Annual Report 2022 (English)

HIS HIGHNESS SHEIKH

MOHAMMED BIN RASHID AL MAKTOUM

VICE PRESIDENT AND PRIME MINISTER OF THE UAE AND RULER OF DUBAI

HIS HIGHNESS SHEIKH

MAKTOUM BIN MOHAMMED BIN RASHID AL MAKTOUM

DEPUTY RULER OF DUBAI, DEPUTY PRIME MINISTER, MINISTER OF FINANCE, AND PRESIDENT OF THE DUBAI INTERNATIONAL FINANCIAL CENTRE (DIFC)

HIS EXCELLENCY

ESSA ABDULFATTAH KAZIM

GOVERNOR OF THE DUBAI INTERNATIONAL FINANCIAL CENTRE (DIFC)

TABLE OF CONTENTS

MESSAGE FROM THE CHIEF JUSTICE

Across the region, new courts and arbitration facilities are opening or are in the planning. It is a hugely exciting time to be in the region. Dispute resolution in the Arab world is alive and well and ready to take its place on the international stage.

It has always been the mandate of the DIFC Courts to seek out alliances; we realise that by working together to analyse future developments and opportunities and by sharing best practices we will be best able to support our respective business communities and the economic success of our respective states. This has been our experience of working with judiciaries elsewhere in the world, such that a collaborative relationship between our courts is not only for the good of the courts but, more importantly, for the good of the communities we serve.

As part of Dubai and the UAE commercial fabric, the DIFC Courts is also under an obligation to capture national priorities and to work in tandem to help realise future aspirations. The UAE government has outlined in recent years several core initiatives related to future digital economy requirements and the nation’s strategic roadmap, including a taskforce of government and business leaders to think beyond the pandemic to a digital economy.

In 2022, the DIFC Courts demonstrated its alignment with this national agenda by progressing and finalising the final elements to its Digital Economy Court (DEC) Division. Following the announcement of the dedicated Division in 2021, a global panel of lawyers and industry experts were tasked in 2022 to draft and confirm new specialised Rules, which were also subject to a 30-day public consultation.

Further due diligence on the effectiveness of the Rules also witnessed the DIFC Courts holding its inaugural virtual Moot Court. From November 26 - 27, the DIFC Courts held a virtual Moot Court, inviting 18 teams of international law students and 25 qualified judges to hold a two-day competition to test-proof the new DEC Rules across a dispute involving cryptocurrency.

Welcome to the DIFC Courts Annual Report 2022.

The transformation in commercial dispute resolution in the Arab world over the last decade has been nothing short of remarkable. But I also believe we are just at the beginning of the story.

In January 2023, under the Dubai Economic Agenda ‘D33’ launched by His Highness Sheikh Mohammed bin Rashid Al Maktoum, Vice President and Prime Minister of the UAE and Ruler of Dubai, the digital economy was identified as a major driver in this growth, with its contribution to the economy projected to reach AED 100 billion annually. As the UAE begins to nurture new digital economy verticals, the number of foreign organisations entering the market will inevitably increase. The DIFC Courts will

have a part to play in assuring these businesses that we remain on standby to resolve new types of cases and disputes.

Reviewed and approved by His Highness Sheikh Maktoum bin Mohammed bin Rashid Al Maktoum, Deputy Ruler of Dubai, Deputy Prime Minister, Minister of Finance, and President of the DIFC, in December, the new ‘Part 58’ of the DIFC Courts Rules facilitate the efficient and modern resolution of digital economy disputes, standardising the use of smart forms to provide information through a dynamic, artificial intelligence driven platform.

In line with the Courts’ paperless mandate, cases will also be conducted using advanced digital systems to expedite service to parties and enforcement, with a view to reducing the environmental impact of court proceedings.

The DIFC Courts has continued its trajectory to provide Dubai, the UAE, and the world, with a suite of dispute resolution services that truly break through the barrier of traditional public court services. Businesses that can adapt to embrace the future digital economy will do so with the knowledge that there is a sophisticated yet efficient venue to support and protect the continuity of business projects.

With the digital economy fast emerging as a prime accelerant of global business, these specialised Rules have been engineered to strengthen our mission of building a courts system that not only absorbs current dispute resolution needs but can flex to address and resolve new emerging disputes.

This strategy has been further reinforced by ensuring we blend leading judicial expertise with innovative technological implementations. In 2022, leading international judicial expertise was recruited to oversee and operate the new Court’s cuttingedge digital infrastructure and service capabilities. Under Decree No. 29 of 2022, His Highness Sheikh Mohammed Bin Rashid Al Maktoum, Vice President, and Prime Minister of the UAE, appointed Justice Michael Black of England & Wales, who will oversee the Digital Economy Court Division. I am delighted to also witness the Decree promoting His Excellency Justice Ali Shamis Al Madhani to Deputy Chief Justice.

I am also particularly proud to confirm that in 2022 the DIFC Courts issued a judgment in one of the first cryptocurrency litigation disputes in the region and one of the few reported cases anywhere in the world which addresses issues such as the safe transfer of cryptocurrency between buyer

and seller and the obligations owed by a custodian of cryptocurrency. This case gave rise to various other interesting questions such as the nature of Bitcoins, i.e., whether cryptocurrencies are considered commodities, currencies, properties, or something entirely different, and the appropriate time to value Bitcoins.

By way of reference, in 2022, the total value of claims and counterclaims across all Divisions was AED 4.4 billion, with an average case value of AED 58.3 million for cases filed with the Court of First Instance (CFI).

Statistics from 2022 confirm that the DIFC Courts continues to push ahead with operationally efficiency, driven in part, by continued investment in digital transformation. One hundred per cent (100%) of Orders and Judgements were issued in digital format in 2022, as well as over 90% of hearings conducted remotely, employing our digital infrastructure to capture this benchmark. The DIFC Courts also reconfirmed its status as the first paperless Court in the region, with 100% of internal processes and customer-facing services now operating fully digital.

Zaki Azmi Chief Justice

MESSAGE FROM THE DIRECTOR

We are witnessing a structural change from the West to the East, as the basis for economic power and the framework in which it sits changes. While financial services will continue to play a major role in economic development, there is a clear return to a more manufacturing basis as the high growth markets, such as the UAE, utilise their relative financial strength to develop their economies and societies. Pivoting alongside, we are seeing a clear strategy to aggressively advance future economy playmakers; innovation and knowledge.

This shift has resulted in increasing complexity within commercial relationships and increased the reliance they place on the legal system. Courts, increasingly faced with multi-national cases with multi-jurisdictional aspects, have to focus on quality management systems in order to improve their own performance and underpin their reputations.

Within the region, we are witnessing this combination of structural change, economic development, and legal complexity on a regular basis. The UAE is a global hub for trade between the West and the East; whether that physical goods or services. The region is increasing opening its markets up to the trade flows into Asia while, at the same time, undertaking some of the largest infrastructure projects in the world.

It is often the case that the greatest opportunities for improvement and innovation sit within the greatest challenges. As business grows, it is the responsibility of the region’s judicial system to step up to this challenge and demonstrate that it can adapt accordingly. Recognising these opportunities to further assist communities, whether individuals, SMEs, or large multi-national businesses, requires constant collaboration, innovative discussion, and the nimbleness for rapid execution.

Welcome to the DIFC Courts Annual Report 2022.

Today, the world we live in is experiencing change at an unprecedented pace. While financial and political crises may have encouraged a pause in the trend towards globalisation, it has certainly not halted it. Indeed, as we emerge from these episodes, it is clear that the dynamics of global commerce have not changed, but they have shifted.

In January 2023, His Highness Sheikh Mohammed bin Rashid Al Maktoum, Vice President and Prime Minister of the UAE and Ruler of Dubai, launched the Dubai Economic Agenda ‘D33’ with the ambitious goals of doubling the size of Dubai’s economy over the next decade. Within this comprehensive plan is a vision to transform Dubai into one of the top four financial centres in the world, and to double foreign direct investment (FDI) in the city to reach AED 650 billion over the next decade.

The DIFC Courts will have an integral role to fulfil with supporting the DIFC and Dubai’s status as a leading financial centre. Rule of law, including commercial dispute resolution, is a major driver of economic growth. Reliable, fast, and transparent

commercial dispute resolution is a key decisionmaking factor for international investors, creating a competitive advantage for countries that have efficient and transparent systems in place. The global driving force has been dictated by competition between countries for investment. When it comes to resolving disputes, businesses need certainty. It is no coincidence that the judiciaries in the Arab world that can offer this are also among the most economically successful.

Another important factor to consider is the increased societal demands and changing customer behaviour. The region’s judicial systems have never existed within a society as well informed, connected, and sophisticated as today. Users of court services demand convenience, speed and excellence for every proceeding and interaction.

The concept of quality and excellence are no longer associated with the private sector. In fact, there are increased societal expectations from the Courts to adapt to the changing expectations and behaviour of court users.

Increased digital platforms, paperless processes and virtual hearings are all now becoming the new reality. Expectations from the private sector increasingly require the bold engagement of public service. By combining a modern and flexible digital infrastructure with judicial and service excellence, the DIFC Courts will continue to set the benchmark for international commercial courts.

In 2022, the DIFC Courts developed and launched a new roadmap for 2022 -2024 with our Strategic Work Plan, aligning the Courts’ projects and initiatives to actively support federal, local and DIFC strategic objectives. The DIFC Courts plays an important role in supporting Dubai’s status as a global business hub by engendering trust, confidence, and certainty.

The DIFC Courts Strategic Work Plan adopts endto-end digital technology, ensuring court systems are smart, user-friendly, and agile enough to keep pace with global commerce. Innovative implementations will bridge barriers of language, borders, jurisdiction, and currency. AI will reduce clerical burdens, help streamline the case review methodology, create a realistic virtual presence, remove document duplications, and unlock time to take on significantly more complex tasks.

The DIFC Courts concluded 2022 with clear intent and purpose; encapsulated within a four-pillar mandate, the upgraded strategy outlines definable projects and initiatives and an ambitious drive for full

digital transformation through advanced technologies to increase the efficiency of dispute resolution. A new hyperconnected judicial network will also be developed alongside cutting-edge legal procedures and specialised Rules for enhanced accessibility to court services.

In 2022, the Court Tech Lab initiative was also activated, with companies entering a competition in conjunction with DFF’s Accelerator Programme in Area 2071. In exploring how judicial systems can be strengthened through technology, the Court Tech Lab unites individuals and companies helping to prototype and launch the advancement of court-based technology. Phase II of the Court Tech Lab initiative was concluded, with the project R&D programme launched to position Dubai as the city that pioneers new industry-specific technologies.

Phase II involved a prototyping stage for two finalists, where they received financial support, as well as access to the DIFC Courts to research, test and adapt the technology solution. The finalists were FaceKi from Bahrain and CourtCorrect from the UK, who provided solutions to their assigned challenge.

In our new digitally driven societies, we are all accumulating mass amounts of important documentation, whether it is for professional, or personal purposes. In 2022, the DIFC Courts launched a global digital vault.

The new ‘digital home for your legacy’ enables the upload and secure storing of documents ranging from insurance contracts, title deeds, Wills, and financial certificates, to images and multimedia files and can be utilised by all individuals globally.

All uploaded life admin files will be secured under the highest standards of security regulation, using multiple factors of authentication, encrypted data, personalised biometric information, and safe-keeping ledgers through advanced cryptography. Using Distributed Ledger Technology (DLT), tejouri ensures the transmission of your entire portfolio to your designated stakeholders, or loved ones, at a key time.

tejouri has been engineered to help address issues of storage and security of these documents and to enable individuals to now transfer this data to one secure location. The DIFC Courts, together with its public and private sector partners, is proud to be able to offer this distinctive service to the public, and to help contribute to a safer digital environment for all.

H.E. Justice Omar Al Mheiri Director, DIFC Courts

YEAR AT A GLANCE

AED 4,414,008,642.08

Total value of claims and counterclaims filed across all Divisions

AED 3,141,161,252.43

Total value of claims and counterclaims filed with the Civil & Commercial Division (CCD)

AED 7,027,503.73

Total value of claims and counterclaims filed with the Technology & Construction Division (TCD)

1,222,595,611.89

Total value of claims and counterclaims filed with the Arbitration Division (ARB)

100% of internal processes and customer-facing services as now operating fully paperless

472 Small Claims Tribunal (SCT) cases handled

AED 95,628.92

Average value per claim filed with the Small Claims Tribunal

Launch of the Digital Economy Court (DEC) Rules

Launch of the tejouri

FAST FACTS

of employees are UAE nationals

41% 56% 176

of the DIFC Courts team are women

819

registered law firms registered individual lawyers

First court in the world accredited to the International Standards for Service Excellence (TISSE) in 2013

First ‘smart’ Small Claims Tribunal in 2016

Region’s first fully digitally integrated e-Courtroom and Case Management System in 2016

Region’s first ‘paperless’ e-bundling solution in 2018

Region’s first fully paperless Court in 2021

First Dubai entity and first UAE Court to acquire eSeal solution Ethaq in 2021

Cooperation agreements signed with ten overseas courts, in the US, UK, China, Australia, South Korea, Singapore, Kenya, Kazakhstan, Zambia, Malaysia, and Hong Kong

Judges from across the globe including United Arab Emirates, United Kingdom, Malaysia, and Australia

CASE STATISTICS

TOTAL NUMBER OF CASES (CCD, TCD, ARB, DEC, ENF & SCT)

861 active cases

TOTAL VALUE OF CASES (CCD, TCD, ARB, DEC, & SCT) AED 4,414,008,642.08

Court of First Instance (including Civil & Commercial Division (CCD); Technology & Construction Division (TCD); Arbitration Division (ARB) and Digital Economy Court Division (DEC))

The Court of First Instance (CFI) has exclusive jurisdiction over any civil or commercial case when it relates to the DIFC. It can also hear cases when the contract in question specifies DIFC Courts’ jurisdiction (pre-dispute jurisdiction) or when both parties elect to use DIFC Courts to resolve a dispute which has already arisen (post-dispute jurisdiction). One Judge hears proceedings in the CFI.

TOTAL VALUE OF CLAIMS AND COUNTERCLAIMS (CCD, TCD, ARB AND DEC)

AED 4,370,784,368.05

AVERAGE CASE VALUE (CCD, TCD, ARB AND DEC)

AED 58,277,124.91

COURTS OF FIRST INSTANCE

121 cases

Civil & Commercial Division (CCD)

The CCD acts as a vehicle for the resolution of complex disputes arising out of civil and commercial matters. The types of disputes that can be resolved through this Division are those relating to, but not limited to, employment, breach of contract, property and tenancy, banking & finance, which require specific expertise across the broad and complex expanse of disputes of this nature. A specialist judge heads this Division and works on encouraging parties to agree on timelines for the progression of cases, as well as ensuring matters requiring a decision from the Court are dealt with expeditiously and fairly, in line with the DIFC Courts’ commitment to transparent and efficient access to justice.

In September 2022, Justice Sir Jeremy Cooke was appointed Judge in Charge of the Civil & Commercial Division.

Technology & Construction Division (TCD)

The TCD draws on specialist judges and a new set of industry-specific rules to fast-track dispute resolution, providing greater certainty to businesses in court. The Division will only hear technically complex cases.

Examples in the construction sector might include complicated engineering disputes or claims arising out of fires. Technology-related cases could include liability for cybercrime incidents, disputes over the ownership and use of data, and issues relating to emerging technologies such as artificial intelligence or connected cars.

In September 2022, Justice Wayne Martin was appointed Judge in Charge of the Technology & Construction Division.

CIVIL & COMMERCIAL DIVISION

97 cases

TECHNOLOGY & CONSTRUCTION DIVISION 3 cases

CASE STATISTICS

Arbitration Division (ARB)

Established in 2020, the Arbitration Division is mandated to accommodate the rapidly increasing number of arbitration-related cases. Similar to the Technology & Construction Division (TCD) launched in 2017, the Arbitration Division leverages dedicated judicial and registry oversight and case management expertise. Streamlining the arbitration-related cases under the new division has also led to increased efficiency of process, with the ability to swiftly review applications for interim measures and injunctive relief mechanisms.

With its extensive national, regional, and global connectivity, the DIFC Courts empowers its specialised Arbitration Division to leverage existing enforcement expertise, helping to ensure certainty of recognition and enforcement of arbitral awards.

To bolster the Arbitration Division, the DIFC Courts has also launched an Arbitration Working Group in 2020, the first court in the region to introduce such an initiative. The panel of experts are tasked with reinforcing and sharing developments and best-practices, encompassing an advisory team of arbitration professionals, bodies, centres, educational institutions, and industry-related organisations.

In February 2020, H.E. Justice Shamlan Al Sawalehi was appointed Judge in Charge of the Arbitration Division.

ARBITRATION DIVISION 21 cases

Digital Economy Court Division (DEC)

In 2021, the DIFC Courts established the Digital Economy Court to oversee sophisticated national and transnational disputes related to current and emerging technologies across areas ranging from big data, blockchain, AI, fintech, and cloud services, to disputes also involving unmanned aerial vehicles (UAVs), 3D printing, and robotics.

With the continuous growth of digital transformation across the world, trade and services inevitably integrate digital technology in their fundamental operations. Now, more than ever an innovative judicial system is key to promoting growth as well as providing security, reliability, and protection for companies and businesses.

In 2022, Justice Michael Black was appointed Judge in Charge of the DEC Division.

Small Claims Tribunal (SCT)

The Small Claims Tribunal (SCT) can hear claims within the jurisdiction of the DIFC in three situations. First, where the amount or value of the claim does not exceed AED 500,000. Second, when the claim relates to the employment or former employment of a party and the amount or value of the claim exceeds AED 500,000 and all parties to the claim elect in writing that it be heard by the SCT.

There is no value limit for the SCT’s elective jurisdiction in the context of employment claims. Third, if in the context of claims which are not employment-related, the amount or value of the claim does not exceed AED 1 million, and all parties elect in writing that it be heard by the SCT, such election can be made in the underlying contract (if any) or subsequently.

Enforcement (ENF)

SMALL CLAIMS TRIBUNAL 472 cases

TOTAL VALUE OF CLAIMS AND COUNTERCLAIMS AED 43,224,274.02

The DIFC Courts continued the successful development of domestic and international avenues for enforcing judgments and orders. Enforcement proceedings are now the second-largest type of claims in the Courts, after Court of First Instance proceedings. AVERAGE CASE VALUE AED 95,628.92

*Total number of cases across all Divisions since the DIFC Courts' inception is 6,153

HISTORICAL DATA

HISTORICAL DATA

HISTORICAL DATA

HISTORICAL DATA

Service milestones

Region’s first e-Registry

Custom built fully integrated digital Court Management System (CMS) Virtual Registry for the Wills Service

Region’s first secure ‘paperless’ e-bundling cloud-based technology

Region’s first ‘Smart’ Small Claims Tribunal (SCT) e-Service through social media and instant direct messaging for SCT

Courts of the Future Initiative with Dubai Future Foundation (DFF)

Courts of Space

World’s first Court Tech Lab initiative with Dubai Future Foundation

Digital Economy Court Launch of tejouri

Court of the Blockchain initiative with Smart Dubai

Video-conferencing system for Wills Service

Electronic seal ‘Ethaq’

JUDICIAL & ADMINISTRATIVE EXCELLENCE

New appointments

His Highness Sheikh Mohammed bin Rashid Al Maktoum, Vice President and Prime Minister of the UAE and Ruler of Dubai issued Decree No. 29 of 2022 promoting His Excellency Justice Ali Shamis Al Madhani to Deputy Chief Justice and appointing Justice Michael Black to the Dubai International Financial Centre (DIFC) Courts.

The virtual swearing-in ceremony was held in the presence of His Highness Sheikh Maktoum bin Mohammed bin Rashid Al Maktoum, Deputy Ruler of

Dubai, and President of the Dubai International Financial Centre. Speaking on the occasion, H.H. Sheikh Mohammed bin Rashid highlighted the importance of constantly enhancing the DIFC’s judicial framework in order to further raise the confidence of the local and global business community. He also stressed the significance of upholding the rule of law and maintaining the highest transparency and neutrality in the settlement of commercial and civil disputes, in accordance with the highest global benchmarks.

Digital Economy Court (DEC) Division

The DIFC Courts launched a new set of industry-first specialised Rules for its recently formed Digital Economy Court (DEC) Division.

In addition, leading international judicial expertise has been recruited to oversee and operate the new Court’s cutting-edge digital infrastructure and service capabilities. Under Decree No. 29 of 2022, His Highness Sheikh Mohammed Bin Rashid Al Maktoum, Vice President, Prime Minister of the UAE and Ruler of Dubai, has appointed Justice Michael Black of England & Wales, who will oversee the Digital Economy Court Division.

Following the announcement of the dedicated Division in 2021, a global panel of lawyers, led by Tom Montagu-Smith KC and Matthew Watson of 3VB Chambers, and industry experts, were tasked to draft and confirm new specialised Rules, which were also subject to a 30-day public consultation and finalised under the supervision of Justice Michael Black.

Reviewed and approved by His Highness Sheikh Maktoum bin Mohammed bin Rashid Al Maktoum, Deputy Ruler of Dubai, Deputy Prime Minister, Minister of Finance, and President of the DIFC, the new ‘Part 58’ of the DIFC Courts Rules will facilitate the efficient and modern resolution of digital economy disputes, standardising the use of smart forms to provide information through a dynamic, artificial intelligence driven platform. In line with the Courts’ paperless mandate, cases will also be

conducted using advanced digital systems to expedite service to parties and enforcement, with a view to reducing the environmental impact of court proceedings.

In 2021, the DIFC Courts established the Digital Economy Court Division to oversee sophisticated national and transnational disputes related to current and emerging technologies across areas ranging from big data, blockchain, AI, fintech, and cloud services, to disputes also involving unmanned aerial vehicles (UAVs), 3D printing, and robotics.

In 2022, the DIFC Courts issued a judgment in the case of (1) Gate Mena DMCC (2) Huobi Mena FZE v (1) Tabarak Investment Capital Limited (2) Christian Thurner which related to one of the first cryptocurrency litigation disputes in the region and one of the few reported cases anywhere in the world which addresses issues such as the safe transfer of cryptocurrency between buyer and seller and the obligations owed by a custodian of cryptocurrency. This case gave rise to various other interesting questions such as the nature of Bitcoins, i.e., whether cryptocurrencies are considered commodities, currencies, properties, or something entirely different, and the appropriate time to value Bitcoins.

From November 26 - 27, the DIFC Courts held a virtual Moot Court, inviting 18 teams of international law students and 25 qualified judges to hold a two-day competition to test-proof the new DEC Rules across a dispute involving cryptocurrency.

Judicial

Judges

Judicial Officer

Offer

Judicial Support Office

Senior Judicial Assistant

Judicial Assistant

Deputy Chief H.E. Justice

Justice Michael Black, England & Wales

Scotland

H.E. Justice

Maha Al Mheiri, UAE

Ayman Saey

Maitha Al Shehhi Judicial

Mariam Al Mashedadani

Registry

Ayesha Bin Kalban Registrar

Shahla Al Ghareeb

Case Progression Officer

Sharini Abdulsabur Jaji

Customer Service & Compliance Officer

Delvin Sumo Assistant Registrar

Alanood AlRiyami Case Progression Officer

Sultan AlSuwaidi Compliance Officer

Internal Audit & Business Excellence

Dulanee De Abrew

Head of Internal Audit & Business Excellence

Human Resources

Samia Al Rajaby

HR Operations & Facilities

Management Manager

Arleen Lazo

Senior HR Officer

Communications Department

Michael Byrne

Head of Communications

Maryam AlBastaki

Officer – Strategic Communications

Hayley Norton Assistant Registrar

Hamad Sulaiman Care Progression Officer

Shahin Shaikh

Senior Registry Administrator

Digital & Data

Arul Vigin Head of Digital & Data

Adil Khan

Senior Infrastructure EngineerDigital & Data

Ajaz Wani

Saeed Al Dahmani

Case Progression Officer & Baliff

Nilofer D‘souza Compliance Officer

Saba Piracha

Ancillary Services Support & Compliance Officer

Finance Department

Roserfinalyn Quinto

Head of Finance

Cherilyn Del Mundo

Accountant

Santosh Gowda

Accountant Support Staff

Kamal Hossain Courts Clerk

Simon Kabiru

Courts Clerk

Executive Administrative Operations Director’s Office

Stefan Rodrigo Courts Clerk

Ahmed Al Kamali

Government & International Relations & Chief Justice Office Manager

Cheryl Fernandes

Senior Executive Assistant to the Director

Operations Engineer - Digital & Data

Mercedes Oharriz

Senior Executive Assistant & Chief Registrar/Chief Operating Officer

H.E. Justice Omar Al Mheiri Director Amna Al Owais Chief Registrar

Reem Al Shihhe Chief Operating Officer

SERVICE EXCELLENCE

Court user service performance

ISO 9001:2015 Quality Management System

In 2022, the DIFC Courts successfully obtained re-certification by external auditors without any observations of non-conformities on the selected process samples audited. By maintaining the requirements of the ISO 9001;2015 Quality Management System Standards, we aim to continuously improve the quality of services through efficient internal and external processes, effective communication, evidence-based management decisions, employee engagement and supplier relationship to accomplish court user satisfaction.

As a part of the organisation’s performance evaluation, mystery shopper surveys were conducted to identify the issues or potential risks. Mystery shopper surveys were conducted across phone and email enquiries, and meetings (either virtual or face-to-face) to receive feedback from each mystery shopper. Overall, our client-facing team achieved an average score of 95%, an increase of 5% compared to 2021.

Practice Directions and Rules amendments

In 2022, the DIFC Courts launched:

The Registry intends to undertake a full review of the Rules of the DIFC Courts, incorporating practice directions and guidance notes to form part of the new rules in order to ensure smooth navigation for users.

Practice Note No. 1 of 2022: matters to be considered at case management conference in a DEC Claim, relating to the launch of the specialised rules of the DIFC Courts’ Digital Economy Court.

Committees

Courts’ Users’ Committee

The DIFC Courts’ Users’ Committee is an independent liaison body between the DIFC Courts and Courts users, with the brief of supporting cost effective and professional service provision. The Committee holds regular meetings and the minutes are available online.

Chairperson

Amna Al Owais, Chief Registrar, DIFC Courts

Rules Committee

The Rules Committee meets quarterly to discuss changes and improvements to the Rules of the DIFC Courts. It comprises a wide range of legal practitioners who engage with the DIFC Courts and have significant practical experience of the Rules.

Chairperson

H.E. Justice Ali Al Madhani, Deputy Chief Justice, DIFC Courts

Committee members

Ayesha Bin Kalban, Registrar, DIFC Courts

Jacques Visser, General Counsel, DIFC Authority

Muna Dandan, General Counsel, DFSA

DK Singh, Managing Partner, KBH Kaanuun

Sharon Lakhan, Head of Arbitration & Common Law Dispute Resolution, Global Advocacy & Legal Counsel

Dr. Mahmoud Hussain, Founding Partner, Mahmood Hussain Law Firm

Nicholas Braganza, Partner, Holman Fenwick Willan (Middle East) LLP

Rebecca Copley, Partner, Eversheds-Sutherland (International) LLP

Ahmed Juma AlRaeesi, Founder and Director General, Ahmed AlRaeesi Advocates & Legal Consultants

Seema Bono, Partner, Pinsent Masons LLP

Committee members

Ayesha Bin Kalban, Registrar, DIFC Courts

Adrian Chadwick, Partner, Hadef & Partners

Rita Jaballah, Partner, Al Tamimi & Co

Phillip Punwar, Barrister, Outer Temple Chambers

Alessandro Tricoli, Partner, Fichte & Co Legal Consultancy

Sheila Shadmand, Partner, Jones Day

Graham Lovett, Partner, Akin Gump Straus Hauer & Feld LLP

Deirdre Walker, Partner Norton Rose Fulbright (Middle East)

Rebecca Copley, Partner & Head of Litigation, Eversheds Sutherland

David Russell KC, Barrister, Outer Temple Chambers

Sara Sheffield, Partner, Holman Fenwick Willan

Damian Crosse, Partner Pinsent Mason LLP

Nicholas Braganza, Partner, Holman Fenwick Willan (Middle East) LLP

James Abbott, Partner, Clifford Chance LLP

Shane Jury, Partner, Addleshaw Goddard (Middle East) LLP

The DIFC Courts re-structured several committees to assist in providing an efficient, accessible, transparent and professional service to all users.

In-House Counsel Committee

Formerly the General Counsel Forum, the In-House Counsel Committee was re-launched in 2019 and continued with the mandate of for dialogue and liaison between the DIFC Courts and senior in-house counsel, with the inaugural refreshed committee held in December 2019. Each event brings together participants to share experience, examine trends and discuss global dispute resolution best practices.

Chairperson

Amna Al Owais, Chief Registrar, DIFC Courts

Deputy Chairman

H.E. Justice Nassir Al Nasser, DIFC Courts

Pro Bono Committee

The Pro Bono Committee is comprised of seven members and includes: The Pro Bono Programme Leader and six (6) lawyers who are registered with the DIFC Courts’ Register of Legal Practitioners.

Committee members

Muna Dandan, General Counsel, DFSA

Robert Lewsley, Senior Group Counsel, Standard Chartered Bank

Jacques Visser, Chief Legal Officer, DIFC Authority

Malek Al Khashashneh, Legal Director, Majid Al Futtaim Holding

Jenny Grainger, Group Legal, C&IB, Emirates NBD

Stavros Panayi, General Counsel, Careem/Uber

Hassan Bouadar, Vice President of Legal & Regulatory Affairs, Fedex & TNT Express

Dr. Abobakr Dafalla, Regional Legal Counsel, AT Kearney

Ziad Issa, General Counsel, EXPO 2020

Gabriel Falda, Assistant General Counsel, Abu Dhabi Commercial Bank (ADCB)

Ayman El Naggar, General Counsel, Emaar

Emad Farouq, Senior Legal Counsel, Dubai Land Department (DLD)

Dominic Varley, Head of Legal, Meraas

Heba Hamdy, Regional Counsel, Cisco

Dr. Nimer Basbous, Group General Counsel, First Abu Dhabi Bank (FAB)

Committee members

Hayley Norton, Assistant Registrar

Adam Bradshaw, Legal Director, DLA Piper

Peter Smith, Senior Associate, Charles Russell Speechlys

Rebecca Kelly, Managing Partner, Morgan Lewis

Zara Merali, Senior Associate, Freshfields

Dr. Maryam-Krystyna Nechaieva, Legal Counsel, Mohammed Bani Hashem Advocates & Legal Consultants

Janine Mallis, Senior Associate, Herbert Smith Freehills

eRegistry

Among the many technologies the courts have pioneered to increase access to justice, is the region’s first eRegistry in 2009, to the first digitally integrated courtroom and state-of-the-art e-Court system, as well as the region’s first ‘paperless’ e-bundling cloud solution in 2018. These early tech adoptions are now the bedrock that enables the DIFC Courts to maintain uninterrupted operations for court users.

Outreach

By increasing utilisation of our existing videoconferencing and teleconferencing facilities for applications and hearings, we are enabling court users and the public to access extensive eServices remotely from any smartphone, tablet or desktop device. This enables remote 24/7 secure case progression and administration, e-payments and practitioner registration facilities.

The DIFC Courts is committed to transparency and customer engagement. This requires regular and robust communications with stakeholders conducted via:

Pro Bono Programme

Following the lifting of the Covid-19 social distance requirements, in October 2022, the Pro Bono Programme reopened its weekly face-to-face legal clinics, providing individuals in need with the opportunity to meet with volunteer lawyers for an in-person consultation. Alongside the face-to-face clinics, remote assistance continues to be provided for those unable to attend the in-person sessions.

In 2022, the Pro Bono Programme helped support a number of Barbri students to obtain their required hours of Pro Bono work as part of their application for the New York Bar. In addition, the Pro Bono Programme hosted its Internship Programme, welcoming law students and graduates to gain an insight into the daily running and management of the Programme.

received assistance from our volunteer legal professionals

In 2022, the Programme also hosted a live webinar training series for the benefit of the volunteer legal practitioners focusing upon common legal queries and challenges handled at the Pro Bono Clinics. The series provided a detailed insight of employees’ and tenants’ rights within the DIFC.

The register of volunteer legal professionals in the Pro Bono Programme stood at

58 law firms

42 individual volunteers

The pioneering Pro Bono Programme continues with its twin aims - providing valuable free legal services to clients of the DIFC community and supporting aspiring lawyers in Dubai and across the UAE.

CONNECTIVITY

New partnerships

The DIFC Courts continued to strengthen its partner ecosystem and signed several agreements in 2022 with entities across the public and private sectors, as well as with academic institutions.

Enjaz Government Transaction Center

The DIFC Courts signed an agreement with Enjaz Government Transaction Center which served to expand the service offerings of the DIFC Courts and to support court user service preferences.

Tableegh Services

The DIFC Courts signed an agreement with Tableegh Legal Notifications Services which served to expand the service offerings of the DIFC Courts and to support court user service preferences.

Auction Apps

The DIFC Courts signed an agreement with Auction Apps Auction Organising which served to expand the service offerings of the DIFC Courts and to support court user service preferences.

Fujairah Chamber of Commerce and Industry

The DIFC Courts signed a Memorandum of Understanding (MoU) with the Fujairah Chamber of Commerce and Industry to enhance cooperation between the two parties and provide an opportunity to exchange information and experience in areas of common interest to reinforce their strategic goals and interests.

University of Sharjah

The DIFC Courts and the University of Sharjah (UoS) signed a Memorandum of Understanding (MoU) that will foster attraction and competitiveness for the next generation of law students. Under the MoU, the two parties will utilise their capabilities to exchange information, statistics, publications, magazines, periodicals and regulations governing their public service activities. The Memorandum is based on the applicable legal systems and complements the existing legal and administrative procedures in the UAE.

Outreach and engagement

An important feature of the DIFC Courts’ outreach and engagement work is welcoming delegations to Dubai and the DIFC, as well as participating in overseas trade visits and speaking at industry conferences.

Public engagements

Justices, Registry personnel, and the Executive team actively promoted the work of the DIFC Courts to business and legal communities in the UAE and internationally in 2022. The team spoke at and attended many important domestic, regional, and international conferences, including:

JAN

› World Space Risk Forum 2022

MAR

› Destination Dubai at Expo 2022

› Knowledge Summit

› International Conference on Arbitration in the Era of Globalization- 4th edition

› 12th Annual MENA Legal & Compliance Conference

› Space Arbitration Event

› United Arab Emirates University

› Space Café “33 MAY

› Digital Transformation Summit

› Practical Insights into Commercial Arbitration in the Abraham Accords Economy

› Tun Zaki Moot Competition 2022

› Inaugural Meeting of Chief Justices and Judges in charge of Technology

› Third Seminar of International Commercial Expert

› Committee of the Supreme People’s Court

› Umm Al Quwain Free Trade Zone Authority

› Gulf Disputes Seminar

› LCIA Symposium

› GITEX Global 2022

› Standing International Forum of Commercial Courts (SIFoCC) 4th Full Meeting

› Arab and International Arbitrators (AIA)

› International Construction Claims and ADR Conference 2022

› University of Sharjah

› Dubai Arbitration Week (DAW)

› Oman Commercial Arbitration Centre

› Israeli Institute of Commercial Arbitration

› Asian International Arbitration Centre

› 6th African Space Generation Workshop (AF-SGW)

› Saudi Law Conference

› Saudi Ministry of Justice

Visiting delegations

Numerous delegations of government leaders, representatives of other court systems and students visited the DIFC Courts during 2022 to learn more about our judicial system, including:

› Supreme Court of Kazakhstan

› Belgian Finance Center FinTech Belgium

› Board of Grievances, Saudi Arabia

› Minister of State for Entrepreneurship and Small and Medium Enterprises (SMEs)

› Strathmore University, Law School

› Ministry of Tolerance UAE

› Strathmore University, Law School

› University of Ajman

› Dubai Civil Aviation Authority

› Bahrain Bar Society

› The Indonesian Constitutional Court

› Ras Al Khaimah (RAK) Courts

› American University in the Emirates

› European Centre for Career Education

› Manipal Academy of Higher Education

› Emirates Bar Association

Enforcement with other regional and international courts is also rising each year and our connectivity network matures. The Registry intends on building further relationships with court systems worldwide making it possible for judgment debtors to identify points of contact within courts through our existing network.

INNOVATION

tejouri

The DIFC Courts launched a global digital vault. ‘tejouri’ was unveiled at GITEX Global, with live demonstrations showcasing the new platform’s functionality and security protocol features.

The new ‘digital home for your legacy’ enables the upload and secure storing of documents ranging from insurance contracts, title deeds, Wills, and financial certificates, to images and multimedia files and can be utilised by all individuals globally.

All uploaded life admin files are secured under the highest standards of security regulation, using multiple factors of authentication, encrypted data, personalised biometric information and safe-keeping ledgers through advanced cryptography. Using Distributed Ledger Technology (DLT), tejouri can ensure the transmission of your entire portfolio to your designated stakeholders, or loved ones, at a key time.

tejouri provides a unique platform that functions simultaneously as a cloud vault and an online safe for data, supported by a state-of-the-art onsite DIFC data centre and a secondary UAE-based backup data centre. Access to all data will be restricted to the ‘vault holder’ and the listed intended recipients, guaranteeing zero knowledge proof privacy principles.

The global repository was launched with the support of the HBAR Foundation, specialists in building Distributed Ledger Technology ecosystems, with Hedera technology being used by the DIFC Courts to construct a bespoke DLT architecture and establish access to a de-centralised trust application. Deca4 Advisory also supported the DIFC Courts with road mapping the tejouri service experience development.

In the first six months of 2022, Phase II of the Court Tech Lab initiative was launched, with the project R&D programme launched to position Dubai as the city that pioneers new industry-specific technologies.

Phase II involved a prototyping stage for two finalists, where they received financial support, as well as access to the DIFC Courts to research, test and adapt the technology solution. The finalists were FaceKi from Bahrain and CourtCorrect from the UK, who provided solutions to their assigned challenge.

Future research from the DIFC Courts will combine expertise and resources to investigate handling disputes arising out of private and public blockchains, with regulation and contractual terms encoded within the smart contract. Implications for cross-border data flows, digital and data governance, and ensuring protection and security of information for the business relationships that help drive the digital economy, are now being reviewed with accelerated intent.

For more information about the tejouri service, please visit www.tejouri.com

APPENDIX

Wills & Probate

Launched through a partnership in 2015 between the DIFC Courts and the Government of Dubai, the Wills Service was established to enable non-Muslims who are investing and living in the UAE to pass on their assets and appoint guardians for their children in line with their wishes through a Will registration service.

As a part of the UAE Government’s commitment to effectively employ advanced technologies and digital platforms to continue services to the public during COVID-19 restrictions, in 2020, the DIFC Courts leveraged its digital infrastructure to offer videoconferencing for Will registrations.

With individuals and businesses across the UAE now operating more ‘remotely’, the new video conferencing facility can be accessed via a smartphone, tablet, or desktop device, allowing residents and investors to register their Will, from the safety and comfort of their own homes. The new system now allows the Testator and two (2) Witnesses to join in on the video conferencing call from different locations.

The system also allows an approved Will to be directly uploaded to the system and to affix electronic signatures. Throughout 2022, 99% of our Will registrations were conducted virtually, transporting traditional walk-in appointments into the digital age.

Remote registration adds an additional layer of digital access to the current Virtual Registry System for Wills, which allows those living overseas to create and register a DIFC Courts Will. Investors and residents can access it from anywhere in the world and be connected, via video link, to a compliance officer sitting in Dubai.

To keep up with increasing demand and further to the DIFC Courts’ commitment to ensuring the best possible customer service standards for our clients, the Wills Service began offering registration slots on weekends, thus increasing its ability to accommodate investors and residents at their most convenient time.

TOTAL NUMBER OF WILLS REGISTERED

1196

TOTAL NUMBER OF PROBATE APPLICATIONS

22

Notable cases

Salem Mohammed Ballama AlTamimi

& Ors v Emirates NBD Bank PJSC & Ors (2021) CFI 085

A panel of trustees brought a Part 8 Claim in the DIFC Courts seeking inter alia recognition of parallel restructuring/bankruptcy proceedings in the Abu Dhabi Courts. By way of a judgment dated 11 February 2022, Justice Sir Jeremy Cooke dismissed the Trustees’ claim in full and handed down a landmark judgment regarding the operation of the DIFC Insolvency Law.

A claim was brought by Trustees seeking the DIFC Court to inter alia recognise the restructuring in bankruptcy proceedings commenced on 27 July 2021 against the debtors and joined litigants in the Abu Dhabi Court (the “Abu Dhabi Proceedings”) as foreign main proceedings under Articles 15 and 17(2) of Schedule 4 of the DIFC Insolvency Law No 1 of 2019. The Trustees also sought an order staying the DIFC proceedings and in the alternative an order under Article 20(1) of the UNCITRAL Model Law staying the commencement or continuation of proceedings in the DIFC Courts concerning the debtor’s and joined litigants’ assets, rights, obligations, or liabilities.

The Trustees brought the Claim on the basis that they were a “foreign representative” under the Model Law and were therefore entitled to apply directly to the DIFC Court for recognition (Model Law, Articles 2(d) and 9) and, that the Abu Dhabi Proceedings were “foreign main proceedings” under the Model Law because Abu Dhabi was the place where the debtor had the centre of his main interests (Model Law, Article 2(b)).Justice Cooke considered the terms “Foreign Representative” and “Foreign Proceeding” in accordance with Schedule 4 to the Insolvency Law. It was held that the terms had defined meanings which held importance in the context of the applications made by way of the Part 8 Claim. The question before the Court was in relation to the nature of the Abu Dhabi proceedings and whether they could truly be considered as a Foreign Proceeding within the meaning of the definition set out in Article 2 of the Schedule to the Insolvency Law.

At paragraph 17, Justice Cooke stated, “The definition of a “foreign proceeding” is apt to include an interim judicial or administrative proceeding, pursuant to a law relating to insolvency in which the assets and affairs of the debtor are subject to supervision by a foreign court for the purpose of reorganisation...the assets and affairs of the Debtor

and the Joined Litigants are, it appears to me, subject to the supervision of the Abu Dhabi Court in an interim proceeding pursuant to a law relating to insolvency for the purpose of reorganisation, even if no further orders have yet been made in relation to restructuring or liquidation. That is the purpose of the Commencement Order which will be followed by the Abu Dhabi Court making further orders in relation to their assets and affairs.”

Justice Cooke found that the Trustees in this case faced a particular difficulty in establishing that they met the definition of a “foreign representative” which requires such a person, whether appointed on an interim basis or otherwise, to be “authorised in a foreign proceeding to administer the reorganisation… of the debtor’s assets or affairs or to act as a representative of the foreign proceeding”. Justice Cooke found that although a Commencement Order had been made and it was said that commencement of restructuring had begun, no order had been made for any reorganisation or liquidation by the Abu Dhabi Court.

It was held that the functions of the Trustees were only to put forward proposals for restructuring for the approval of the creditors and the Court on the basis of the information gathered by them in relation to the assets and liabilities of the debtor, with a list of creditors where liability is accepted or disputed. As such, Justice Cooke held that the Trustees were not authorised to administer any reorganisation until such time as an order had been made for such reorganisation or restructuring and, could not be satisfied that the Trustees qualify as the Foreign Representative, authorised in a Foreign Proceeding to administer the reorganisation of the Debtor’s assets and affairs.

In recognition of whether the DIFC Insolvency Law permits recognition of foreign proceedings against individuals, Justice Cooke noted that there is nowhere in the Insolvency Law any provision relating to the bankruptcy of an individual in the DIFC, as opposed to a corporate entity or those involved in a limited liability partnership. Justice Cooke took the view that Article 117(1) restricts the application of Article 117(3) to Foreign Companies where their insolvency proceedings take place in the jurisdiction of their incorporation and further noted that it provides for the UNCITRAL Model Law as set out in Schedule 4 to have force in the DIFC but only in respect of foreign companies.

The consequence of this is that provisions of Schedule 4, whether relating to recognition under Chapter III or to cooperation or assistance under Chapter IV cannot apply to individuals. Justice Cooke held that the Trustees were not entitled to seek recognition or a stay of proceedings under a provision of the Model Law enshrined in Schedule 4 or the Insolvency Law. Justice Cooke found that that there was simply no jurisdiction to recognise the Abu Dhabi proceedings even if they had been brought by a foreign representative.

Given the Model Law was found not to apply to individuals the question arose as to whether it applied to the joined litigants. In relation to the jurisdiction to stay proceedings in the DIFC, Justice Cooke found that the evidence put before the Court as to the centre of main interest and location of establishment of the twenty-eight corporate bodies who were joint litigants was unsatisfactory. Justice Cooke held that the significance of the difference between the location of an entity’s centre of main interests and the location of an establishment arises because of the distinction drawn between recognition of a foreign proceeding as a foreign main proceeding and recognition as a foreign non-main proceeding. Justice Cooke concluded that recognition of foreign proceedings involving the bankruptcy of an individual is not available under the DIFC Insolvency Law and there is therefore no relevant debtor. In this case, Justice Cooke identified that as the debtor in the Abu Dhabi proceedings and the insolvency related to him, noting that no purpose would be served if the proceedings in the DIFC were to continue against him whilst staying proceedings against any corporate joined litigants who had a centre of main interest or establishments in Abu Dhabi.

The Court’s decision in this case is of great significance in establishing that the Model Law can only be invoked to recognise “foreign proceedings” involving companies and not individuals and, that where an individual applies to commence restructuring or insolvency proceedings in another jurisdiction, they cannot rely on the Model Law to have those proceedings recognised and stay the DIFC Court proceedings.

Notable cases

Gate Mena DMCC v (2) Huobi Mena FZE v (1) Tabarak Investment Capital Ltd (2) Christian Thurner (2020) TCD 001

The DIFC Court’s Technology and Construction Division considered its first cryptocurrency case in relation to a claim for failure to guard against the theft of bitcoins. It is the first DIFC claim to consider the legal status of cryptocurrency. The case came before Justice Sir Richard Field who handed down judgment on 5 October 2022 and dismissed the Claimants’ claims.

The Claim concerned the attempted sale of 300 Bitcoins (“BTC”). Justice Field found that Tabarak Investment Capital Ltd (“Tabarak”) was not liable in negligence for the loss of 300 BTC and in doing so found that the additional claims failed.

In December 2019, Gate Mena was introduced to Mr Evgeniy Morozov, a buyer, who expressed interest in purchasing 300 BTC from Gate Mena through several transactions. Gate Mena approached Tabarak to facilitate those transactions in a manner which would ensure that the BTC would be released to Mr Morozov without Gate Mena receiving payment. The material facts of the case relate to a meeting that took place on 3 October 2020 at Tabarak’s offices. The purpose of the meeting was to carry out a pre-arranged transaction by which Huobi would sell 300 BTC to Navarcon (a company registered in the Slovak Republic, as a corporate vehicle for the acquisition of, and trading in, cryptocurrencies including BTC), at a price to be fixed by reference to the wholesale prices on the cryptocurrency exchanges. On behalf of Tabarak, Mr Christian Thurner (employed by Tabark as its Director of investments) set up the wallet to receive the BTC and used the wallet to generate the twelve-word seed phrase required to access funds in the wallet.

A representative of Tabarak recorded the first six words of the twelve-word seed phrase and then passed the wallet to Mr Morozov (a Russian citizen who represented that he was acting for a group of investors which used Navarcon). Mr Thurner said that this was to allow Mr Morozov to record the second six words of the seed phrase. Mr Morozov insisted that the wallet be used for the transaction and advised that once the BTC were transferred to the wallet, it would be held in Tabarak’s safe, to which only it had access. Gate Mena transferred a total of 300 BTC to the wallet and during the course

of the day, 299.90 BTC were transferred out of the wallet and no payment was received by Mr Morozov.

The principal claim advanced was against Tabarak. Its claim against Mr Thurner proceeded on the basis that he was not acting for and on behalf of Tabarak in his dealings with Huobi but instead was acting on his own personal account. In relation to the means by which the 300 BTC were misappropriated using the wallet, Justice Field accepted the joint opinion by three experts as to the compulsory verification stage in setting up the type of Trezor Wallet brought by Mr Morozov to the meeting and found on the balance of probabilities that Mr Morozov and Mr Socin (who attended the meeting to assist Mr Morozov) obtained all of the 12 words of the seed phrase by using a scrolling facility provided by the Tezor Wallet and then used those words dishonestly to misappropriate the 300 BTC by remotely accessing the Wallet.

Justice Field found that the agreement held to have been concluded between Huobi and Tabarak never became a binding contract by reason of the failure to pay the account opening fee in advance of the transaction. The question then before the Court was to consider what enforceable legal duties Tabarak owed Huobi in respect of the events that occurred during the meeting. The Court therefore had to consider whether Tabarak and/or Mr Thurner had a non-contractual liability for the loss of the 300 BTC. In doing so, Justice Field accepted that Bitcoin are property as was held by Bryan J in AA v Unknown Persons [2019] EWHC 3556 (Comm).

In determining the claim in tort, Justice Field considered the fact that Mr Morozov insisted that the transaction be done using one of the two Trezor Wallets he had come with. Mr Thurner and through him, Tabarak, acted in the honest but mistaken belief that, if the mnemonic were split into two with Mr Morozov and Mr Socin having access only to the remaining six words of the seed phrase, neither side could get access to the 300 BTC once they had been transferred to the wallet. Like the Huobi team attending the meeting, he did not know that the Trezor wallet could be prompted to reveal the whole mnemonic phrase either by scrolling up or by deliberately inputting a small number of seed

words that were not part of the mnemonic. Justice Field found that, in acting as he did, setting up the wallet and passing it to Ms Zavyalova (employed by Tabarak to act as Mr Thurner’s assistant) and then to Mr Morozov stating, when asked, that he had no concerns about the proposed use of the Wallet because it would be locked in Tabarak’s safe, Tabarak/Mr Thurner were not in breach of an actionable duty of care owed to Huobi. Justice Field held that the relationship between Tabarak/ Mr Thurner was not sufficiently proximate for the alleged duty of care in respect of how the Trezor Wallet was handled to exist and, that the Claimants failed to establish that Tabarak/Mr Thurner owed the alleged duty of care in respect of the assurances given by Tabarak/Mr Thurner.

Tabarak was found not to be liable in negligence for the loss of the 300 BTC and flowing from that the Claimants’ additional claims failed in their entirety. It was held that Tabarak did not misuse the alleged confidential information in consideration of a claim for breach of confidence under Article 37 of the Law of Obligations. Similarly, Tabarak’s care of the BTC was held to be reasonable and as such the claim for breach under Article 71 of the Law of Obligations was rejected. Tabarak was not in breach of the standard set out in Schedule 3, para 5 of the Law of Obligations and was therefore not in breach of fiduciary duty under Article 158(1) of the Law of Obligations. The Claimants submitted that Tabarak was in negligent breach of Regulatory Obligations (GEN 4.2.2, GEN 4.2.3; and GEN 4.2.6) which the Court rejected and found Tabarak was not therefore liable for damages under Article 194 of the Regulatory Law.

The Claimants’ have appealed Justice Field’s decision on several grounds. The appeal concerns a point of law in relation to the claim for breach of confidence, a point of law and against a finding of fact in relation to the claim for breach of contract, against a finding of fact and on a point of law in relation to the claim for negligence, on a point of law in relation to the claim for fiduciary duty and in relation to serious procedural irregularity.

Notable cases

Al Buhaira National Insurance Company v (1) Horizon Energy LLC

(2) Al Buhaira International Shipping Inc (2021) CFI 098

The Claimant sought an anti-suit injunction restraining the Defendants from continuing proceedings before the Sharjah Court of First Instance and/or for an order that they discontinue those claims.

The application came before H.E. Deputy Chief Justice Ali Al Madhani at a hearing on 20 September 2022, who dismissed the application and handed down a judgment dated 9 November 2022. The case contains valuable consideration of the role of comity where the DIFC Courts is called upon to address conflicts of jurisdiction between the different courts of the UAE.

The Claimant is an insurer under a Hull and Machinery Policy and a War Risks Policy pursuant to which the Claimant insured the First Defendant and/or subsidiary and/or affiliated companies and/ or other interests. Several vessels were insured under the policies, one of which was the motor vessel “BETA” (the “Vessel”) which had an insured value of USD 70 million.

The Second Defendant is a subsidiary of the First Defendant and the owner of the Vessel. In or around December 2019, the Vessel was discovered to be missing. The Claimant notified the First Defendant of its decision to avoid the policies and on the same day issued proceedings in the DIFC Courts seeking declarations that the policies were avoided ab initio and that the Claimant was not liable under the policies by reason of their avoidance or alternatively that the First Defendant’s claim did not come within the scope of the policies.

The First Defendant challenged the jurisdiction of the DIFC Courts which was dismissed by Justice Roger Giles on 27 April 2022, who held that the DIFC Courts had jurisdiction by virtue of the Law and the jurisdiction clause in the policies. This decision was appealed and a permission to appeal application was refused by Chief Justice Zaki Azmi on 5 August 2022.

On 13 June 2022, the Insurance Authority Committee dismissed the complaints made by both Defendants and found that it had no jurisdiction over the dispute because the parties had chosen English law as the applicable law in case of a dispute and that the DIFC Courts, which was already dealing

with the claim, had valid jurisdiction over the dispute. On 7 July 2022, both Defendants commenced proceedings before the Sharjah Court seeking an order that the Insurance Authority Committee’s decision be set aside and the matter be referred to the Insurance Authority, or in the alternative, an indemnity under the policies in respect of the loss of the Vessel.

In determining the anti-suit injunction application, the Claimant’s case was that the Defendants’ conduct in bringing and continuing the proceedings before the Sharjah Court was oppressive and vexatious and that an injunction was required to prevent the Defendants from continuing to pursue those proceedings. The Claimant’s application was made on three grounds.

Firstly, the Claimant asserted that the First Defendant was taking steps in these proceedings which were intended to delay the proceedings in the DIFC Courts. Deputy Chief Justice Madhani found that the Sharjah proceedings were not oppressive or vexatious. The question for the Courts was whether the Claimant should be protected from unconscionable conduct elsewhere and not whether such conduct justified restraining the Defendants elsewhere. As such, the Deputy Chief Justice Madhani held that an anti-suit injunction constraining the Defendants from continuing the Sharjah proceeding would not be justified under such a ground.

Secondly, the Claimant submitted that the Defendant were seeking to relitigate two issues in the Sharjah proceedings: (1) whether the DIFC Courts have jurisdiction and, (2) whether an Insurance Authority Committee is a judicial tribunal. The sequence in which proceedings were issued was considered and Deputy Chief Justice Madhani found that this in and of itself was of little significance.

In determining the issues common to the DIFC proceedings and the Sharjah proceedings, Deputy Chief Justice Madhani held that overlap between the issues is to be expected where there are parallel proceedings it is for each court to decide how to deal with it.

Further, it was held that there was no basis for the DIFC Courts to interfere with the process of the Sharjah Court and that although there may be issues common to both proceedings this was not in and of itself sufficient to find vexatious and oppressive conduct which justifies granting an anti-suit injunction. Deputy

Chief Justice Madhani found that the Defendants were contractually entitled to pursue a claim in the Sharjah Court and that they maintained their objection to the jurisdiction of the DIFC Courts and that the Courts should be cautious about interfering with the process of another Courts and injuncting the Defendants on the basis of judicial advantage and comity.

Thirdly, the Claimant claimed that in the Sharjah proceedings the Defendants sought to have the same issues determined as were to be considered in the proceedings before the DIFC Courts. Deputy Chief Justice Madhani found that the DIFC Courts should be particularly slow to interfere with the process of another UAE Court to prevent the risk of conflicting judgments from occurring in the first place. The Claimant’s ground was therefore dismissed. As such, the Claimant’s application for an anti-suit injunction was dismissed in its entirety.