How did the dispute between Nashrah and the estate of Mr Najem regarding medical repatriation services lead to an anti-suit injunction in the DIFC?
The dispute arises from a contract for medical repatriation services provided by the Claimant, Nashrah, to the late Mr Najem. Following the death of Mr Najem, his estate and the Second Defendant, Mr Nex, initiated proceedings in the English High Court. Nashrah contended that these proceedings violated a binding arbitration agreement that mandated the resolution of disputes through DIFC-LCIA arbitration.
To protect its position, Nashrah sought and obtained urgent interim relief from the DIFC Court. As noted in the court records:
On 20 January 2025, the Claimant obtained an ex parte interim anti-suit injunction issued by this Court restraining the Defendants from continuing proceedings in the English High Court in alleged breach of an arbitration agreement.
The litigation has since evolved into a complex series of procedural challenges, with the Defendants attempting to discharge the injunction and contest the court's authority to intervene in the English proceedings. The case highlights the tension between parallel litigation in different jurisdictions and the robust use of anti-suit injunctions by the DIFC Courts to enforce arbitration agreements. Further details on the strategic use of these injunctions can be found in the deep editorial analysis: 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 dismissal of the applications in Nashrah v Najem [2025] DIFC ARB 005?
H.E. Justice Shamlan Al Sawalehi presided over the matter in the Arbitration Division of the DIFC Court of First Instance. The order, issued on 23 June 2025, followed a series of earlier rulings by the same judge, including the initial injunction order of 6 February 2025 and the subsequent detailed reasons provided on 19 February 2025.
What specific legal arguments did the Defendants (Najem and Nex) advance to challenge the DIFC Court’s jurisdiction and the validity of the anti-suit injunction?
The Defendants, referred to as the "Applicants," raised twelve distinct grounds of appeal and a formal jurisdictional challenge. Their arguments were categorized into three themes: procedural fairness, jurisdictional error, and the scope of the relief granted. Specifically, they argued that the Court’s order of 6 February 2025 was inconsistent with the subsequent written reasons and that the injunction granted was broader than what was initially sought at the ex parte stage.
Furthermore, the Defendants challenged the validity of the arbitration agreement itself, asserting that it should be classified as a "consumer contract" under Article 12(2) of the DIFC Arbitration Law, which would have implications for its enforceability. They also contended that the Court failed to require a cross-undertaking in damages and that the absence of a penal notice rendered the coercive relief procedurally defective. The Claimant, conversely, maintained that the arbitration agreement was valid and that the DIFC Courts possessed the necessary nexus to grant interim relief under Article 32 of the DIFC Court Law.
What was the precise doctrinal issue the Court had to resolve regarding the Defendants' Jurisdiction Application filed on 19 February 2025?
The Court was tasked with determining whether the Defendants had established a valid basis to challenge the DIFC Court's jurisdiction under RDC 12.1 and 23.1. The core doctrinal issue was whether the DIFC Court, having already granted an interim anti-suit injunction, could be ousted from jurisdiction by the Defendants' subsequent assertions that the underlying contract was a consumer contract and that the DIFC was an improper forum. The Court had to decide if the jurisdictional challenge had any "real prospect of success" or if it was merely a tactical attempt to delay the enforcement of the arbitration agreement.
How did Justice Al Sawalehi apply the test for permission to appeal and the assessment of jurisdictional challenges in his 23 June 2025 order?
Justice Al Sawalehi utilized a rigorous assessment of the Defendants' grounds for appeal, ultimately finding them insufficient to meet the threshold for overturning the previous orders. The judge emphasized that the procedural history of the case, including the return hearing, had already provided the Defendants with ample opportunity to contest the relief. Regarding the jurisdictional challenge, the Court relied on its prior findings:
As for the Jurisdiction Application, I am satisfied that the reasoning in my earlier judgment of 19 February 2025 addressed all relevant matters under RDC 12.1 and 23.1.
The Court concluded that the Defendants' arguments regarding the "consumer contract" status and the alleged procedural defects were either previously addressed or lacked merit. By determining the matter on the papers, the Court exercised its case management powers to prevent further procedural stagnation, confirming that the initial injunction was both procedurally sound and substantively justified.
Which specific DIFC statutes and RDC rules were central to the Court’s decision to dismiss the Defendants' applications?
The Court’s decision was grounded in several key legislative provisions and procedural rules. Article 22 of the DIFC Court Law served as the primary basis for the Court’s interim jurisdiction, while Article 32 was cited regarding the Court's power to grant interim protective relief. Additionally, Article 12(2) of the DIFC Arbitration Law was central to the Defendants' failed argument regarding the classification of the contract. Procedurally, the Court relied on RDC 4.2 and 4.2(6) for its case management and stay application powers, and RDC 12.1 and 23.1 for the jurisdictional challenge. RDC 44.19 was the specific rule under which the Application for Permission to Appeal was evaluated.
How did the Court distinguish or rely on previous precedents in the context of the anti-suit injunction and jurisdictional challenges?
The Court relied heavily on its own prior orders in this case, specifically the 6 February 2025 order and the 19 February 2025 reasons, to establish the continuity of its jurisdiction. The Court affirmed that it is not a requirement that the seat of arbitration be the DIFC for the Court to grant interim protective relief, a principle that reinforces the DIFC’s role as a supportive seat for international arbitration. The Court’s reasoning consistently rejected the notion that the English High Court proceedings should take precedence, citing the clear breach of the arbitration agreement as the primary driver for the anti-suit injunction.
What was the final disposition of the Court regarding the Defendants' applications, and what orders were made concerning costs?
The Court dismissed all three of the Defendants' applications: the Permission to Appeal Application, the Stay Application, and the Jurisdiction Application. Consequently, the interim anti-suit injunction remains in full force. Regarding costs, the Court ordered the Defendants to bear the financial burden of the proceedings:
The Defendants shall pay the Claimant’s costs of the Applications on the standard basis. A statement of costs, not exceeding three pages, shall be submitted within five working days.
What are the wider implications of this decision for practitioners dealing with anti-suit injunctions in the DIFC?
This decision reinforces the DIFC Court’s firm stance on upholding arbitration agreements, even when the seat of arbitration is not the DIFC. Practitioners must note that the Court is highly unlikely to entertain jurisdictional challenges once an interim injunction has been upheld after a return hearing. The high threshold for obtaining permission to appeal interlocutory orders in the DIFC is further solidified by this ruling. Litigants should anticipate that the Court will prioritize procedural efficiency and will not hesitate to dismiss multiple, successive applications that appear designed to delay the enforcement of arbitration clauses. For further context on the procedural strategy, see the sibling orders:
- NASHRAH v NAJEM [2025] DIFC ARB 005 — The Limits of Anti-Suit Injunctions in the Shadow of Redundant Arbitration Rules (5 February 2025)
- NASHRAH v NAJEM [2025] DIFC ARB 005 — The Limits of Anti-Suit Injunctions in the Shadow of Redundant Arbitration Rules (19 February 2025)
- NAJEM v NASHRAH [2025] DIFC ARB 005 — Permission to appeal an anti-suit injunction in air ambulance service dispute (30 July 2025)
- 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 Nashrah v Najem [2025] DIFC ARB 005?
The full judgment is available on the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/arbitration/arb-0052025-nashrah-v-1-najem-2-nex-4 or via the CDN link: https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/arbitration/DIFC_ARB-005-2025_20250623.txt.
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| Nashrah v Najem | [2025] DIFC ARB 005 | Primary case subject |
Legislation referenced:
- DIFC Court Law Article 22
- DIFC Court Law Article 32
- DIFC Arbitration Law Article 12(2)
- RDC 4.2
- RDC 4.2(6)
- RDC 12.1
- RDC 23.1
- RDC 44.19