This order addresses the procedural necessity of aligning jurisdictional challenges in the DIFC Courts to prevent inconsistent outcomes and ensure judicial efficiency in complex arbitration-related disputes.
What is the specific dispute between Nashrah, Najem, and Nex regarding the DIFC Court’s jurisdiction in ARB 005/2025?
The dispute arises from an ongoing arbitration-related conflict where the Defendants, Najem and Nex, sought to challenge the jurisdiction of the DIFC Court. Following an order by H.E. Justice Shamlan Al Sawalehi on 23 June 2025, which dismissed the Defendants' objection to jurisdiction, the Defendants filed an application for an extension of time (EOT) and permission to appeal. The core of the controversy involves the interplay between an earlier anti-suit injunction granted by the Court and the subsequent dismissal of the jurisdictional challenge.
The Claimant, Nashrah, opposed the extension of time, arguing that the Defendants’ delay caused prejudice and that the lack of finality regarding the jurisdictional order was detrimental. The Defendants, however, maintained that their failure to file for permission to appeal earlier was due to a mistaken belief that a previous permission to appeal granted in related proceedings already covered the dismissal of their jurisdictional objection. As noted in the court's reasoning:
The Respondent further contends that it would suffer prejudice in the form of being distracted from its preparation of the appeal in CA-004-2025, which is to be heard next month.
The litigation is part of a broader series of orders, including NASHRAH v NAJEM [2025] DIFC ARB 005 — The Limits of Anti-Suit Injunctions in the Shadow of Redundant Arbitration Rules (5 February 2025) and NAJEM v NASHRAH [2025] DIFC ARB 005 — Permission to appeal an anti-suit injunction in air ambulance service dispute (30 July 2025).
Which judge presided over the extension of time and permission to appeal application in ARB 005/2025?
The application was heard and determined by H.E. Chief Justice Wayne Martin, sitting in the Arbitration Division of the DIFC Courts. The order was issued on 10 September 2025, following the submission of written evidence and arguments by both parties in late August and early September 2025.
What arguments did Nashrah and the Defendants (Najem and Nex) advance regarding the EOT Application?
The Defendants argued that their delay of approximately four weeks was excusable due to a genuine, albeit mistaken, belief regarding the scope of previous appellate permissions. They contended that the jurisdictional issue was already central to the ongoing appeal in CA-004-2025 and that the court should grant the extension to avoid a procedural anomaly.
Conversely, the Claimant, Nashrah, argued that the delay was inexcusable and that the Defendants’ failure to act promptly deprived the Claimant of the finality of the June 2025 order. Nashrah further asserted that the Defendants would be distracted from their preparations for the upcoming CA-004-2025 hearing if the new appeal were permitted to proceed. The court addressed these concerns by noting:
The Respondent has not established any material prejudice arising from the delay and does not contend that it changed its position in reliance upon an assumption that no appeal would be brought - it being well aware that the issue of the court’s jurisdiction was contested in CA-004-2025.
What was the precise doctrinal issue Chief Justice Wayne Martin had to answer regarding the overlap of jurisdictional grounds in ARB 005/2025?
The court had to determine whether it was in the "interests of justice" to grant an extension of time and permission to appeal when the grounds of appeal were substantively identical to those already permitted in a related matter (CA-004-2025). The doctrinal challenge was to prevent a potential "anomaly" where the Court of Appeal might rule on the court's jurisdiction in the context of an injunction appeal, while a separate, unappealed order dismissing a jurisdictional objection remained on the record, creating an inconsistent legal outcome.
How did Chief Justice Wayne Martin apply the test for granting an extension of time and permission to appeal?
Chief Justice Martin applied a balancing test, weighing the length of the delay and the potential for prejudice against the necessity of ensuring procedural consistency. He found that the delay was not substantial and that the Claimant suffered no material prejudice, as the jurisdictional dispute had been "on foot" for a significant period.
Regarding the permission to appeal, the Chief Justice relied on the principle that grounds with a "real prospect of success" should be permitted, especially when those grounds mirror issues already before the Court of Appeal. He reasoned:
Although the Respondent contends that it will suffer prejudice in the form of a lack of finality in respect of the order made dismissing the objection to jurisdiction, prejudice in that form will be suffered in every case in which an extension of time within which to appeal is granted.
He further clarified the necessity of the appeal to avoid conflicting rulings:
If the appeal against the grant of the injunction succeeds on grounds relating to the jurisdiction of the court, the order of the Court of Appeal would be inconsistent with the decision of the judge dismissing the objection to jurisdiction.
Which specific RDC rules and statutes were applied by the court in this order?
The primary procedural rule cited was RDC 44.13, which governs applications for an extension of time to file a notice of appeal. The court also referenced the overarching principles of the Rules of the DIFC Courts regarding the efficient management of cases. The decision was heavily influenced by the existence of the related appeal in CA-004-2025, which provided the framework for the court's decision to consolidate the hearing and the filing of skeleton arguments.
How did the court use the precedent of CA-004-2025 in its reasoning?
The court utilized CA-004-2025 as a benchmark for procedural efficiency. Because the grounds for appeal in the current matter were "in substance coextensive" with those in the existing appeal, the court determined that the most efficient path was to align the two matters. This prevented the duplication of judicial effort and ensured that the parties would not be burdened by separate, redundant proceedings. The court noted that the judge's reasons for dismissing the objection to jurisdiction were essentially an adoption of his earlier reasoning from 19 February 2025, which was already under challenge.
That is to be expected, as the judges reasons for dismissing the objection to jurisdiction were limited to an adoption of the reasons he had earlier given on 19 February 2025 for his decision that the court had jurisdiction.
What was the final disposition and the specific orders made by Chief Justice Wayne Martin?
The court granted the EOT Application and granted permission to appeal in respect of Grounds 2, 3, and 4, while refusing permission for Grounds 1 and 5. The court ordered that the appeal be listed for a hearing concurrently with CA-004-2025. Furthermore, the court directed that the parties prepare only one hearing bundle and file single skeleton arguments for both appeals to minimize costs and administrative burden. The costs of the applications were reserved to the Court of Appeal.
What are the wider implications for DIFC practitioners regarding jurisdictional appeals and procedural alignment?
This decision reinforces the DIFC Court’s commitment to procedural efficiency and the avoidance of inconsistent outcomes. Practitioners must anticipate that where multiple orders arise from the same jurisdictional dispute, the court will favor consolidating appeals to ensure that the Court of Appeal addresses the core jurisdictional questions in a single, coherent proceeding. The case highlights that even where a delay occurs, the court will prioritize the "interests of justice" and the avoidance of legal anomalies over strict adherence to timelines, provided the delay is not substantial and causes no material prejudice.
For a deeper analysis of the risks associated with redundant arbitration rules and the limits of anti-suit injunctions in this case, see the editorial analysis: Nashrah v Najem [2025] DIFC ARB 005: The Limits of Anti-Suit Injunctions in the Shadow of Redundant Arbitration Rules.
Where can I read the full judgment in NASHRAH v NAJEM [2025] DIFC ARB 005?
The full order can be accessed via the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/arbitration/arb-0052025-nashrah-v-1-najem-2-nex-5 or via the CDN link: https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/arbitration/DIFC_ARB-005-2025_20250910.txt.
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| Nashrah v Najem | CA-004-2025 | Used as the primary related appeal for procedural alignment and consolidation of grounds. |
Legislation referenced:
- Rules of the DIFC Courts (RDC) 44.13