Claim No: CFI 009/2025

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

STEPHENSON HARWOOD MIDDLE EAST LLP

Claimant

and

MARK A B CAPITAL INVESTMENT LLC

Defendant

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

UPON the Defendant’s Application No. CFI-009-2025/3 dated 29 October 2025 made pursuant to Part 12 of the Rules of the DIFC Courts (“RDC”) challenging the jurisdiction of the Court and, alternatively, seeking a stay of proceedings in favour of arbitration (the “Jurisdictional Challenge Application”)

AND UPON reviewing the parties’ submissions in relation to this Jurisdictional Challenge Application

AND UPON noting that the parties agreed that the Jurisdictional Challenge Application be determined without a hearing

AND UPON considering the RDC, the DIFC Arbitration Law No. 1 of 2008, and Dubai Law No. 2 of 2025

IT IS HEREBY ORDERED THAT:

1. The Jurisdictional Challenge Application is dismissed.

2. The Defendant shall pay the Claimant’s costs of the Jurisdictional Challenge Application. The Claimant shall submit their statement of costs not exceeding three pages with five days of this Order.

Issued By:
Delvin Sumo
Assistant Registrar
Date of issue: 25 December 2025
At: 1pm

Introduction

1. This is an order determining of the Defendant’s Jurisdiction Application dated 29 October 2025 the “Jurisdictional Challenge Application”) by which the Defendant seeks:

2. The Jurisdictional Challenge Application is opposed by the Claimant in its entirety. The parties have agreed that the Jurisdictional Challenge Application should be determined without a hearing and on the papers.

3. For the reasons set out below, the Defendant’s Jurisdictional Challenge Application is dismissed.

Background

4. The background and parties’ submission set out below is limited to a summary of the procedural history between the parties insofar as it is relevant to the determination of this Jurisdictional Challenge Application.

5. The dispute arises out of a professional retainer between the Claimant, a law firm established and licensed in the DIFC, and the Defendant.

6. The retainer is governed by English law and contains a dispute resolution clause (Clause 31), which provides in summary:

7. It is common ground that the arbitration option is unilateral, being exercisable only by the Claimant.

8. The Claimant commenced these proceedings on 4 February 2025. Service of the Claim Form was effected in March 2025. The Defendant did not file an Acknowledgment of Service within the time prescribed by the RDC.

9. The Defendant ultimately filed an Acknowledgment of Service on 28 May 2025. In that document, the Defendant indicated an intention to defend the Claim. However, the Defendant did not indicate an intention to contest the Court’s jurisdiction at that stage.

10. The Defendant subsequently filed a defence and engaged with the proceedings on the merits.

11. Approximately eight months after the commencement of the proceedings and several months after filing its Acknowledgment of Service and Defence, the Defendant issued the present Jurisdictional Challenge Application, challenging the jurisdiction of the DIFC Courts and seeking a stay in favour of arbitration.

The Defendant’s Submissions

12. The Defendant advances two principal grounds in support of its Jurisdictional Challenge Application.

13. The Defendant’s primary case is that the DIFC Courts lack jurisdiction to hear the Claim.

14. The Defendant submits that the only contractual basis relied upon by the Claimant is Clause 31 of the parties’ agreement, which provides for jurisdiction in the DIFC Courts subject to options reserved to the Claimant.

15. The Defendant characterises Clause 31 as an asymmetric jurisdiction clause operating solely for the benefit of the Claimant.

16. It is submitted that the clause lacks mutuality and reciprocity, in that the Defendant is confined to the DIFC Courts while the Claimant retains the ability to commence proceedings in other courts or to elect arbitration.

17. The Defendant contends that this structure creates uncertainty as to the agreed forum and undermines the parties’ consensus as to jurisdiction.

18. On that basis, the Defendant argues that the Claimant’s decision to commence proceedings in the DIFC Courts should be scrutinised and that the jurisdiction clause should be treated as unenforceable.

19. In the alternative, the Defendant relies on Clause 31(c) of the agreement, which provides for arbitration under the LCIA Rules with the seat in the DIFC. The Defendant submits that Clause 31(c) constitutes a valid and binding arbitration agreement within the meaning of the DIFC Arbitration Law No. 1 of 2008.

20. It is contended that the existence of that arbitration agreement engages Article 13 of the DIFC Arbitration Law. The Defendant submits that the Court is therefore required to stay the proceedings in favour of arbitration.

21. The Defendant further submits that the unilateral nature of the arbitration option does not preclude the grant of a stay.

The Claimant’s Submissions

22. The Claimant resists the Jurisdictional Challenge Application in its entirety. The Claimant relies on both procedural objections and substantive grounds. As a preliminary matter, the Claimant submits that the Jurisdictional Challenge Application is procedurally defective.

23. The Claimant contends that the Jurisdictional Challenge Application was not brought within the time required by RDC 12.4.

24. The Claimant further submits that the Jurisdictional Challenge Application is unsupported by evidence, contrary to the requirements of the RDC.

25. In addition, the Claimant submits that the Defendant has, by its conduct, submitted to the jurisdiction of the DIFC Courts. In that regard, reliance is placed on the Defendant’s filing of an Acknowledgment of Service indicating an intention to defend the Claim.

26. The Claimant also relies on the Defendant’s failure at that stage to clearly contest jurisdiction in the manner prescribed by the RDC.

27. The Claimant further relies on the Defendant’s subsequent participation in the proceedings, including the filing of a Defence addressing the merits of the Claim.

28. On the merits, the Claimant submits that the DIFC Courts have jurisdiction over the Claim on multiple independent bases.

29. The Claimant submits that jurisdiction arises pursuant to Article 14(A)(1) of Dubai Law No. 2 of 2025, on the basis that the Claimant is established and licensed in the DIFC.

30. The Claimant submits that jurisdiction also arises pursuant to Article 14(B) of the same law, by reason of a valid and binding jurisdiction agreement between the parties.

31. In response to the Defendant’s challenge to the jurisdiction clause, the Claimant submits that asymmetric jurisdiction clauses are recognised and enforceable under both English law and DIFC law. The Claimant submits that there is no principle of law which renders such clauses unenforceable by reason only of asymmetry or lack of reciprocity

32. The Claimant further submits that the professional nature of the parties’ relationship does not give rise to any recognised exception to the general enforceability of such clauses.

33. The Claimant also submits that the principles governing the exercise of contractual discretion are not engaged by the commencement of proceedings in an expressly agreed forum.

34. In relation to the alternative application for a stay, the Claimant submits that Clause 31(c) does not confer any right on the Defendant to commence arbitration.

35. The Claimant submits that, in the absence of such a right, the Defendant cannot compel arbitration or require the Court to stay the proceedings.

36. The Claimant further submits that, in any event, the application for a stay was brought after the Defendant had submitted statements on the substance of the dispute.

37. On that basis, the Claimant submits that the statutory requirements of Article 13 of the DIFC Arbitration Law are not satisfied.

Discussion

38. The Jurisdictional Challenge Application raises the following issues:

A. Procedural Admissibility and Submission to Jurisdiction

39. RDC Part 12, specifically RDC 12.4 provides that an application disputing the Court’s jurisdiction must be made within 14 days after filing an acknowledgment of service and must be supported by evidence.

40. The Defendant filed its Acknowledgment of Service on 28 May 2025. The present Jurisdictional Challenge Application was not issued until 29 October 2025, well outside the time permitted by the RDC.

41. The Defendant has provided no persuasive justification for this delay.

42. Further, the Defendant’s conduct is inconsistent with a party maintaining a jurisdictional objection. The Defendant:

43. Such conduct constitutes submission to the jurisdiction of the Court. A party cannot, having taken substantive steps in the proceedings, later seek to invoke RDC Part 12 as a means of undoing the process.

44. On this basis alone, the Jurisdictional Challenge Application falls to be dismissed.

B. Statutory Jurisdiction of the DIFC Courts

45. Even if the procedural defects were overlooked, the Defendant’s jurisdiction challenge fails on the merits.

46. Article 14(A)(1) of the New Court Law confers jurisdiction on the DIFC Courts where a claim is brought against an entity established or licensed in the DIFC. The Claimant plainly falls within that category.

47. That statutory basis of jurisdiction is independent of, and unaffected by, any contractual jurisdiction clause. The Defendant’s submissions do not engage with this point in any meaningful way.

48. Accordingly, the DIFC Courts have jurisdiction irrespective of Clause 31.

C. Enforceability of the Jurisdiction Clause

49. The Defendant’s argument that the jurisdiction clause is unenforceable due to its asymmetric nature is without merit.

50. Asymmetric jurisdiction clauses are well recognised and enforceable under English law and DIFC law. The attempt to characterise the clause as void for uncertainty or lack of mutuality is misplaced. The clause clearly identifies the DIFC Courts as the agreed forum, subject to defined options reserved to the Claimant. That does not render the agreement uncertain.

51. Nor does the invocation of principles governing the exercise of contractual discretion assist the Defendant. The Claimant’s commencement of proceedings in the DIFC Courts, a forum expressly agreed between the parties and closely connected to the Claimant’s establishment, cannot plausibly be characterised as arbitrary or irrational

52. I am satisfied that the jurisdiction clause is valid and enforceable and provides a further basis for jurisdiction pursuant to Article 14(B) of the New Court Law.

D. The Arbitration Stay Application

53. The Defendant’s alternative application for a stay in favour of arbitration is also unsustainable.

54. Article 13 of the DIFC Arbitration Law requires the Court to stay proceedings only where a party requests a stay no later than when submitting its first statement on the substance of the dispute.

55. The Defendant filed a Defence before bringing this Jurisdictional Challenge Application. The statutory threshold has therefore not been met. In addition, while unilateral arbitration clauses may be valid, they do not entitle the non-beneficiary party to compel arbitration or to require the Court to stay proceedings where the beneficiary has elected to litigate.

56. The Defendant’s Jurisdictional Challenge Application is procedurally barred, legally misconceived, and without merit. The DIFC Courts have jurisdiction under statute and contract. The Defendant has submitted to that jurisdiction. No basis for a stay exists.

57. For the reasons set out above, the Jurisdiction Challenge Application is dismissed.