This Order addresses the Second Defendant’s failure to comply with a worldwide freezing order (WFO), resulting in the imposition of an "unless order" and a mandate for further disclosure regarding precious metal transactions.
How did the DIFC Court address the Second Defendant’s failure to provide an affidavit of assets in Emirates NBD Bank v Rashed Almakhawi?
The dispute centers on the enforcement of a worldwide freezing order (WFO) issued on 18 March 2026 against the Second Defendant, Abdulaziz Rashed Abdulaziz Mohammed Almakhawi. The Claimant, Emirates NBD Bank, sought to compel the Second Defendant to disclose his global assets, a requirement he failed to satisfy through proper legal channels. Instead of submitting a sworn affidavit as mandated by the Court, the Second Defendant provided an unsworn document, which the Court found insufficient to meet the strict procedural requirements of the WFO.
The Court emphasized that the procedural integrity of a freezing order relies entirely on the veracity and formal status of the disclosure provided. Because the Second Defendant failed to verify his asset information under oath, the Court ruled that the submission was legally non-existent for the purposes of compliance. As noted in the Court’s findings:
Leaving aside any question of the adequacy of its contents, the document was not an affidavit and therefore did not amount to compliance with the WFO.
Which judge presided over the enforcement applications in CFI 039/2025 and when were the orders issued?
H.E. Justice Michael Black presided over the Court of First Instance proceedings. The specific Order with Reasons, which addressed multiple applications including the Claimant’s "unless order" request and the Second Defendant’s failed appeal attempts, was issued on 17 April 2026.
What were the specific legal arguments advanced by the parties regarding the Second Defendant’s compliance and the request for permission to appeal?
The Claimant, Emirates NBD Bank, moved for an "unless order" (Application CFI-039-2025/8), arguing that the Second Defendant’s persistent failure to provide a sworn affidavit of assets necessitated a sanction that would bar him from defending the underlying claim if he remained in default. The Claimant maintained that the Second Defendant’s previous filings were evasive and procedurally defective.
Conversely, the Second Defendant sought an extension of time to comply (Application CFI-039-2025/7) and attempted to initiate an appeal against the 18 March 2026 WFO. The Second Defendant’s position was complicated by a change in legal representation. The Court noted the difficulty in managing the appeal process due to this transition:
While I did canvass PTA at the oral hearing on 14 April 2026, new counsel recently instructed on behalf of D2 said (and I accept) he was in no position to deal with the matter.
What was the precise doctrinal issue the Court had to resolve regarding the Second Defendant’s attempt to appeal the WFO?
The Court was tasked with determining whether the Second Defendant’s email correspondence dated 8 April 2026 could be retroactively treated as a validly filed Appeal Notice under RDC 44.9. Furthermore, the Court had to decide whether the Second Defendant had demonstrated a "real prospect of success" to justify granting permission to appeal (PTA) against the WFO and the ancillary disclosure orders. This required the Court to evaluate whether the initial decision-making process regarding the WFO was legally sound or if it contained errors in principle.
How did Justice Michael Black apply the test for granting an "unless order" and further disclosure?
Justice Black applied a strict approach to the enforcement of the WFO, emphasizing that the Court’s orders are not optional. By granting the "unless order," the Court established a clear deadline of 20 April 2026 for the Second Defendant to serve a sworn affidavit. The reasoning was that the Second Defendant’s previous "unsworn" disclosure was a failure of the most basic procedural duty.
The Court also exercised its discretion to order further disclosure regarding precious metals and gemstones, noting that the Second Defendant’s previous disclosures were inadequate. The Court’s reasoning for the necessity of these measures was clear:
Again, new counsel recently instructed on behalf of D2 said (and I accept) he was in no position to deal with the matter.
Which specific DIFC laws and RDC rules were applied to the enforcement of the WFO and disclosure requirements?
The Court relied on Dubai Law No. 2 of 2025, specifically Article 2 and Article 14(A)(1), to assert its jurisdiction and authority over the enforcement process. Procedurally, the Court invoked RDC 4.2(1) regarding the Court's general powers, and RDC 44.9, 44.13, 44.16, and 44.19 concerning the filing of appeals and the management of the appeal notice. Additionally, RDC 38.19 was central to the Court’s ability to enforce the disclosure obligations through the "unless order" mechanism.
How did the Court utilize the cited authorities to address the Second Defendant’s jurisdictional challenges?
The Court referenced its own previous judgment in CFI-039-2025 to dismiss the Second Defendant’s jurisdictional challenge on the merits. The Second Defendant had argued that the Court erred in its application of the law, specifically:
(c) Further or alternatively, even if Article 14(A)(1) was engaged, the Judge erred in holding that there was no room to decline jurisdiction, including by failing to engage adequately with Article 14(C) as a coherent statutory declinature scheme.
The Court rejected these arguments, maintaining that the freezing order and disclosure requirements were properly granted and that the Second Defendant’s attempt to challenge the principle of the WFO was without merit.
What was the final disposition of the applications and the monetary relief awarded to the Claimant?
The Court granted the Claimant’s "unless order" application, effectively placing the Second Defendant’s defense at risk of being struck out if he fails to comply by 20 April 2026. The Court also granted the Claimant’s ex parte application for further disclosure of bank statements and records related to precious metals. The Second Defendant was ordered to pay the costs of the applications:
The Second Defendant shall pay the Claimant’s costs of Application Nos. CFI-039- 2025/7 and CFI-039-2025/8 in the sum of USD 23,833.31.
What are the wider implications for practitioners regarding the enforcement of freezing orders in the DIFC?
This case serves as a stark reminder that the DIFC Court will not tolerate procedural shortcuts, such as the submission of unsworn documents in response to a WFO. Practitioners must ensure that clients strictly adhere to the formal requirements of an affidavit. The use of an "unless order" as a sanction for non-compliance demonstrates that the Court is prepared to bar a defendant from participating in the merits of a claim if they fail to provide full and frank disclosure. Litigants must anticipate that any attempt to delay compliance through late changes in counsel or informal email correspondence will be met with firm judicial oversight.
Where can I read the full judgment in Emirates NBD Bank v Rashed Almakhawi [2026] DIFC CFI 039?
The full judgment can be accessed via the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-0392025-emirates-nbd-bank-pjsc-v-1-rashed-abulaziz-almakhawi-2-abdulaziz-rashed-1
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| Emirates NBD Bank v Rashed Almakhawi | CFI-039-2025 | Jurisdiction and freezing order validity |
Legislation referenced:
- Dubai Law No. 2 of 2025: Article 2, Article 14(A)(1), Article 14(C)
- RDC 4.2(1)
- RDC 38.19
- RDC 44.9
- RDC 44.13
- RDC 44.16
- RDC 44.19