ARB 005/2025 Nashrah v (1) Najem (2) Nex

February 19, 2025 ARBITRATION - ORDERS

Claim No. ARB 005/2025

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

NASHRAH

Claimant

and

(1) NAJEM
(2) NEX

Defendants

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REASONS FOR THE ORDER OF H.E. JUSTICE SHAMLAN AL SAWALEHI DATED 6 FEBRUARY 2025

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1. This application is brought by the Defendants seeking the Interim Anti-Suit Injunction (“ASI”) Order (“ASI Order”) dated 20 January 2025 be discharged, for the Claimant to pay for damages for losses caused by the ASI Order, and for the Claimant to pay the Defendant’s costs on an indemnity basis to be assessed by the Registrar if not agreed (the “Discharge Application” or “Application” ).

2. The Defendant’s grounds in support of the Application are listed categorically, but all submissions will be discussed in conjunction with the determinative matters prioritised.

Relevant Background and Preceding History

3. The Claimant is a party to an arbitration agreement contained in the Repatriation Agreement with Mr Najem (the First Defendant) acting through his Agent. The arbitration agreement refers to disputes proceeding under the DIFC-LCIA rules with the seat as “Dubai”, to be conducted in English.

4. The dispute was initiated in the English High Court by the Defendant pursuant to legal advice that the arbitration agreement was void as it only owed to the DIFC-LCIA rules, which have since become redundant.

5. In response to the Claimants filing an application for a mandatory stay of the English High Court Proceedings, the Defendant filed for an AAI before the English high Court seeking to restrain the Claimant from pursuing or continuing arbitration proceedings pursuant to the kompetenz-kompetenz principle and an asserted state of urgency on the basis that the English high Court must be the only determinative forum (the “AAI Application”).

6. The English High Court AAI Application hearing was scheduled to be on 21 January 2025 (the “21 January 2025 Hearing”).

7. In turn, the Claimant sought ex parte urgent relief from the DIFC Courts due to the risk of being foreclosed from exercising its arbitral rights.

8. On 20 January 2025, an urgent hearing was held before H.E. Justice Shamlan Al Sawalehi, followed by the issue of an injunction preventing the Defendants from proceeding before the English Courts respect of the Anti-Arbitration Injunction (“AAI”) Hearing on 21 January 2025. The injunction remained in force until the Return Date on 5 February 2025.

9. Nonetheless, the Defendants attended the 21 January 2025 Hearing but only addressed their Substitution Application that sought to substitute Mr Najem for the Executors and transfer the English High Court Proceedings to the Commercial Court and sought to expedite the Section 9 Application.

10. Anticipating a jurisdictional battle, the Section 9 Application was swiftly progressed. The request for an order to restrict the Claimant from challenging the English Courts’ jurisdiction was denied.

11. On 23 January 2025, the English Court issued an order that expedited the hearing of the Section 9 Application to 26 and 27 February 2025. The Claimant fears that the English Court is proceeding in a manner that is inconsistent with English Law.

12. On 3 February 2025, the Agent filed his answer to the request for Arbitration filed by the Claimants in DIAC on 13 December 2024.

13. On 5 February 2025, the Return Date Hearing was held before H.E. Justice Shamlan Al Sawalehi.

14. On 6 February 2025, the Order of H.E. Justice Shamlan Al Sawalehi was issued in favour of the Claimant with reasons to follow.

The Application

No Compliance with Full and Frank Disclosu