The DIFC Courts' jurisdiction derives from Law No.12 of 2004 in respect of The Judicial Authority at Dubai International Financial Centre. Art 5 (1) (a) of that law confers exclusive jurisdiction on the Court of First Instance in respect of "civil or commercial disputes civil or commercial cases and disputes involving the Centre or any of the Centre’s Bodies or any of the Centre’s Establishments." Art 2 defined "Centre Establishments" as
"Any entity or business duly established or carrying on business in the Centre, including any Licensed Centre Establishments."The same article defined "Licensed Centre Establishments" as "Any entity licensed, registered or otherwise authorised to carry on financial or banking business." Sir Anthony had held that the branch of the defendant company that carried on business in the DIFC was a "Centre Establishment" but not the bank as a whole.
The Court of Appeal disagreed with Sir Anthony's "reasoning that a "Centre Establishment" can be identified as an unincorporated entity which is permitted to conduct business within the DIFC in accordance with the terms of its license and registration with the DIFC." In the words of the Chief Justice at paragraph [59]:
"Centre Establishment" must be a legal entity because that is the only way in which the term "entity" used in Article 2 of Law No. 12 can be understood. Where a bank is licensed to carry on business in a place outside its country of incorporation, it is necessary for that bank to carry on business either through an unincorporated branch of the bank or through a separate legal entity which is a subsidiary of the bank. Bank regulators frequently, if not typically, require foreign banks to carry on mainstream banking business through a branch rather than a local subsidiary. However, it would be uncommon for an unincorporated branch of a foreign bank to be treated under local law as a legal entity separate and distinct from its head office unless it has been separately incorporated as a subsidiary. I cannot therefore accept the proposition advanced by the Deputy Chief Justice that a "Centre Establishment" can be an entity which may be (to use the learned Judge's words) "within the corporation". A branch is no different in law from a division, and a division of a corporation is part of that corporation, and has no legal entity of its own (although it may be treated as an accounting entity for certain purposes)."
Having found that an unincorporated DIFC branch of a foreign bank cannot be regarded as an independent entity for purposes of qualifying as a "Centre Establishment", it followed that this term had to be interpreted to mean the defendant bank and its various branches, wherever located. Accordingly, the DIFC Courts had jurisdiction over the conduct of the branch where the alleged wrongdoing took place.
While sharing Sir Anthony's concern as to the limits of the DIFC courts' jurisdiction, the Chief Justice noted at paragraph [68] that:
"(a) It is entirely within the control of banks and other enterprises carrying on business in the DIFC and the wider Emirate of Dubai as to whether they choose to subject their business within the wider Emirate to the jurisdiction of the DIFC Courts — if they do not wish to do so, they can either trade through separate corporate vehicles in the DIFC and the wider Emirate or (even more simply) include jurisdiction clauses in their contracts choosing where they allocate jurisdiction over any disputes.
(b) There may well be good reasons why banks and other enterprises carrying on business in both the DIFC and the wider Emirate of Dubai should choose to subject their business within the wider Emirate to the jurisdiction of the DIFC Courts — their business may (as in the present case) be carried on in the English language, and/or their transactions may be subject to a substantive law other than that of the Emirate.
(c) The situation under consideration will clearly not arise where the "Centre Establishment" is a company incorporated and carrying on business in the UAE outside the Emirate of Dubai or elsewhere. The principles of private international law limit the powers and discretion of the DIFC Courts so as to prevent the exercise of exorbitant jurisdiction, and the DIFC Courts possess the discretion to decline jurisdiction on grounds of forum non conveniens."
Sir John Chadwick and His Excellency Ali Al Madhani delivered concurring judgments.
The Court of Appeal's decision in Corinth Pipeworks follows hot on the heels of the decree of 31 Oct 2011 which extended the DIFC courts' jurisdiction to cover any business dispute from any part of the world. I commented on the extension of the Court's judgment in "DIFC Courts Spread Their Wings" on 7 Dec 2011. The combined effect of the decree and appeal is to enhance considerably the convenience of the court for determining all manner of commercial disputes including those relating to intellectual property.
Though an IP case is yet to come before the DIFC courts there is no reason why it should not handle one effectively. Sir John Chadwick heard plenty such cases when he sat in the Chancery Division in London. Part 25 of the Rules of the DIFC Courts enable those courts to grant interim injunctive relief as quickly and effectively as any court in the world.
