jurisdiction.

14. Finally, the Claimants offer that a “reasonably arguable” case for jurisdiction is sufficient for the DIFC Court to confer jurisdiction as per Credit Suisse (Switzerland) Limited v Ashok Kumar Goel [2020] DIFC CA 008 (4 October 2020):

“However, where the CFI is of the view that the question of jurisdiction is reasonably arguable and that there are questions of fact and/or questions of law the preferable course is for the CFI to grant the interim relief and determine the question of jurisdiction after hearing argument from both the claimant and the Defendants.”

Therefore, the question of jurisdiction should have been decided at the return date, with the sought orders granted in the interim.

15. In accordance with RDC 44.19(2), a compelling issue has been raised regarding the correct interpretation of the New Law and its application to the enforcement of foreign orders and the incitement of “fresh claims” based on foreign orders, where there may not be a direct link to the DIFC. Under the old law, the decision is clear; the ex parte application would have succeeded as it met the general requirements for the orders sought, as expressed at paragraph 10 of the Order, and jurisdiction would have been assumed pursuant to the JAL. Under the New Law, the jurisdiction of the DIFC Courts to do so remains unclear. Hence, a compelling public policy reason is raised to send the issue to the Court of Appeal for determination.

16. I concur that this issue should be dealt with on an urgent basis due to the risk of asset dissipation in the event that it is decided that this Court is the competent court to grant the orders sought in the ex parte application. I also concur that the matter be kept private for the same reasons. This is consistent with my findings at paragraph [11] of the Order.

17. Therefore, to conclude, permission to appeal is granted pursuant to RDC 44.19(2) and the application shall be sent to the Court of Appeal for determination.