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.

This was an insurance claim in which Horizon claimed an indemnity from Al Buhaira in respect of the loss of a vessel which was appropriated from its mooring by the Iranian navy. When AL Buhaira rejected the claim, Horizon filed a complaint with the Insurance Authority, as mandated by the Federal Insurance Law.   In the meantime, Al Buhaira brought proceedings for a negative declaration in the DIFC Court. The jurisdiction clause in the insurance policy read: “This Contract shall be governed by and construed in accordance with the English Law and each Party Agrees to submit to the exclusive jurisdiction of the courts of the United Arab Emirates. The arbitration agreement shall also be subject to the law and jurisdiction of the United Arab Emirates.”   Justice Roger Giles found that this amounted to a non-exclusive choice of jurisdiction which included the DIFC Court as well as the courts of other Emirates, and that it was not an abuse of process for Al Buhaira to bring proceedings in the DIFC Court: see Al Buhaira v Horizon CFI-098-2021 (27 April 2022). This decision is currently under appeal.

Following the Giles J judgment, the Insurance Authority ruled that it had no jurisdiction over Horizon’s complaint, and Horizon challenged this ruling in the Court of Sharjah in accordance with Article 5 of the Insurance Law. However, Al Buhaira then sought an anti-suit injunction to prevent Horizon from proceeding with its challenge in Sharjah on the grounds that it was vexatious and abusive for Horizon to bring proceedings in parallel with Al Buhaira’s claim in the DIFC Court.

HE Justice Ali Al Madani dismissed Al Buhaira’s application for an anti-suit injunction, holding that it was not abusive and vexatious for Horizon to continue its proceedings in Sharjah. The clause was a non-exclusive jurisdiction clause which permitted proceedings to be brought in more than one jurisdiction. In the circumstances, for proceedings to be vexatious and oppressive there had to be something more than just parallel proceedings. The DIFC Court should be cautious about interfering with the process of another court on grounds of comity. It should be especially slow to interfere where, as in the present case, any conflict between a judgment of the DIFC Court and the Sharjah Court could ultimately be resolved by the Union Supreme Court. The Court cited and applied the reasoning of a number of leading decisions of the English Court of Appeal on anti-suit injunctions including Deutsche Bank v Highlander [2010] 1 WLR 1023 and Star Reefers Pool Inc v JFC Group Ltd [2012] EWCA Civ 14, while distinguishing the decision of Justice Wayne Martin in Emirates NBD PJSC v KBBO CPG Investment [2020] FI 045 (9 August 2021) on its facts.

View the judgment here.