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Area of Law: UAE & DIFC Litigation
Rupert Reed KC and Gregor Hogan acted for the successful respondent in the landmark DIFC Court of Appeal judgment in Nael v Niamh [2024] CIFC CA 015 (9 January 2025).
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Landmark Judgment from the DIFC Court of Appeal
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Permission to appeal was granted in China State Construction Engineering Corporation (Middle East) (L.L.C.) v Zaya Living Real Estate Development L.L.C and others [2023] DIFC ENF 316 (10 July 2024) this month, leaving the Court of Appeal of the Dubai International Financial Centre (“DIFC”) to decide who can be forced to answer questions about a company’s means of satisfying an unpaid judgment debt. The appeal relates to the scope of RDC 50.2(2), which states that the court may require an “officer” of a corporate body to attend court to answer questions about its means or other matters about which information is needed to enforce a judgment or order against a corporate judgment debtor. The appeal is therefore expected to have implications for the interpretation of the identical English provision of CPR 71.2(b). The DIFC Court of Appeal will review the decision of the DIFC Court of First Instance that a partner in a UAE-incorporated LLC holding 99% of its share capital – who has also held herself out as its ‘CEO’ – was not an “officer” under RDC 50.2(2). The appeal will therefore determine the meaning of “officer” in that RDC 50.2(2), joining a line of authorities on its English equivalents including Société Générale du Commerce et De L’Industrie en France v Johann Maria Farina & Co[1904] 1 KB 794 and Vitol SA v Capri Marine Ltd [2009] Bus. L.R. 271 (QBD). Creditors seeking to enforce judgments against companies will no doubt be hoping that the result of this appeal, expected to be heard later this year, improves their overall chances. Rupert Reed KC and Max Marenbon represented China State in its application for permission to appeal in the DIFC Court of Appeal, instructed by Daniel Xu, Gillian Flannighan and Hala Haddad of Eversheds Sutherland (International) LLP.
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Zoe O’Sullivan KC and Gregor Hogan acted in the DIFC Court for the successful respondent in Al Buhaira National Insurance Co v Horizon Energy LLC CFI 098/2021 (9 November 2022), obtaining the dismissal of Al Buhaira’s application for an anti-suit injunction preventing Horizon from pursuing parallel proceedings in Sharjah. This important judgment contains valuable consideration of the role of comity when the DIFC Court is called upon to address conflicts of jurisdiction between the different courts of the UAE.
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On 10 January 2022, Mr Justice Henshaw handed down judgment in Barclays Bank Plc v Shetty [2022] EWHC 19 (Comm) which is of interest to litigators facing adjournment applications and those seeking to enforce foreign judgments in England at common law.
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Zoe O’Sullivan KC and Gregor Hogan acted for the successful claimants in the first Dubai International Financial Centre Court case to establish definitively that the DIFC Court has jurisdiction to grant freezing and asset disclosure orders in support of foreign proceedings: Lateef v Liela [ARB 17 2020], 13 December 2021.
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In Cesfin Ventures LLC v Ghaith Al Qubaisi, Rupert Reed KC and Gregor Hogan obtained a worldwide freezing order in the Chancery Division against a director and shareholder of a UAE conglomerate in support of New York proceedings against him as “alter ego” of the UAE holding company, alternatively in setting aside fraudulent transfer to himself and others of company assets to frustrate enforcement of the award rendered in an ICC arbitration seated in New York.
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In Credit Europe Bank (Dubai) Ltd v. (1) NMC Trading LLC (2) NMC Healthcare LLC (3) Bavaguthu Raghuram Shetty [2020] DIFC CFI 031, Rupert Reed KC and Gregor Hogan acted for the major Dutch Bank, CEBD, to obtaining a worldwide freezing order against Dr BR Shetty, founder of the troubled NMC Group. The decision also confirmed that an applicant need not demonstrate any assets of the respondent in the jurisdiction of the DIFC to obtain a worldwide freezing order. Rupert and Gregor represented CEBD at the trial of its claim against Dr Shetty in September 2021.
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Rupert Reed KC and Gregor Hogan acted for the Sarjah Elecricity and Water Authority in FAL Oil Company Ltd v Sarjah Electricity and Water Authority. The case involved the challenging of the recognition and enforcement in the DIFC of a Sarjah court judgment on the basis of inter-Emirate immunity. This is the first time the DIFC Court considered the concepts of sovereign immunity within the UAE.
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In Basin v Rouge CFI 057/2018, James Weale appeared in the last in-person hearing in the DIFC Court before lockdown. Following a trial, James obtained judgment for the claimant in a claim under a guarantee agreement: [2018] CFI 057. The Court gave guidance on the extent to which variations to underlying obligations affect the validity of an associated guarantee. James also successfully defeated a jurisdiction challenge submitted to the Joint Judicial Committee (Cassation No. 9 of 2019).
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Rupert Reed KC and James Weale acted for the Claimant bank in a US$30m fraud claim against various defendants in proceedings in the DIFC in SBM Bank (Mauritius) Ltd v Renish Petroleum FZE (CFI 054/2018). Having successfully obtained summary judgment against the first two defendants, the trial against the third defendant has been listed in December 2021. A committal application against the first two defendants took place in January 2021. Please click here to view the judgment.
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Grand Valley General Trading LLC v GGICO Sunteck Ltd DIFC CFI 044/2018, DIFC CA 007/2019 concerns a joint venture dispute in relation to a property development in the Burj Khalifa area in on-shore Dubai. Rupert Reed KC obtained judgments from the DIFC courts on issues as diverse as whether a non-party 50% joint venture partner had standing to apply to set aside a default judgment for the dissolution of the joint venture company; the test of desirability under RDC 20.7 O for joining a new party; and whether the DIFC Courts had jurisdiction over the dispute, including the power to stay proceedings in favour of arbitration under Article 13 of the Arbitration Law.
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Rupert Reed QC (now KC) and Zoe O'Sullivan QC (now KC) represented the successful claimant in YYY Ltd v ZZZ Ltd [2017] DIFC ARB 005, a landmark decision of the DIFC Court refusing to recognise a decision of the highest Dubai national court on public policy grounds. The DIFC Court held that the Dubai Court of Cassation had breached its obligations under the New York Convention by applying its own law to determine the validity of the clause, rather than the law chosen by the parties. This reaffirms the pro-arbitration bias of the common law courts, and will have importance for arbitration practitioners beyond the DIFC.
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