Tuesday, 8 January 2019

DIFC Expansion likely to present new Opportunities for the DIFC Courts

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Jane Lambert

The Dubai International Financial Centre ("DIFC") is a free zone for banking, insurance, securities trading and other financial services. It was established with the aim of transforming Dubai into a major financial centre. On 7 Jan 2019, the Vice-President and Prime Minister of the United Arab Emirates and Ruler of Dubai announced plans to triple the size of the Centre (see the DIFC press release Mohammed Bin Rashid Approves DIFC’s New Expansion Plan 8 Jan 2019).

The press release states that
"Upon completion, the new district will comprise 6.4 million square feet of office space, 2.6 million square feet of creative space, 1.5 million square feet of residences, 1.3 million square feet of retail space and 700,000 square feet devoted to leisure and entertainment. This will be complemented by a financial campus covering approximately 400,000 square feet, an additional 250,000 square feet of hospitality offerings, and 3.5 million square feet of car parking space."
The DIFC already has its own laws based on English common law with its own English language courts and tribunals.  It is reasonable to suppose that those laws will apply to the new area.

I first discussed the DIFC's legal system in DIFC Courts 7 Jan 2011 JD Supra. When I wrote that introduction nearly all the judges of the DIFC's Courts were Commonwealth expatriates.   Many of those judges have now retired and been replaced by Emirati citizens.  Chief Justice Tun Zaki Bin Azmi is Malaysian but the Deputy Chuel Justice and four other judges are Emiratis.

The DIFC Courts will accept jurisdiction where parties choose those courts for the resolution of future or existing disputes (see Jane Lambert DIFC Courts Spread Their Wings  7 Dec 2011). Businesses in developing countries may prefer their disputes to be resolved in Dubai rather than London or New York for all sorts of reasons.  As the DIFC courts are English speaking common law tribunals, they are likely to be acceptable to many businesses in developed countries.  I discussed choice of jurisdiction clauses in DIFC Courts: Choice of Jurisdiction Clauses 28 Dec 2012.

Another development that could increase the importance of the DIFC Courts is the creation of a virtual commercial city. Art 3 of the Dubai government's Fifty Yeat Charter envisages "the establishment of the first virtual commercial city in the region that grants commercial licenses without having to reside in Dubai. The city will allow investors to open bank accounts and grant e-residencies according to best international laws and regulations." The government hopes to have 100,000 companies in that virtual city.  The reference to "best international laws and regulations" are presumably the laws and regulations of the DIFC and the tribunals that would apply those laws are likely to be the DIFC Courts.

The DIFC Courts belong to an organization known as The International Consortium for Court Excellence which has members from various parts of the world including Bhutan, Namibia, Papua New Guinea and Swaziland as well as the USA, Canada, Australia and Brazil.  Dubai hosted the annual conference of that consortium in November 2018 (see press release DIFC Courts host international court excellence and legal tech conference 7 Nov 2018).

Anyone wishing to discuss this article or the DIFC Courts generally should call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.

Thursday, 9 August 2018

Designers making use of the Small Claims Tribunal in Dubai

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Jane Lambert

A press release issued by the Dubai International Financial Centre Courts caught my eye with the headline "Designer Courts". It referred to a cooperation agreement between the Dubai Design and Fashion Council and the Dubai Dispute Resolution Authority which was signed on 15 March 2017 "to pave the way for wider adoption of the English language, international law courts system by Dubai’s fast-developing design and fashion sector."

I have not yet found a copy of the agreement but the press release suggests it contains the following provisions:
  • "Dubai Design & Fashion Council (DDFC) support opt-in to DIFC Courts through new cooperation agreement with DIFC Dispute Resolution Authority (DRA)
  • DIFC Courts Small Claims Tribunal to underpin Dubai’s expanding design and fashion sector through swift, English language dispute resolution
  • Agreement lays foundation to explore adding Design IP as a topic for Courts of the Future"
I was particularly interested in the last of those bullet points which refers to "Design IP" because this is the first occasion that I have seen an official document considering the use of the DIFC's English language common law courts as a forum for resolving IP disputes.

Intellectual property is a federal responsibility in the United Arab Emirates and designs are protected by registration under Chapter 3 of Federal Law No. 31 of 2006 Pertaining to the Industrial Regulation and Protection of Patents, Industrial Drawings, and Designs.  The DIFC courts already had jurisdiction in breach of confidence and passing off cases under the DIFC Law of Obligations. The agreement between the DDFC and the DRA seems to extend that jurisdiction with the consent of the parties.

I have already discussed the DRA and the Small Claims Tribunal in my articles dated 27 July 2016 and 20 April 2017.  According to its website
"The Dubai Design & Fashion Council (DDFC) was established by the Dubai Government to raise the profile of Dubai as a regional and global destination for design. Leading the development of a sustainable industry, DDFC provides in-depth market intelligence and helps elevate local and regional talent, enabling the contribution of the creative industries to the development of the Emirate."
Looking through its news and resources pages I am glad to see that the DDFC already gives its members advice and information about intellectual property law.

The press release states:
"As design entrepreneurs start up and compete across the region and beyond, they are reliant on key partnerships for talent, funding and materials. These need to be protected to enable businesses to trade securely and grow. By opting in to DIFC Courts Small Claims Tribunal (SCT) using a standard contract clause, enterprises will benefit from its proven capacity resolve disputes amicably and fast in English, with 85% of cases settled within four weeks."

It is important to stress that the parties must consent to the DIFC courts' jurisdiction.  For licences, distribution, franchising, joint venture and other agreements, the following clause is suggested:
"Any dispute, difference, controversy or claim arising out of or in connection with this contract, including (but not limited to) any question regarding its existence, validity, interpretation, performance, discharge and applicable remedies, shall be subject to the exclusive jurisdiction of the Courts of the Dubai International Financial Centre (“the DIFC Courts”)."
For existing disputes, the press release suggests the following:
"Any dispute, difference, controversy or claim arising out of or in connection with [Define Dispute], including (but not limited to) any question regarding the existence, validity, interpretation, performance, discharge and applicable remedies of the underlying contract in dispute, shall be subject to the exclusive jurisdiction of the Courts of the Dubai International Financial Centre (“the DIFC Courts”)."  
There appears to be no reason why the court should not hear infringement disputes thought perhaps not revocation and invalidity applications without further federal legislation.  That appears to be in the contemplation of the Emirati authorities: "
"Thinking ahead for businesses of the future, DIFC Courts and DDFC will work together to understand the industries needs from a legislative perspective for IP law."
An incentive to opt into the Small Claims Tribunal's jurisdiction is that it offers speedy resolution.  According to the press release:
"Through the award-winning smart SCT, firms with claims can access a virtual courtroom online from anywhere in the world. With the option of serving notice via instant messaging and social media, business owners can now solve legal problems using their smartphones or laptops with minimal interruption even as they travel."
Anyone wishing to discuss this article or design law generally should call me on +44 (0)20 7404 5252 during UK office hours or send me a message through my contact form.

Sunday, 6 May 2018

BADIR - Helping SME in Saudi Arabia

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Jane Lambert

According to the home page of the BADIR website, "badir" means "to initiate" in Arabic. BADIR is a programme to accelerate the growth of emerging technology businesses in Saudi Arabia.  It is an initiative of the King Abdul Aziz City for Science and Technology (see Saudi Arabia: King Abdulaziz City for Science and Technology 6 Sep 2012 and the video Introduction film about King Abdulaziz City for Science and Technology).

BADIR assists both Saudi and foreign businesses to establish and grow in Saudi Arabia, The services that it offers to Saudis are accelerators, boot camps, incubators and services for inventors.  The services that it offers to foreigners is what it calls "a soft landing" into Saudi  Arabia.

The first accelerator was launched in 2016 with 7 companies and lasted for 4 months.  The programme consisted of workshops, consultations and pitching for seed funding.

Boot camps are are intensive workshops in business modelling, finance, marketing lasting no more than a few days.  Two have recently taken place at Qassim and Riyadh.

There are incubators for advanced manufacturingbiotechnology and information and communications technology, Slightly different criteria apply for acceptance on each of those programmes and slightly different services and facilities are provided.  Incubators are located in Riyadh and Taif.

Help with patenting and commercialization is offered to inventors by BADIR.

BADIR helps established foreign companies with technology that is likely to benefit Saudi Arabia to establish themselves in that country.

Anyone wishing to discuss this article may call me on +44 (0)20 7404 5252 during normal British business hours or send me a message through my contact form.

Friday, 30 March 2018

ACDR's First Domain Name Disputes

Jane Lambert

In Arab Center for Dispute Resolution: New Kid on the UDRP Block 20 Oct 2015 I introduced the Arab Center for Dispute Resolution ("ACDR") domain name dispute resolution service. The ACDR is one of five dispute resolution dispute resolution service providers that have been approved by the Internet Corporation for Assigned Names and Numbers ("ICANN") for the resolution of generic top level domain name disputes (see List of Approved Dispute Resolution Service Providers on the ICANN website).

When I wrote my previous article, the ACDR had not resolved any cases.  It has now resolved four:
There have been two complainants, SellAnyCar.com FZE and MBC both of which have been represented by Al-Tamini & Co.  The first three cases have been successful but the fourth failed.

For further information on domain name disputes see Domain Name Disputes  on NIPC Branding.  if you are a brand owner and wish to evict a cyber squatter, see Evicting a Cybersquatter using the UDRP 18 July 2017 NIPC Branding. If you are accused of cyber squatting, see Resisting Eviction under the UDRP 19 July 2017. Call me on +44 (0)20 7404 5252 if you wish to discuss this article or domain name dispute resolution in general or send me a message through my contact form.

Saturday, 13 January 2018

The Abu Dhabi Global Market Courts hear their First Case

Jane Lambert

In Abu Dhabi Global Market - Yet Another Common Law Enclave in the Gulf 22 Feb 2016 I reported that Abu Dhabi had set up its own financial centre known as Abu Dhabi Global Market with its own English language common law courts.  I can now add that the Court of First Instance has heard its first case.

The Court heard for an application for interim declarations brought by the claimant Afkar Capital Ltd, against Saifallah Mohamed Amin Mahmoud Fikry (see  Afkar Capital Limited v Fikry [2017] ADGMCFI 1). Both sides were instructed by English counsel and the application came on before Sir Andrew Smith.

Sir Andrew refused the application for three reasons. The first was that the application raised issues that could only be determined at trial. The second was that the action was due to come on for trial early in the New Year. Interim declaratory relief would only marginally benefit the claimant but could result in injustice for the defendant.   Thirdly, an interim declaration would serve no practical purpose.

Anyone wishing to discuss this case or the Abu Dhabi Global Market Courts generally should call me between 08:30 to 18:30 London time on +44 (0)20 7404 5252 or send me a message through my contact form.

Saturday, 18 November 2017

Dubai's Courts of the Future Initiative

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Jane Lambert

The Dubai Future Foundation is an initiative of the Dubai government to chart the economic, social and cultural future of Dubai. Its initiatives include artificial intelligence and robotics, autonomous transportation, blockchain technology, three-dimensional printing and pilotless aircraft. Each of those technologies is likely to lead to legal issues which are mentioned briefly in the topics section of the Courts of the Future website.

Those issues will have to be resolved in Dubai as they will in the rest of the world and the body that seeks to address those issues in Dubai is the Courts of the Future Forum. This is a panel of 13 lawyers and other experts from around the world including two members of the English bar and partners of Bird & Bird. The acting chief executive and chief operating officer of the Dubai Future Foundation also sit on that panel as does the co-chief executive and registrar-general of the Dubai International Financial Centre Courts (an English speaking common law jurisdiction in the Dubai International Financial Centre which I first discussed in DIFC Courts 7 Jan 2011 J D Supra).

The terms of reference of the Courts of the Future Forum are set out in its charter. Art 1.2 of that charter provides that the purpose of the forum is to advise the courts about:
"(a) the current performance and reputation of the Courts as perceived by the Forum members in relation to handling of the disputes of the future;
(b) the strategic direction required for the Courts to maintain and improve their knowledge, performance and reputation regarding future IP, construction, technology and other related disputes;
(c) developments and trends in the arena of international dispute resolution which may have an impact on the DIFC Courts and its operation and which, if adopted, might benefit the DIFC Courts and its users in resolving disputes of the future."
While its recommendations will be addressed to the DIFC courts, they are likely to be relevant to court services everywhere including, in particular, the Business and Property Courts of England and Wales which were the model for the DIFC courts (see Jane Lambert Launch of a Judicial Super Highway?  12 July 2017 IP Northwest).

The forum has drafted a model Part 40,000 for the DIFC Court Rules which are based on our Civil Procedure Rules.  A footnote explains that the number 40,000 was chosen for the Part because:
"40,000 km/h is the speed at which an object must travel in order to break free of a planet’s gravitational pull."
An introductory paragraph states:
"The founding principles for the Courts of the Future are explained here through an imagined set of rules for processing claims in a new specialist division of a court. This division would be designed to support companies developing new technologies, sectors and applications – from blockchain to 3d printing. The rules include details of how the court itself could use these technologies, for example there is an artificial intelligence for adjudicating small claims. It is the kind of division that this Forum aims to create."
Rule 1 of that Part declares that it applies to Court of the Future claims ("COF claims").  Rule 3 provides:
"A claim may be issued as a COF Claim if it:
(a) involves issues or questions of technical complexity, or 
(b) has no or no single physical geographical nexus, or
(c) the proceedings are likely to involve multiple parties from different jurisdictions.
 The following are examples of the types of claim which may be appropriate to bring as COF Claims, but are not exhaustive and other types of claim may be appropriate to this specialist division:
(1) claims involving international commercial chain transactions;
(2) claims relating to liability for the acts or omissions of artificial intelligence, software or any devices or components of devices whether integrated or not that are dependent on or controlled by such software including, but not limited to autonomous or semi-autonomous vehicles;, medical devices and types of industrial and domestic equipment;
(3) claims involving issues of cyber security in respect of data and/or assets stored online;
(4) claims relating to competition and/or anti-trust issues in respect of online assets or currency;
(5) claims involving online intermediaries and/or online platforms or marketplaces;
(6) claims relating to online peer to peer transactions;
(7) claims relating to online blockchain transactions;
(8) claims relating to 3D printing;
(9) claims relating to or arising out of extraterrestrial activity or territories;
(10) intellectual property claims arising out of or in relation to any of the above claims;
(11) any combination of the above claims;
(12) insurance claims in relation to any of the above claims; and
(13) challenges to decisions of arbitrators in COF disputes."
 The Part has 12 rules as follows:

1 General
2 Specialist division
3 Definitions
4 Rules
5 Joinder
6 Interim Payment
7 Enforcement
8 Record Keeping
9 Processing of personal data
10 Data confidentiality and security
11 COF Practice Direction
12 Micro Disputes Practice Direction

The rules on enforcement and micro disputes are particularly interesting.  Litigants will be required to give details of their blockchain accounts and judgments will be enforced instantaneously via smart contracts.  Micro disputes (that is to say those under US$50,000 where there is no dispute of fact and neither party is a corporation will be determined by computer.

All thought-provoking stuff which will interest judges. lawyers. court administrators and business people everywhere. Should anyone want to discuss this article, he or she should call me on +44 (0)20 7404 5252 during normal business hours or send me a message through my contact form.

Wednesday, 20 September 2017

A new Technology and Construction Division for Complex Computer Supply Disputes

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Jane Lambert

Sir Richard Field has been appointed to head a new Technology and Construction Division within the Dubai International Financial Centre's Courts (see the DIFC press release Complex tech and construction disputes can now turn to new specialised DIFC Courts division 17 Sep 2017). The new Division appears to have been modelled on the English and Welsh Technology and Construction Court. The Division's procedure is governed by Part 56 of the DIFC Court Rules which is similar to Part 60 of the Civil Procedure Rules and Part 60 Practice Direction.

Rule 56.3 of the DIFC Court Rules provides that a claim may be brought in the Division if it involves issues or questions that are technically complex. A number of sub-paragraphs list examples of such claims which include:
"claims relating to the design, supply and/or installation of computers, computer software and related network and information technology systems and services."
Cases in the new Division will be managed in much the same way as they are managed in the Technology and Construction Court.  Rule 56.15 of the Court Rules provide for a case management conference within 14 days of filing of the particulars of claim or the transfer of a case to the Division.

The above-mentioned press release states that "parties located anywhere in the world are able to opt-in to the DIFC Courts’ jurisdiction, if both parties agree in writing."

Members of the bar of England and Wales with experience of computer supply litigation are well placed to advise on matters that fall within this new Division's jurisdiction and to represent parties in cases that proceed before its judges.  Anyone wishing to discuss this article, computer supply dispute resolution or the DIFC courts in general should call me on +44 (0)20 7404 5252 during UK office hours or send me a message through my contact form.