Commercial and Chancery Bar: Centre point
In an article entitled 'Starting from Scratch' on 29 March, 2007, Legal Week reported on the ambitious plans for the Dubai International Financial Centre (DIFC) and its Court. In the subsequent year the world's leading financial institutions have continued to pour into the centre and the list of law firms with a presence in the DIFC now include Akin Gump, Allen & Overy, Al Tamimi & Co, Ashurst, Clifford Chance, Conyers Dill & Pearman, Denton Wilde Sapte, Freshfields Bruckhaus Deringer, Linklaters, Lovells, Maples and Calder, Norton Rose, Reed Smith Richards Butler, Simmons & Simmons and Walkers. In addition, the UK law firms Kennedys and Clyde & Co, which are based in greater Dubai, have also been active in the DIFC Court. It is notable that in January the International Bar Association (IBA) established its Middle East office in the DIFC. The opening of the office was timed to correspond with the IBA's Arab regional forum's conference on Islamic finance in the Middle East. The DIFC has set its sights on becoming the world centre for Islamic finance and is itself an active investor. In June 2007, DIFC Investments listed a $1.25bn (£630m) sukuk on the Dubai International Financial Exchange, taking the total value of sukuk listed on the exchange to $10.43bn (£5.26bn) - the highest of any exchange worldwide. The DIFC has also been an active investor in international markets and acquired a 2.2% stake in Deutsche Bank, which, according to publicly-available market data, makes it the largest external strategic shareholder in the international investment bank.
March 05, 2008 at 09:05 PM
7 minute read
In an article entitled 'Starting from Scratch' on 29 March, 2007, Legal Week reported on the ambitious plans for the Dubai International Financial Centre (DIFC) and its Court. In the subsequent year the world's leading financial institutions have continued to pour into the centre and the list of law firms with a presence in the DIFC now include Akin Gump, Allen & Overy, Al Tamimi & Co, Ashurst, Clifford Chance, Conyers Dill & Pearman, Denton Wilde Sapte, Freshfields Bruckhaus Deringer, Linklaters, Lovells, Maples and Calder, Norton Rose, Reed Smith Richards Butler, Simmons & Simmons and Walkers. In addition, the UK law firms Kennedys and Clyde & Co, which are based in greater Dubai, have also been active in the DIFC Court.
It is notable that in January the International Bar Association (IBA) established its Middle East office in the DIFC. The opening of the office was timed to correspond with the IBA's Arab regional forum's conference on Islamic finance in the Middle East. The DIFC has set its sights on becoming the world centre for Islamic finance and is itself an active investor. In June 2007, DIFC Investments listed a $1.25bn (£630m) sukuk on the Dubai International Financial Exchange, taking the total value of sukuk listed on the exchange to $10.43bn (£5.26bn) – the highest of any exchange worldwide. The DIFC has also been an active investor in international markets and acquired a 2.2% stake in Deutsche Bank, which, according to publicly-available market data, makes it the largest external strategic shareholder in the international investment bank.
The DIFC aims to attract the vast wealth of the mercantile families of the region and won the award for Best Government Initiative at the Society of Trust and Estate Practitioners Private Client Awards 2007. Judges were impressed by the DIFC's new family office initiative, which is establishing a legal and regulatory framework for family offices working in the centre. A family office is currently not recognised by any other jurisdiction; however this new legislation will define a family office in a legal capacity for the first time.
Currently only the Gate District of the DIFC is fully open, yet there is already a choice of 21 cafes and restaurants and, being Dubai, shops where one can buy such essentials as a diamond-encrusted mobile telephone. Rather more prosaically, but perhaps more usefully, there is also a Boots chemist.
As one walks through the shaded terraces of the Gate District, rising above the splash of the fountains are the sounds of business being done and deals being made – mostly in English but in accents from Hong Kong to Houston. Inevitably, such a dynamic entrepreneurial environment will attract its fair share of disputes; which brings us to the growth of the court and its business.
The court now has its full complement of judges, all of who will sit in both the Court of First Instance and the Court of Appeal. The first appointments in 2005 were the Chief Justice, Sir Anthony Evans, the former Commercial Court and Court of Appeal judge and the Deputy Chief Justice, Michael Hwang SC, who was one of the first 12 Senior Counsel of the Supreme Court of Singapore and a Judicial Commissioner.
Further appointments were made in January 2008: Tan Seri Dato Siti Norma Yaakob, the first female common law judge in the UAE, and former Chief Judge of Malaya; Sir John Chadwick, who recently retired after 10 years as a Lord Justice of Appeal; Sir Anthony Colman, who was a judge of the Commercial Court from 1992 to 2007; and David Williams QC, who served as a Justice of the High Court of New Zealand.
The general business of the court has reflected the fact that the DIFC is still in its establishment phase. The court has, however, seen several applications for injunctions, the completion of its first trial, the making of its first winding-up order and the hearing of its first appeal.
The Dubai Financial Services Authority (DFSA) has made effective use of the court. In 2007, the DFSA obtained injunctions against fraudsters who were operating fictitious websites, called the Dubai Options Exchange, the United Arab Emirates Commodity Futures Board and Cambridge Capital Trading, that were claiming to offer financial services within the DIFC as DFSA-authorised firms and members of the Dubai Options Exchange who could trade currency options on behalf of investors.
The fraudulent scheme targeted Australian and Singaporean investors who were cold-called by representatives of Cambridge Capital Trading who directed investors to the false websites and asked for funds to be transferred into a bank account in Malaysia. Following the DFSA investigation, the Malaysian Securities Commission made arrests and froze funds linked to the fraudsters.
The first trial was Dutch Equity Partners v Daman Real Estate Capital Partners, a shareholders' dispute relating to a company constructing a £222m 65-storey mixed-use twin-tower development within the DIFC. Dutch Equity Partners was represented by the Dubai office of Kennedys and Daman by the London office of US law firm Curtis Mallet-Prevost Colt & Mosle.
Forsyth Partners Group Holdings is one of three linked liquidations arising out of the failure of the companies to meet applicable regulatory capital requirements. The joint liquidators – who are partners in Grant Thornton – are represented by the DIFC office of Reed Smith and two of the Forsyth companies are represented by the Dubai office of Clydes.
Ithmar Capital v 8 Investment is a claim by a Cayman private equity firm based in Dubai against a Las Vegas investment company arising out of the sale of an option to purchase freehold office space in the DIFC. Ithmar obtained a freezing order against 8 Investment, which appealed the order to the DIFC Court of Appeal. Ithmar is represented by the DIFC office of the UAE law firm, Al Tamimi & Co and 8 Investment is represented by the DIFC firm of JSA Law.
In addition, two Dubai judges, Omar Al Muhairi and Ali Al Madhani have been appointed as small claims tribunal judges. The small claims tribunal deals with all claims up to AED100,000 (£13,700) and its business has mostly been in relation to employment disputes, all of which have been amicably resolved.
On 8 February, 2008, the Rules of the DIFC Court (RDC) came into force. The RDC are modelled on the English Civil Procedure Rules (the Commercial Court Guide in particular) and the product of wide consultation and an examination of international best practice. The RDC differ from English procedure in a number of significant respects, most notably replacing disclosure obligations with provisions derived from the IBA Rules on Taking Evidence in International Commercial Arbitration, which are widely recognised as an acceptable compromise between common law and civil law concepts of discovery.
The final piece of dispute resolution infrastructure in the DIFC is shortly due to be put in place with the inauguration of the DIFC arbitration scheme.
It seems beyond doubt that the DIFC will be an increasingly important international jurisdiction.
Michael Black QC is a barrister at 2 Temple Gardens. He was assisted by Tom Montagu Smith, the principal draughtsman of the rules of the DIFC Court and appeared as counsel in Dutch Equity Partners and Ithmar Capital.
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