What is the specific nature of the underlying dispute between Najem, Nex, and Nashrah that led to the USD 80,000 payment order?
The litigation arises from a contract for emergency air ambulance services, specifically the transport of the late Mr. Najem’s wife from Switzerland to South Korea for medical treatment. Following the engagement of Nashrah by Mr. Nex, acting as an agent for the late Mr. Najem, a dispute emerged regarding the refund of substantial fees paid for these services. This disagreement triggered a complex web of cross-border litigation, with the Appellants seeking recovery of the funds and the Respondent asserting the existence of a binding arbitration agreement.
The procedural history is marked by a race to different forums. The Appellants initiated proceedings in the English High Court in January 2024, while the Respondent subsequently sought to compel arbitration. The current impasse involves an anti-suit injunction (ASI) granted by the DIFC Court, which the Appellants are now challenging. As a condition for granting permission to appeal the maintenance of this injunction, the Court has ordered the Appellants to pay USD 80,000 into court. As noted in the procedural background:
On 13 December 2024, without prior notice, the Respondent filed a Request for Arbitration in the Dubai International Arbitration Centre (“DIAC”).
This filing, and the subsequent attempts to enforce the arbitration clause, form the core of the jurisdictional conflict currently before the Court of Appeal. Further details on the broader implications of this case can be found at: Nashrah v Najem [2025] DIFC ARB 005: The Limits of Anti-Suit Injunctions in the Shadow of Redundant Arbitration Rules.
Which judge presided over the July 2025 order in Najem v Nashrah and in which division of the DIFC Courts was this matter heard?
The order dated 30 July 2025 was issued by H.E. Chief Justice Wayne Martin, sitting in the Court of Appeal of the Dubai International Financial Centre Courts. This order follows a series of earlier interlocutory decisions made by H.E. Justice Shamlan Al Sawalehi in the Arbitration Division, which established the initial anti-suit injunction and subsequently dismissed the Appellants' initial application for permission to appeal.
What were the specific legal arguments advanced by the Appellants and the Respondent regarding the validity of the arbitration clause?
The Appellants, representing the Estate of the Late Mr. Najem and Mr. Nex, argued that the DIFC Court erred in its jurisdictional assessment, particularly regarding the effect of Dubai Decree No. 34 of 2021 on the parties' dispute resolution clause. They contended that the clause, which referenced the now-abolished DIFC-LCIA, did not automatically transition to DIAC jurisdiction in a manner that would support an anti-suit injunction. Furthermore, they challenged the procedural fairness of the ex parte injunction granted on 20 January 2025.
Conversely, the Respondent, Nashrah, maintained that the arbitration agreement remained valid and enforceable despite the institutional changes brought about by Decree 34. The Respondent argued that the DIFC Court correctly exercised its supervisory jurisdiction to protect the integrity of the arbitration process. The Respondent emphasized that the Appellants were bound by the arbitration agreement as principals, citing specific provisions of the DIFC Contract Law. As the court noted:
Following from this, I accept that Mr Najem is equally bound by the Arbitration Agreement as a principal pursuant to Articles 130 and 131 of the DIFC Contract Law.”15
What was the precise doctrinal issue the Court of Appeal had to determine regarding the scope of the anti-suit injunction?
The Court of Appeal was tasked with determining whether the Appellants had a "real prospect of success" in challenging the anti-suit injunction (ASI) granted at first instance. The doctrinal issue centers on the extent of the DIFC Court’s power to restrain parties from pursuing litigation in foreign jurisdictions (specifically the English High Court) when the existence and seat of the underlying arbitration agreement are contested. The court had to weigh the "provisional" nature of the initial findings against the potential for irreparable harm if the injunction were to stand or fall based on an incorrect interpretation of the arbitration clause's survival post-Decree 34.
How did Chief Justice Wayne Martin apply the test for granting permission to appeal in the context of an interim injunction?
Chief Justice Martin applied a rigorous assessment of the proposed grounds of appeal, distinguishing between those that raised substantive questions of law and those that were deemed meritless or irrelevant. He emphasized that the findings made at the interim stage are inherently provisional and that the final determination of the applicable law must await a full hearing. The Chief Justice utilized a granular approach, granting permission for specific grounds while refusing others to streamline the appellate process. Regarding the nature of the injunction, he noted:
The penal consequences which can follow from breach of injunctive orders necessitates the precise and unambiguous delineation of the conduct which is proscribed by the orders in their terms
This reasoning underscores the court's commitment to ensuring that injunctive relief is not only justified but also clearly defined to avoid ambiguity for the parties involved.
Which specific DIFC statutes and RDC rules were central to the Court's analysis of the jurisdictional challenge?
The Court’s analysis was heavily grounded in the DIFC Arbitration Law, specifically Article 12(2) regarding the court's assistance in arbitration, and Article 32 concerning the court's general powers. Furthermore, the Court referenced Articles 130 and 131 of the DIFC Contract Law to determine the binding nature of the arbitration agreement upon the parties. Procedurally, the Court relied on RDC 44.5, RDC 44.19, and RDC 44.117, which govern the requirements for injunctions and the criteria for granting permission to appeal in the DIFC Courts.
How did the Court utilize precedents and the specific factual context to navigate the jurisdictional dispute?
The Court navigated the dispute by acknowledging the "linguistically outdated" nature of the arbitration clause following the abolition of the DIFC-LCIA. The Court referenced the Judge’s earlier observations:
The Judge made observations on this topic in the following passage of his reasons:
“I am also satisfied that a valid arbitration agreement exists between the parties. DIAC accepted jurisdiction on a prima-facie basis and registered the arbitration initiated by the Claimant, and so I see no reason why the DIFC Court would act contrary to this decision; nonetheless, the move from DIFC-LCIA to DIAC would not render DIFC-LCIA agreement invalid, but merely linguistically outdated.
By citing this, the Court highlighted the tension between the prima facie acceptance of jurisdiction by DIAC and the need for a definitive judicial ruling on the validity of the clause, which remains a central point of contention for the upcoming appeal.
What was the final disposition of the Renewed Application for Permission to Appeal and what conditions were imposed?
Chief Justice Martin granted permission to appeal in respect of grounds 1, 3 (as amended), 4, 5, 6, 7, 9, and 11. Permission was refused for grounds 2, 8, 10, and 12. As a condition for the grant of permission, the Appellants were ordered to pay USD 80,000 into court within 35 days. Additionally, the Court ordered a stay on the enforcement of existing costs orders against the Appellants until the appeal is determined, and directed the Registrar to fix a timetable for the appeal hearing.
What are the wider implications of this ruling for practitioners dealing with anti-suit injunctions in the DIFC?
This case signals that the DIFC Court will subject anti-suit injunctions to intense appellate scrutiny, particularly where the seat of arbitration or the validity of the arbitration agreement is affected by the transition from DIFC-LCIA to DIAC. Practitioners must anticipate that the Court will prioritize the "precise and unambiguous delineation" of injunctive terms to avoid overreach. The requirement for a significant payment into court as a condition for appeal underscores the high stakes involved in challenging these interim orders. For further context on the procedural alignment in jurisdictional appeals, see: NASHRAH v NAJEM [2025] DIFC ARB 005 — Permission to appeal and extension of time for jurisdictional challenges (10 September 2025).
Where can I read the full judgment in Najem v Nashrah [2025] DIFC ARB 005?
The full order with reasons can be accessed via the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/arbitration/arb-0052025-1-najem-2-nex-v-nashrah or via the CDN link: https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/arbitration/DIFC_ARB-005-2025_20250730.txt.
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| Najem v Nashrah | [2025] DIFC ARB 005 | Primary subject of appeal |
Legislation referenced:
- DIFC Arbitration Law, Article 12(2)
- DIFC Arbitration Law, Article 32
- DIFC Contract Law, Article 130
- DIFC Contract Law, Article 131
- Dubai Decree No. 34 of 2021
- RDC 44.5
- RDC 44.19
- RDC 44.117
- Arbitration Act 1996 (UK), Section 9