On August 29, 2024, H.E. Justice Shamlan Al Sawalehi issued a definitive order in ARB 012/2023, rejecting in its entirety a set-aside application brought by Novak, Nola, and Nadim against Norwood and Numair. The ruling, delivered at 8:00 AM, effectively upheld the prior Recognition and Enforcement Order and the worldwide freezing order granted by Justice Sir Jeremy Cooke in May 2023. The Claimants had mounted a multi-pronged attack on the underlying ICC award, alleging jurisdictional overreach and violations of UAE public policy, but found the Court unmoved by their arguments regarding hearsay and the act of state doctrine.
For arbitration counsel and cross-border litigators, this decision serves as a critical reminder of the high threshold required to challenge an arbitral award within the DIFC jurisdiction. By reinforcing the principle that the DIFC Courts will not act as a court of appeal on the merits of an award—and by clarifying that the act of state doctrine does not provide a convenient shield for parties seeking to relitigate foreign-seated disputes—Justice Al Sawalehi has reaffirmed the pro-enforcement stance that defines the DIFC’s reputation as a premier seat for international arbitration.
How Did the Dispute Arise and What Was at Stake?
The genesis of the dispute lies in a sprawling, high-stakes international arbitration that culminated in an award of staggering proportions. Conducted under ICC Case No. Nelson, the underlying proceedings pitted Norwood and Numair against Novak, Nola, and Nadim. The arbitral tribunal was tasked with unraveling a complex web of corporate malfeasance, ultimately concluding that a critical sovereign determination—referred to as the Naeem Decision—had been procured through an unlawful means conspiracy involving bribery and the corruption of Naval state officials.
The financial consequences of the tribunal’s findings were monumental. The arbitrators awarded Numair USD 1,002.2 million in respect of the Naeem Decision Claim alone, supplemented by further millions for interest overpayments and related party transactions. Norwood secured an additional USD 129.2 million for a Call Option Claim and USD 99.6 million in interest. Faced with an aggregate liability well in excess of USD 1.2 billion, the losing parties—Novak, Nola, and Nadim (the Claimants in the present DIFC proceedings)—found themselves staring down the barrel of immediate, global enforcement.
The stakes escalated dramatically when Norwood and Numair moved to secure their victory. On 14 April 2023, they obtained a Recognition and Enforcement Order in the Dubai International Financial Centre (DIFC) Courts. Less than a month later, the enforcement net tightened when the court issued the Worldwide Freezing Order of Justice Sir Jeremy Cooke on 12 May 2023. This draconian injunction effectively paralyzed the Claimants' global asset base, forcing them to mount an aggressive, multi-front collateral attack to dismantle the enforcement architecture.
To break the freeze, the Claimants filed a set-aside application pursuant to Rules of the DIFC Courts (RDC) 43.54 to 43.56. Their strategy exemplifies a recurring tension in international commercial arbitration: the friction between the imperative of arbitral finality and the procedural ingenuity of losing parties who attempt to relitigate the merits by framing their grievances as jurisdictional or public policy defects. Similar to the procedural obstructionism analyzed in ARB 027/2024 Nalani v Netty, the Claimants sought to weaponize the narrow statutory grounds for annulment to secure a de facto appellate review of the tribunal's factual findings.
H.E. Justice Shamlan Al Sawalehi, however, maintained a strict, impenetrable focus on the statutory boundaries of the court's supervisory jurisdiction. He refused to entertain a rehash of the underlying evidentiary disputes, isolating the inquiry entirely to whether the award's recognition offended the fundamental legal order of the seat. The court's analytical perimeter was defined with absolute clarity:
My concern is to evaluate whether there is a public policy offence if the Award is permitted to be enforced in the DIFC jurisdiction only, and so on this point my focus will be on the Defence’s response to the specific submissions presented by the Claimants, and not a summary of the Defence’s perception of the Claimant’s intentions.
By anchoring the analysis strictly to the legitimacy of the Award in the DIFC jurisdiction, Justice Al Sawalehi signaled that the DIFC Courts will not serve as a forum for disappointed litigants to launder their substantive defeats through the machinery of enforcement challenges.
The Claimants sought to set aside the ICC award based on four distinct grounds, constructing a narrative that the tribunal had overstepped its jurisdictional mandate and violated fundamental tenets of UAE law. The court systematically dismantled this architecture, first by categorizing the lines of attack:
I accept that the Claimants present four grounds; a primary ground, and three grounds in the alternative; but the second and third grounds shall be consolidated as they both concern the evidence submitted by the same individual.
The primary ground rested on a sophisticated, albeit ultimately unsuccessful, invocation of the act of state doctrine. The Claimants argued that by finding the Naeem Decision was procured by corruption, the tribunal had impermissibly adjudicated upon the sovereign acts of a foreign state (Naval), thereby offending UAE public policy. The Defendants countered that such a doctrine does not even exist under UAE law. Justice Al Sawalehi’s resolution of this doctrinal clash provides a critical clarification of DIFC jurisprudence. He confirmed the doctrine's existence within the enclave, but carefully circumscribed its application:
It is clear that the act of state doctrine exists in DIFC Law simply on the concept that the DIFC, as its own jurisdiction, is still bound by the public policy of the UAE and of international legal matters as a part of the UAE.
Crucially, the court distinguished between a tribunal invalidating a sovereign act and a tribunal assessing the tortious conduct of private parties who corruptly procured that act. Because the ICC tribunal's findings penalized the unlawful means conspiracy without purporting to strike down the Naeem Decision within Naval's own legal order, the jurisdictional boundary established by the act of state doctrine remained intact. The tribunal had not usurped sovereign authority; it had merely priced the cost of the Claimants' corruption.
The consolidated second and third grounds shifted the attack from sovereign immunity to evidentiary propriety. The Claimants alleged that the tribunal had improperly relied on hearsay and breached confidentiality obligations, specifically pointing to evidence provided by individuals named Nisham and Nivan. They argued that the admission of this evidence violated Article 432 of the UAE Criminal Code, which governs the disclosure of secrets.
This argument represents a classic attempt to elevate a routine procedural grievance regarding the admissibility of evidence into a public policy violation. Justice Al Sawalehi rejected the premise entirely. He noted that the information in question—shared among shareholders and third parties via the "Novak Spreadsheet"—lacked the requisite confidentiality to constitute a protected secret. Furthermore, the court found that the tribunal's ultimate conclusions were insulated from the contested evidence entirely:
I do not find that the Tribunal relied on Mr Nivan's evidence to reach their conclusion, nor do I find that if they had done or not done so, any alternative conclusion would have been reached.
By confirming that the tribunal's findings were robustly supported by independent, compelling evidence, the court reinforced the principle that arbitral tribunals enjoy broad discretion in their evaluation of the factual record. A mere disagreement over the weight or admissibility of specific witness testimony cannot cross the high threshold required to trigger an annulment under Article 41(2)(b)(iii) of the DIFC Arbitration Law. To hold otherwise would transform the DIFC Court of First Instance into a court of ordinary appeal, fatally undermining the efficiency of the arbitral regime.
The fourth and final ground of the Claimants' application centered on the specter of parallel proceedings and annulled awards. The Claimants asserted that the ICC tribunal had improperly anchored its findings on a prior arbitration—the "Nathan Award"—which had subsequently been struck down by the Nazir Court of Cassation.
Finally, the Claimants submit that the Tribunal’s reliance on the Nathan Award in the Final Award is contrary to public policy has the Nathan Award was annulled and remains annulled by the Nazir Court of Cassation.
This argument, designed to suggest that the ICC award was infected by the nullity of the Nathan Award, collapsed upon a basic reading of the tribunal's own reasoning. The ICC arbitrators had explicitly concluded that the Nathan Award did not give rise to an issue estoppel in the Nelson proceedings. The tribunal had conducted its own de novo assessment of the corruption allegations, rendering the status of the Nathan Award legally irrelevant to the final outcome.
In dismissing these four grounds, Justice Al Sawalehi anchored his reasoning in established appellate authority, ensuring the decision aligns with the broader trajectory of DIFC arbitration jurisprudence. The court explicitly relied on prior appellate guidance to foreclose the Claimants' expansive interpretation of public policy:
In my view, the most compelling evidence to reject the Claimant’s position on this matter is the Lachesis v Lacrosse [2021] DIFC CA 005 precedent.
The reliance on Lachesis v Lacrosse serves as a doctrinal warning shot to future litigants. It confirms that the DIFC Courts will apply a highly restrictive interpretation of public policy, reserving annulment only for those rare instances where enforcement would violate the most basic notions of morality and justice within the UAE. The Claimants' attempt to stretch the act of state doctrine, weaponize criminal confidentiality statutes, and mischaracterize the tribunal's evidentiary reliance all failed to meet this exacting standard. The stakes were undeniably high—a billion-dollar liability and a frozen global portfolio—but the court demonstrated that the magnitude of the financial exposure cannot alter the strict statutory parameters of arbitral review. Finality, in the DIFC, remains paramount.
How Did the Case Move From Ex Parte Application to Final Hearing?
The procedural architecture of ARB 012/2023 provides a masterclass in how the Dubai International Financial Centre (DIFC) Courts manage high-stakes, multi-jurisdictional enforcement battles. The trajectory from the initial ex parte asset preservation to the exhaustive inter partes scrutiny of the set-aside application demonstrates a judiciary that is aggressively pro-enforcement at the outset, yet meticulously deliberative when fundamental questions of jurisdiction and public policy are raised. The stakes in the underlying ICC Case No. Nelson were astronomical, with the Tribunal awarding Numair USD 1,002.2 million in respect of the Naeem Decision Claim alone, alongside a further USD 129.2 million to Norwood for the Call Option Claim. Faced with an award of this magnitude—predicated on explosive findings of unlawful means conspiracy, bribery, and the corruption of Naval state officials—the DIFC Court’s procedural management had to balance the immediate risk of asset dissipation against the Claimants' right to mount a robust jurisdictional defense.
The enforcement campaign commenced with a decisive ex parte strike. The Recognition and Enforcement Order dated 14 April 2023 in case number ARB-009-2023 established the initial jurisdictional foothold for the Defendants. By securing this order under Article 42(1) of the DIFC Arbitration Law, the Defendants transformed the ICC Award into a recognized domestic judgment, setting the stage for immediate coercive action. This rapid recognition is a hallmark of the DIFC’s enforcement regime, frequently seen in parallel dockets such as ARB-009-2023: ARB 009/2023 Mirifa v (1) Mahur (2) Meison (3) Mepur, where the Court prioritizes the swift crystallization of arbitral debts.
Armed with the R&E Order, the Defendants moved swiftly to lock down the Claimants' global asset network. This culminated in the Worldwide Freezing Order of Justice Sir Jeremy Cooke dated 12 May 2023. The issuance of a WFO by a judge of Sir Jeremy Cooke’s standing underscores the gravity with which the Court viewed the risk of dissipation, particularly given the Tribunal's underlying findings of systemic corruption and conspiracy. The ex parte phase was thus characterized by maximum judicial velocity, designed to secure the perimeter before the substantive legal battle commenced.
The procedural posture shifted dramatically from offense to defense when the Claimants initiated their counterattack. The Set Aside Application filed by the Claimants on 20 June 2023 invoked Rules of the DIFC Courts (RDC) 43.54 to 43.56, effectively halting the unencumbered execution of the Award and forcing a comprehensive review of the Tribunal's jurisdictional mandate. From this point, H.E. Justice Shamlan Al Sawalehi imposed a rigorous, structured timetable to ensure that the complex allegations of public policy violations and act of state infringements were fully ventilated through adversarial testing.
The Court did not rush to a summary disposition. Instead, it mandated a deep evidentiary build-up. The procedural record shows a methodical accumulation of testimony, beginning with the First Witness Statement of Nader dated 20 June 2023 filed in support of the set-aside application, followed by the Respondent Witness Statement of Nikolai on 15 September 2023. Because the Claimants' arguments hinged heavily on the interaction between UAE public policy and the sovereign acts of the Naval state, the Court required specialized guidance, leading to the Expert Reports filed on 15 December 2023. This eight-month preparatory phase illustrates the DIFC Court’s refusal to treat set-aside applications as mere procedural formalities; when a party alleges that an award offends the fundamental legal order of the UAE, the Court demands exhaustive, expert-led briefing.
By the time the parties convened for the Application Hearing on 19 February 2024, the evidentiary record was massive. H.E. Justice Shamlan Al Sawalehi’s task was to distill this voluminous record into a strict legal inquiry under Article 41(2)(b)(iii) of the DIFC Arbitration Law. The Claimants attempted to broaden the scope of the hearing, urging the Court to scrutinize the Defendants' broader strategic intentions and the Tribunal's reliance on allegedly tainted evidence. The Court, however, maintained a surgical focus on the statutory threshold for non-enforcement. H.E. Justice Shamlan Al Sawalehi explicitly narrowed the parameters of the judicial review:
My concern is to evaluate whether there is a public policy offence if the Award is permitted to be enforced in the DIFC jurisdiction only, and so on this point my focus will be on the Defence’s response to the specific submissions presented by the Claimants, and not a summary of the Defence’s perception of the Claimant’s intentions.
This framing is critical. It reinforces the doctrine that the DIFC Court is not an appellate tribunal for ICC arbitrations. Its mandate is strictly territorial and statutory: does the enforcement of the Award within the DIFC rupture the public policy of the UAE?
The Claimants' primary weapon in this regard was the act of state doctrine. They argued that by finding the Naeem Decision was procured by the corruption of Naval state officials, the Tribunal had impermissibly adjudicated upon the sovereign acts of a foreign state, thereby offending UAE public policy. The Court’s handling of this argument required a delicate balancing of DIFC common law principles and UAE sovereign interests. H.E. Justice Shamlan Al Sawalehi confirmed the doctrine's application within the jurisdiction, but severely limited its utility as a shield against enforcement:
I therefore agree that the act of state doctrine exists in DIFC Law as it does to the extent in English Law; not because the DIFC imports English Law where convenient, but because both jurisdictions are equally affected by the principle of the doctrine, given that each jurisdiction is just as sophisticated and permitted to non-interference as the other.
Crucially, the Court found that the Tribunal had not breached this doctrine because its findings of unlawful means conspiracy did not invalidate the Naeem Decision within Naval jurisdiction itself. The Tribunal merely assessed the financial damage caused by the corrupt procurement of that decision. By drawing this distinction, the Court preserved the enforceability of the Award without trampling on foreign sovereign immunity, demonstrating a highly sophisticated application of private international law.
The Court applied the same rigorous, boundary-setting logic to the Claimants' evidentiary challenges. The Claimants argued that the Tribunal had improperly relied on hearsay and breached confidentiality obligations, specifically pointing to the "Nisham evidence" involving the Novak Spreadsheet and the Neda Invoice. The Court dismantled this argument by referencing Article 432 of the UAE Criminal Code, finding that the shared information did not constitute a protected "secret" because third parties and shareholders were already involved. Furthermore, the Court noted that the Tribunal's findings were independently supported by compelling evidence, rendering the evidentiary complaints moot. In dismissing these grounds, H.E. Justice Shamlan Al Sawalehi anchored his reasoning in established appellate authority, stating that the most compelling evidence to reject the Claimants' position was the Lachesis v Lacrosse [2021] DIFC CA 005 precedent, which strictly limits a supervisory court's ability to second-guess a tribunal's evidentiary weightings.
The final prong of the Claimants' attack sought to leverage parallel foreign annulment proceedings to derail the DIFC enforcement. The Claimants argued that the ICC Tribunal had relied upon a prior award that had subsequently been struck down in a foreign jurisdiction:
Finally, the Claimants submit that the Tribunal’s reliance on the Nathan Award in the Final Award is contrary to public policy has the Nathan Award was annulled and remains annulled by the Nazir Court of Cassation.
The Court rejected this attempt to import foreign annulment decisions into the DIFC public policy analysis. The Tribunal had explicitly concluded that the Nathan Award did not give rise to an issue estoppel in the Arbitration Proceedings. Therefore, the subsequent annulment of the Nathan Award by the Nazir Court of Cassation had no bearing on the independent findings of corruption and conspiracy made by the ICC Tribunal in the Nelson Award.
The issuance of the final order on 29 August 2024, delivered precisely at 8:00 AM, brought the 16-month procedural arc to a definitive close. By rejecting the Set Aside Application entirely and upholding both the April 2023 R&E Order and the May 2023 Worldwide Freezing Order, the DIFC Court validated its own procedural model. The timeline proves that the Court will grant immediate, draconian interim relief to secure assets, but will subsequently afford award debtors a full, expert-driven evidentiary process to argue their set-aside grounds. However, as ARB 012/2023 starkly illustrates, affording procedural due process does not equate to lowering the substantive legal bar. The threshold for proving a breach of UAE public policy or an excess of jurisdiction remains exceptionally high, and creative deployments of the act of state doctrine or foreign annulment decisions will not suffice to overturn a comprehensively reasoned arbitral award.
What Is the 'Act of State' Doctrine and Why Does It Matter Here?
The intersection of international arbitration and sovereign authority frequently generates complex enforcement battles, particularly when an arbitral tribunal makes findings of corruption involving state officials. In Novak v Norwood [2024] DIFC ARB 012, the Claimants—Novak, Nola, and Nadim—attempted to weaponize the "act of state" doctrine to dismantle a multi-billion-dollar ICC award. They argued that the Tribunal, by concluding that a foreign state decision was procured by bribery, had impermissibly judged the sovereign acts of a foreign nation, thereby offending UAE public policy. H.E. Justice Shamlan Al Sawalehi’s ruling systematically dismantles this argument, clarifying that while the act of state doctrine is firmly embedded in the legal framework of the Dubai International Financial Centre (DIFC), it serves as a shield for sovereign territorial integrity, not a sword to invalidate foreign arbitral awards.
The factual matrix of the underlying arbitration set the stage for this high-stakes doctrinal clash. The ICC Tribunal in Case No. Nelson had determined that a specific foreign regulatory action, referred to as the "Naeem Decision," was the product of an unlawful means conspiracy involving bribery and the corruption of Naval state officials. Based on this finding, the Tribunal awarded staggering damages, including USD 1,002.2 million to Numair in respect of the Naeem Decision Claim alone. Facing enforcement of this massive liability in the DIFC, the Claimants launched a set-aside application under Rules of the DIFC Courts (RDC) 43.54 to 43.56, asserting that the Tribunal had overstepped its jurisdictional bounds by adjudicating the validity of a foreign sovereign act.
The Defendants, Norwood and Numair, met this challenge with a categorical denial of the doctrine's applicability. They argued that the Claimants were attempting to import a defense that either did not exist in the relevant governing law or was entirely misapplied to the facts of the arbitration.
The Defendants reject the Claimant’s position that enforcement of the Award would offend UAE public policy because the tribunal infringed the act of state doctrine, as such doctrine does not exist under UAE law, and if it does, it was not offended.
Faced with this binary dispute over the very existence of the doctrine within the jurisdiction, H.E. Justice Al Sawalehi provided a definitive jurisprudential answer. He confirmed that the act of state doctrine is indeed recognized within the DIFC, anchoring its existence not merely in statutory text, but in the fundamental constitutional architecture of the Centre and its relationship with the broader United Arab Emirates.
It is clear that the act of state doctrine exists in DIFC Law simply on the concept that the DIFC, as its own jurisdiction, is still bound by the public policy of the UAE and of international legal matters as a part of the UAE.
This articulation is critical for cross-border practitioners. It establishes that the DIFC Courts do not operate in a vacuum; their adherence to international legal norms, including the respect for foreign sovereign acts, is an extension of the UAE's own public policy commitments. However, the Court went further, drawing a deliberate parallel with English common law to explain the mechanics of the doctrine's application. The judge emphasized that the alignment with English law on this specific issue is not a matter of blind transplantation, but a reflection of shared judicial maturity.
I therefore agree that the act of state doctrine exists in DIFC Law as it does to the extent in English Law; not because the DIFC imports English Law where convenient, but because both jurisdictions are equally affected by the principle of the doctrine, given that each jurisdiction is just as sophisticated and permitted to non-interference as the other.
Having established the doctrine's firm footing in DIFC law, the Court then turned to the pivotal question: Did the ICC Tribunal breach this doctrine by finding that the Naeem Decision was procured by corruption? The Claimants’ argument hinged on the premise that any arbitral finding of state-level bribery inherently invalidates the resulting state act, thereby violating the non-interference principle.
H.E. Justice Al Sawalehi rejected this expansive interpretation, drawing a sharp boundary around what the act of state doctrine actually protects. The doctrine prevents a court or tribunal from ruling that a sovereign act is legally invalid within that sovereign's own territory. It does not, however, grant immunity to private parties who engage in unlawful conspiracies to procure those acts, nor does it prevent a tribunal from assessing the financial consequences of such conspiracies.
Their findings, in my view, do not affect nor comment on the validity of the decision within Naval jurisdiction, and so that boundary set by the doctrine has not been breached by the Tribunal.
This distinction is the analytical core of the judgment. The ICC Tribunal did not purport to strike down the Naeem Decision or alter its legal effect within the Naval jurisdiction. Instead, the Tribunal examined the conduct of the Claimants—specifically, their unlawful means conspiracy—and quantified the damages resulting from that conduct. By separating the assessment of private liability for corruption from the formal validity of the sovereign act itself, the Court preserved the enforceability of the Award without trampling on foreign state sovereignty.
The Claimants’ attempt to elevate this jurisdictional grievance into a public policy challenge under Article 41(2)(b)(iii) of the DIFC Arbitration Law ultimately collapsed against this strict boundary. The Court maintained a laser focus on the specific statutory criteria for refusing enforcement, refusing to be drawn into a broader relitigation of the Tribunal's factual findings regarding the corruption.
My concern is to evaluate whether there is a public policy offence if the Award is permitted to be enforced in the DIFC jurisdiction only, and so on this point my focus will be on the Defence’s response to the specific submissions presented by the Claimants, and not a summary of the Defence’s perception of the Claimant’s intentions.
This disciplined approach to public policy challenges aligns with the DIFC Courts' broader trajectory of protecting the integrity of arbitral enforcement. As seen in cases like ARB-009-2019: ARB 009/2019 Ocie v Ortensia, the threshold for proving that an award offends UAE public policy is exceptionally high. It requires demonstrating a violation of the most basic notions of morality and justice, not merely identifying a complex intersection between private claims and foreign regulatory actions. The Court noted that the parameters of this high threshold were largely uncontested by the legal specialists involved in the case.
Therefore, the offence to public policy pursuant to Article 41(2)(b)(iii) of the DIFC Arbitration Law was agreed by the UAE and Naval Law experts.
The Claimants also attempted to bolster their public policy attack by pointing to the Tribunal's treatment of a separate, related arbitration—the Nathan Award. They argued that the Tribunal's reliance on the Nathan Award was inherently offensive to public policy because that specific award had been annulled and remains annulled by the Nazir Court of Cassation. However, the Court found that the Tribunal had explicitly concluded that the Nathan Award did not give rise to an issue estoppel in the present proceedings. The Tribunal's independent findings of unlawful means conspiracy stood on their own evidentiary merits, rendering the status of the Nathan Award irrelevant to the fundamental validity of the Nelson Award.
Ultimately, Novak v Norwood serves as a definitive guide on the limits of the act of state doctrine in the context of arbitral enforcement. The ruling confirms that while the DIFC respects the sovereign acts of foreign nations, it will not allow award debtors to use that respect as a loophole to escape liability for corruption and conspiracy. By carefully delineating the boundary between invalidating a state act and penalizing the unlawful procurement of that act, H.E. Justice Al Sawalehi has reinforced the DIFC’s status as a sophisticated, pro-enforcement jurisdiction capable of navigating the most complex intersections of public international law and private commercial arbitration.
How Did Justice Al Sawalehi Address the Allegations of Hearsay Evidence?
The Claimants’ multi-pronged assault on the ICC Award in Novak v Norwood hinged significantly on an evidentiary grievance: the allegation that the Tribunal improperly admitted and relied upon hearsay and unlawfully obtained evidence. In international arbitration, evidentiary challenges frequently masquerade as public policy objections under Article 41(2)(b)(iii) of the DIFC Arbitration Law. However, H.E. Justice Shamlan Al Sawalehi dismantled this narrative, reinforcing the formidable barrier facing award debtors who seek to relitigate arbitral fact-finding. The Court’s approach was methodical, isolating the contested evidence and evaluating its actual impact on the Tribunal’s dispositive findings, ultimately refusing to disturb the Worldwide Freezing Order of Justice Sir Jeremy Cooke that underpinned the enforcement.
Justice Al Sawalehi began by streamlining the Claimants' objections. Rather than treating each evidentiary complaint as a distinct legal crisis requiring separate adjudication, the Court recognized the overlapping nature of the grievances. The Claimants had structured their Set Aside Application filed by the Claimants with multiple alternative arguments, attempting to create a cumulative sense of procedural unfairness. The Court cut through this procedural thicket with decisive clarity:
I accept that the Claimants present four grounds; a primary ground, and three grounds in the alternative; but the second and third grounds shall be consolidated as they both concern the evidence submitted by the same individual.
By consolidating the second and third grounds, the Court focused the inquiry on the specific individual whose testimony and documentary submissions formed the crux of the hearsay and confidentiality allegations. The Claimants advanced a bold theory: that the admission of this evidence violated UAE public policy because it breached confidentiality obligations, specifically invoking Article 432 of the UAE Criminal Code. This tactic—attempting to elevate a dispute over commercial confidentiality into a criminal public policy violation—is a familiar strategy in the region, designed to trigger the narrow public policy exception to enforcement and force the supervisory court to review the First Witness Statement of Nader through a quasi-criminal lens.
The Court, however, scrutinized the substantive nature of the information in question. Justice Al Sawalehi determined that the data shared did not meet the statutory definition of a "secret" under the invoked criminal provision. The information had already been circulated among shareholders and third parties, stripping it of the necessary confidential character required to sustain a public policy challenge.
As for the Nisham’s evidence, I agree that the information delivered was not a “secret” pursuant to Article 432 of the UAE Criminal Code as Naeem shareholders and third parties were involved in the sharing of the information on the Novak Spreadsheet, Letter and Neda Invoice and so there was no employee (current or former) confidentiality obligation to breach.
This finding is critical for practitioners advising on UAE-seated or DIFC-enforced arbitrations. It signals that the DIFC Courts will not accept superficial allegations of criminal confidentiality breaches to derail an award. The party alleging the breach must prove that the information genuinely retained its secret status and that a strict legal obligation was violated. Here, the widespread internal distribution of the financial data neutralized the public policy argument at its inception, rendering the Claimants' reliance on Article 432 entirely ineffective.
Moving beyond the confidentiality aspect, the Court addressed the core of the hearsay complaint regarding Mr. Nivan's evidence. The Claimants argued that the Tribunal's reliance on this allegedly flawed testimony tainted the entire Award, necessitating a complete set-aside. Justice Al Sawalehi’s response was unequivocal and struck at the heart of the causation requirement in set-aside applications. After a thorough review of the Respondent Witness Statement of Nikolai, he found that the Tribunal had not, in fact, relied on the contested evidence to reach its dispositive conclusions.
I do not find that the Tribunal relied on Mr Nivan's evidence to reach their conclusion, nor do I find that if they had done or not done so, any alternative conclusion would have been reached.
This dual-layered rejection is a masterclass in judicial restraint regarding arbitral awards. First, the Court deferred to the Tribunal's own articulation of its reasoning, noting that the arbitrators had explicitly excluded the problematic evidence from their critical path to liability. Second, Justice Al Sawalehi applied a rigorous counterfactual test: even if the Tribunal had relied on Mr. Nivan's hearsay evidence, the outcome would have remained identical. This robust approach ensures that minor evidentiary missteps—even if they were to occur—cannot be weaponized to annul an award unless they fundamentally alter the tribunal's ultimate determination.
The Court's reasoning aligns with a broader jurisprudential trend in the DIFC, which heavily penalizes attempts to disguise merits-based appeals as procedural or public policy challenges. As explored in ARB-043-2025: ARB 043/2025 Oratio v Orangia, the DIFC Courts are increasingly vigilant against parties who seek to relitigate the weight and admissibility of evidence under the guise of due process violations. Justice Al Sawalehi’s ruling in Novak reinforces this boundary, making it clear that the evaluation of evidence—including hearsay—falls squarely within the exclusive mandate of the arbitral tribunal.
To further insulate the Award from the Claimants' attacks, the Court emphasized the overwhelming strength of the untainted evidence. The Tribunal's findings of unlawful means conspiracy and corruption were not fragile constructs dependent on a single witness; they were supported by a robust evidentiary matrix that the arbitrators had meticulously evaluated.
As well as their explicit statements excluding the evidence, I find that the evidence analysed was compelling enough to direct the Tribunal’s determination.
By highlighting the inherently compelling nature of the remaining evidence, Justice Al Sawalehi underscored the commercial futility of the Claimants' strategy. When a tribunal is presented with a mountain of data justifying massive financial compensation—including the Naeem Decision Claim, USD 1,002.2 million and the Call Option Claim for USD 129.2 million—attacking a single pebble of hearsay will not cause the mountain to crumble. The Court recognized that international arbitral tribunals are uniquely equipped to sift through complex, often imperfect evidentiary records, assigning appropriate weight to different testimonies and documents without requiring the rigid evidentiary rules of a domestic trial court.
The Court also anchored its dismissal of the evidentiary challenge in established DIFC precedent, specifically pointing to prior appellate authority that limits the scope of judicial intervention in arbitral fact-finding. After hearing counsel for the Claimant and counsel for the Defendant, the Court found that the governing law on this issue was already well-settled.
In my view, the most compelling evidence to reject the Claimant’s position on this matter is the Lachesis v Lacrosse [2021] DIFC CA 005 precedent.
While the specific contours of the Lachesis precedent involve complex questions of issue estoppel and evidentiary thresholds, its invocation here serves a clear doctrinal purpose: to remind practitioners that the DIFC Court of Appeal has already settled the debate over how much deference is owed to a tribunal's evidentiary rulings. The Novak decision does not forge new law in this regard; rather, it rigorously applies the existing, pro-enforcement framework that defines the jurisdiction. The Claimants' failure to distinguish their case from this binding precedent proved fatal to their application.
Ultimately, Justice Al Sawalehi’s handling of the hearsay and confidentiality allegations provides a definitive blueprint for how the DIFC Courts will process similar challenges in the future. The ruling establishes a sequential hurdle for award debtors: first, they must prove that the tribunal actually relied on the contested evidence; second, they must demonstrate that the information was genuinely protected by a strict legal or public policy mandate; and third, they must show that the exclusion of this evidence would have fundamentally altered the tribunal's final determination. By failing on all three fronts, the Claimants in Novak demonstrated the extreme difficulty of overturning an ICC award in the DIFC based on evidentiary grievances. The integrity of the arbitral process, and the finality of the resulting award, remain paramount, immune to collateral attacks disguised as public policy imperatives.
Which Earlier DIFC Cases Frame This Decision?
The architecture of the Dubai International Financial Centre’s arbitration jurisprudence is defined by a rigorous adherence to the New York Convention and a profound reluctance to permit set-aside applications to masquerade as substantive appeals. In Novak v Norwood, H.E. Justice Shamlan Al Sawalehi anchors his dismissal of the Claimants’ multi-pronged attack firmly within this established doctrinal framework. The Court’s approach to the public policy exception—historically the most abused mechanism in enforcement resistance—relies heavily on the appellate boundaries drawn in recent years, explicitly positioning the present dispute within a continuum of pro-enforcement authority.
To understand the Court’s swift disposal of the Claimants’ arguments regarding UAE public policy, one must look to the specific precedent H.E. Justice Al Sawalehi invokes to shut down the inquiry. The Claimants attempted to argue that the underlying ICC tribunal’s findings of corruption and its handling of evidence offended the fundamental legal order of the United Arab Emirates. The Court, however, refused to engage in a sprawling review of UAE domestic policy, instead narrowing the lens strictly to the mechanics of enforcement within the financial free zone.
In my view, the most compelling evidence to reject the Claimant’s position on this matter is the Lachesis v Lacrosse [2021] DIFC CA 005 precedent.
By invoking Lachesis v Lacrosse, the Court signals a hardline stance against expansive interpretations of Article 41(2)(b)(iii) of the DIFC Arbitration Law. The Lachesis standard dictates that the public policy exception is exceptionally narrow, triggered only when enforcement would violate the most basic notions of morality and justice in the enforcing forum. The Claimants in Novak sought to stretch this exception to cover alleged procedural missteps and evidentiary disputes, a tactic the DIFC Courts have systematically dismantled over the past decade. The Court’s reliance on Lachesis serves as a doctrinal firewall, preventing the re-litigation of the tribunal’s factual findings regarding the Naeem Decision and the complex web of unlawful means conspiracy.
This strict jurisdictional focus is further illuminated by the Court’s framing of its own mandate. H.E. Justice Al Sawalehi makes it abundantly clear that the DIFC Court is not a roving commission tasked with policing the substantive correctness of international arbitral awards. The inquiry is geographically and legally ring-fenced.
My concern is to evaluate whether there is a public policy offence if the Award is permitted to be enforced in the DIFC jurisdiction only, and so on this point my focus will be on the Defence’s response to the specific submissions presented by the Claimants, and not a summary of the Defence’s perception of the Claimant’s intentions.
This evaluate whether there is a public policy offence strictly within the DIFC jurisdiction echoes the foundational principles established in earlier conduit-jurisdiction battles. The DIFC has long protected its status as a sophisticated enforcement hub, a trajectory cemented by cases such as ARB-003-2013: Banyan Tree Corporate PTE Ltd v Meydan Group LLC [2013] DIFC ARB 003. Just as Banyan Tree confirmed the DIFC Courts’ willingness to enforce awards irrespective of the parties' geographic nexus to the free zone, Novak v Norwood confirms that the public policy defense cannot be weaponised by importing external domestic grievances into the DIFC’s enforcement machinery.
The tension between domestic UAE law and the DIFC’s common law framework reached its apex in the Claimants’ arguments concerning the act of state doctrine. The Claimants asserted that the ICC Tribunal had impermissibly adjudicated upon the sovereign acts of Naval state officials, thereby offending UAE public policy. The Defendants countered with a blunt jurisdictional argument, asserting that the act of state doctrine does not even exist under UAE law, and therefore could not form the basis of a public policy challenge.
H.E. Justice Al Sawalehi navigates this clash by articulating a sophisticated vision of DIFC law—one that is indigenous, mature, and capable of housing international legal principles without merely acting as a passive receptacle for English common law.
I therefore agree that the act of state doctrine exists in DIFC Law as it does to the extent in English Law; not because the DIFC imports English Law where convenient, but because both jurisdictions are equally affected by the principle of the doctrine, given that each jurisdiction is just as sophisticated and permitted to non-interference as the other.
This is a critical jurisprudential marker. The Court acknowledges that the act of state doctrine exists in DIFC Law, but grounds its existence in the DIFC’s own status as a mature commercial forum bound by international legal norms, rather than a mere colonial hangover. By establishing that the doctrine exists, the Court validates the theoretical basis of the Claimants' argument, only to dismantle its factual application. The Court found that the Tribunal’s findings regarding corruption did not invalidate any sovereign act within Naval jurisdiction; they merely assessed the commercial consequences of that corruption between the private parties. The boundary set by the doctrine remained unbreached, rendering the public policy challenge moot.
The Claimants’ attempts to unseat the award also relied heavily on attacking the Tribunal’s treatment of evidence, specifically the testimony of individuals referred to as Nisham and Nivan. The Claimants alleged that the Tribunal relied on hearsay and information obtained in breach of confidentiality obligations, specifically citing Article 432 of the UAE Criminal Code. They argued that enforcing an award tainted by such evidence would fundamentally offend UAE public policy.
The Court’s dismissal of these evidentiary complaints reinforces the high threshold for set-aside applications. H.E. Justice Al Sawalehi refused to be drawn into a granular reassessment of the evidentiary record. Regarding Nisham’s evidence, the Court agreed with the Tribunal that the information shared on the Novak Spreadsheet and related invoices was not a legally protected "secret," as third parties and shareholders were already involved. There was no confidentiality obligation to breach, and thus no criminal offense to trigger a public policy violation.
The attack on Mr. Nivan’s evidence met a similarly abrupt end. The Claimants attempted to argue that the Tribunal’s conclusions were fatally infected by improper reliance on his testimony. The Court, maintaining its deferential posture toward the arbitral tribunal’s fact-finding mandate, rejected the premise entirely.
I do not find that the Tribunal relied on Mr Nivan's evidence to reach their conclusion, nor do I find that if they had done or not done so, any alternative conclusion would have been reached.
By stating that the Tribunal’s ultimate determination was supported by other compelling evidence, the Court insulates the award from collateral attacks based on isolated evidentiary disputes. This approach aligns perfectly with the DIFC’s broader arbitration jurisprudence, which consistently holds that procedural imperfections or disputed evidentiary rulings do not equate to a violation of public policy unless they result in a fundamental denial of due process. The Claimants failed to demonstrate that the Tribunal’s handling of the evidence crossed this severe threshold.
Finally, the Claimants sought to leverage the status of the Nathan Award to derail enforcement. They argued that because the ICC Tribunal had referenced the Nathan Award in its Final Award, the entire edifice was structurally unsound, as the Nathan Award had been nullified in a foreign jurisdiction.
Finally, the Claimants submit that the Tribunal’s reliance on the Nathan Award in the Final Award is contrary to public policy has the Nathan Award was annulled and remains annulled by the Nazir Court of Cassation.
The Court’s rejection of this ground underscores the principle of arbitral finality. The fact that a related award is annulled and remains annulled by the Nazir Court of Cassation does not automatically poison a subsequent, independent arbitral proceeding that happens to reference it. The ICC Tribunal in the Nelson Arbitration conducted its own extensive fact-finding regarding the unlawful means conspiracy and the bribery of state officials. The Tribunal explicitly noted that the Nathan Award did not give rise to an issue estoppel. Consequently, the DIFC Court found no basis to conclude that the mere mention or contextual reliance on an annulled foreign award constitutes a breach of the DIFC’s public policy.
Ultimately, H.E. Justice Al Sawalehi’s reasoning in Novak v Norwood is a masterclass in judicial restraint. By anchoring the decision in the restrictive public policy framework of Lachesis v Lacrosse and refusing to allow domestic criminal statutes or foreign annulment proceedings to dictate the enforceability of an international award within the free zone, the Court preserves the integrity of the DIFC Arbitration Law. The ruling sends a definitive message to practitioners: the DIFC Courts will not entertain set-aside applications that attempt to re-litigate the merits under the guise of public policy, nor will they import foreign legal doctrines unless those doctrines align with the DIFC’s own sophisticated, pro-arbitration architecture.
How Does the DIFC Approach Compare to International Standards?
The DIFC Courts operate at a highly scrutinised intersection of international commercial arbitration norms and the sovereign legal framework of the United Arab Emirates. In Novak v Norwood [2024] DIFC ARB 012, H.E. Justice Shamlan Al Sawalehi confronted a direct challenge to this delicate balance. The Claimants sought to weaponise the act of state doctrine and UAE public policy to dismantle an ICC award that had already secured a Recognition and Enforcement Order from Justice Sir Jeremy Cooke in May 2023. The resulting judgment provides a masterclass in how the DIFC aligns its enforcement regime with global standards while rigorously enforcing local statutory boundaries, ultimately confirming that the Set Aside Application is rejected entirely.
At the heart of the Claimants' strategy was the assertion that the arbitral tribunal had impermissibly ruled on the sovereign acts of a foreign state (the "Naval" state), thereby violating the act of state doctrine. The underlying arbitration involved staggering sums, with the Tribunal awarding over USD 1,002.2 million to Numair in respect of the Naeem Decision Claim alone, based on findings of unlawful means conspiracy and the bribery of Naval state officials. The Defendants countered the set-aside attempt by arguing that the act of state doctrine does not exist under UAE law, and therefore could not form the basis of a public policy challenge. Justice Al Sawalehi rejected the Defendants' blanket dismissal, confirming that the doctrine is indeed part of the DIFC's legal fabric, but he did so by anchoring it firmly in the UAE's broader public policy framework rather than merely importing English common law wholesale.
It is clear that the act of state doctrine exists in DIFC Law simply on the concept that the DIFC, as its own jurisdiction, is still bound by the public policy of the UAE and of international legal matters as a part of the UAE.
This formulation is critical for international practitioners to understand. It dispels the persistent myth that the DIFC operates as an offshore island of English law disconnected from its host state. Instead, the Court explicitly acknowledged that the DIFC is bound by the public policy of the UAE. Yet, the application of the act of state doctrine in this jurisdiction mirrors the sophisticated non-interference principles found in leading international arbitration hubs like London, Paris, or Geneva. Justice Al Sawalehi elaborated on this comparative alignment:
I therefore agree that the act of state doctrine exists in DIFC Law as it does to the extent in English Law; not because the DIFC imports English Law where convenient, but because both jurisdictions are equally affected by the principle of the doctrine, given that each jurisdiction is just as sophisticated and permitted to non-interference as the other.
By equating the DIFC's sophistication with that of English law, the Court reinforced the jurisdiction's commitment to international standards of arbitral autonomy. The Tribunal's findings regarding corruption in the procurement of the Naeem Decision were deemed not to infringe upon the sovereign boundaries of the Naval state. The Court noted that the Tribunal's conclusions do not affect nor comment on the validity of the foreign state's decisions within its own borders. This distinction is a hallmark of modern international arbitration, allowing tribunals to adjudicate commercial fraud and corruption claims between private parties without improperly invalidating foreign sovereign acts or triggering non-justiciability rules.
The Claimants' multi-pronged attack also tested the DIFC's approach to evidentiary standards and local criminal statutes. They alleged that the Tribunal improperly relied on confidential information and hearsay evidence, specifically pointing to "Nisham's evidence" and arguing a breach of Article 432 of the UAE Criminal Code. In assessing this, the Court had to determine whether the admission of such evidence constituted a breach of UAE public policy severe enough to warrant setting aside the award under Article 41(2)(b)(iii) of the DIFC Arbitration Law.
Justice Al Sawalehi's analysis of the evidentiary claims demonstrates a pragmatic alignment with international norms, which generally grant arbitral tribunals broad discretion in assessing the admissibility and weight of evidence. The Court found that the information in question was not a legally protected secret under the penal code. Because the sharing of the Novak Spreadsheet, Letter, and Neda Invoice involved third parties and Naeem shareholders, the Court concluded that there was no employee (current or former) confidentiality obligation to breach. Furthermore, regarding the alleged reliance on hearsay from another witness, Mr Nivan, the Court concluded that the Tribunal did not actually rely on it to reach its determination, and even if it had, the outcome would remain unchanged given the totality of the record.
The Court's refusal to second-guess the Tribunal's evidentiary weightings aligns perfectly with the pro-enforcement bias of the New York Convention and the UNCITRAL Model Law, upon which the DIFC Arbitration Law is based. The judgment explicitly references the precedent set in Lachesis v Lacrosse [2021] DIFC CA 005, cementing the appellate court's stance against using set-aside applications as backdoor appeals on the merits or evidentiary rulings. The DIFC Courts consistently hold that procedural grievances regarding how a tribunal handled witness testimony or document production rarely rise to the level of a public policy violation.
Another significant international standard tested in Novak v Norwood was the treatment of annulled foreign awards. The tension here lies between respecting foreign judicial decisions (comity) and upholding the finality of the immediate arbitral process. The Claimants attempted to leverage parallel foreign proceedings to taint the ICC Award:
Finally, the Claimants submit that the Tribunal’s reliance on the Nathan Award in the Final Award is contrary to public policy has the Nathan Award was annulled and remains annulled by the Nazir Court of Cassation.
The DIFC Court's approach to this argument requires a granular examination of whether the enforcement of the current award—not the annulled one—offends local public policy. Justice Al Sawalehi insulated the DIFC proceedings from the procedural turbulence of the Nazir courts by strictly narrowing the geographical and jurisdictional focus of his inquiry:
My concern is to evaluate whether there is a public policy offence if the Award is permitted to be enforced in the DIFC jurisdiction only, and so on this point my focus will be on the Defence’s response to the specific submissions presented by the Claimants, and not a summary of the Defence’s perception of the Claimant’s intentions.
By focusing exclusively on the enforcement of the ICC Award within the DIFC jurisdiction, the Court bypassed the trap of relitigating the Nazir Court of Cassation's annulment decision. The Tribunal had already determined that the Nathan Award did not give rise to an issue estoppel in the Arbitration Proceedings, and the DIFC Court found no public policy offence in the Tribunal's handling of that historical context. This mirrors the robust approach seen in earlier foundational cases, such as ARB-001-2014: (1) Fiske (2) Firmin v (1) Firuzeh, where the DIFC Courts established their autonomy in enforcing awards regardless of parallel annulment proceedings in other jurisdictions, provided the strict statutory grounds for refusal are not met.
The threshold for proving a public policy violation in the DIFC remains exceptionally high. It is not enough to show that a tribunal misapplied the law, admitted questionable evidence, or referenced an annulled award; the enforcement of the award must shock the conscience or violate the most basic notions of morality and justice of the UAE. The Claimants in Novak v Norwood failed to meet this burden. Their attempt to conflate the Tribunal's findings of unlawful means conspiracy and bribery with an infringement of state sovereignty was systematically dismantled by the Court. The judgment noted the consensus among the legal experts regarding the statutory test:
Therefore, the offence to public policy pursuant to Article 41(2)(b)(iii) of the DIFC Arbitration Law was agreed by the UAE and Naval Law experts.
Ultimately, the judgment in ARB 012/2023 reinforces the DIFC's reputation as a sophisticated, pro-arbitration jurisdiction. It balances the mandatory application of UAE public policy with a steadfast refusal to interfere in the substantive findings of arbitral tribunals. By confirming that the act of state doctrine exists within DIFC Law precisely because the jurisdiction is bound by UAE public policy, Justice Al Sawalehi bridged the gap between local sovereignty and international commercial expectations. The ruling assures international practitioners that while the DIFC Courts will rigorously police the boundaries of public policy, they will not allow those boundaries to be manipulated by award debtors seeking to relitigate complex evidentiary or jurisdictional disputes. The decision to uphold the Worldwide Freezing Order of Justice Sir Jeremy Cooke further cements the Court's willingness to deploy powerful injunctive relief to support the integrity of the international arbitral process.
What Does This Mean for Practitioners and Enforcement?
The categorical dismissal of the set-aside application by H.E. Justice Shamlan Al Sawalehi in Novak v Norwood [2024] DIFC ARB 012 sends an unequivocal message to the arbitration community: the DIFC Courts will not serve as an appellate forum for disgruntled award debtors. By upholding the Recognition and Enforcement Order dated 14 April 2023 and the accompanying worldwide freezing order issued by Justice Sir Jeremy Cooke, the Court reinforced the formidable threshold required to successfully challenge an arbitral award under the DIFC Arbitration Law.
The ruling operates as a stark warning against procedural obstructionism. Practitioners advising clients on resisting enforcement must recognize that public policy challenges cannot be weaponized as a backdoor to relitigate the substantive merits of a dispute. The Claimants in this action mounted a sprawling, multi-pronged attack, invoking the act of state doctrine, alleging reliance on annulled awards, and contesting the admissibility of specific witness evidence. Yet, the Court systematically dismantled these arguments, focusing strictly on whether enforcement within the DIFC would genuinely offend fundamental legal principles. Justice Al Sawalehi framed the Court's mandate with precision:
My concern is to evaluate whether there is a public policy offence if the Award is permitted to be enforced in the DIFC jurisdiction only, and so on this point my focus will be on the Defence’s response to the specific submissions presented by the Claimants, and not a summary of the Defence’s perception of the Claimant’s intentions.
This jurisdictional focus is critical. The Court's role under Article 41(2)(b)(iii) of the DIFC Arbitration Law is not to police the tribunal's procedural micro-decisions, but to safeguard the integrity of the DIFC as an enforcement seat. When the Claimants argued that the tribunal's findings of corruption involving Naval state officials violated the act of state doctrine, they attempted to stretch a principle of non-interference into a blanket immunity against arbitral scrutiny.
Justice Al Sawalehi’s treatment of the act of state doctrine provides vital clarity for cross-border practitioners navigating complex fraud and corruption claims. The Defendants had initially argued that the doctrine does not exist under UAE law, suggesting that the Claimants' entire premise was flawed from the outset. However, the Court took a more sophisticated view, acknowledging its existence within the DIFC's common law framework while strictly limiting its application to prevent it from becoming an unassailable shield for corrupt acts.
I therefore agree that the act of state doctrine exists in DIFC Law as it does to the extent in English Law; not because the DIFC imports English Law where convenient, but because both jurisdictions are equally affected by the principle of the doctrine, given that each jurisdiction is just as sophisticated and permitted to non-interference as the other.
By aligning the DIFC's approach with English law principles of non-interference, the Court confirmed that arbitral tribunals can make factual findings regarding the corrupt acts of foreign state officials without inherently invalidating the sovereign acts themselves. The tribunal's conclusions regarding the procurement of the Naeem Decision by unlawful means did not cross the line into adjudicating the validity of a foreign sovereign act. As the Court noted, the tribunal's findings do not affect nor comment on the validity of the decision within Naval jurisdiction. Consequently, the boundary set by the doctrine remained intact, and the public policy challenge collapsed. The Court anchored this reasoning in established appellate authority, noting that the most compelling evidence to reject the Claimants' position was the Lachesis v Lacrosse [2021] DIFC CA 005 precedent.
The Court's refusal to entertain attempts to relitigate the merits is equally evident in its handling of the evidentiary challenges. The Claimants devoted significant resources to attacking the tribunal's reliance on specific witnesses, arguing that information was obtained in breach of confidentiality or constituted inadmissible hearsay. Specifically, they alleged that evidence provided by a witness named Nisham violated Article 432 of the UAE Criminal Code, attempting to import domestic criminal standards into the assessment of international arbitral evidence.
As for the Nisham’s evidence, I agree that the information delivered was not a “secret” pursuant to Article 432 of the UAE Criminal Code as Naeem shareholders and third parties were involved in the sharing of the information on the Novak Spreadsheet, Letter and Neda Invoice and so there was no employee (current or former) confidentiality obligation to breach.
This pragmatic dismissal of the confidentiality argument underscores the Court's reluctance to let domestic criminal statutes be used as tactical hurdles in international arbitration enforcement. Furthermore, regarding the evidence of another witness, Mr. Nivan, the Court refused to be drawn into a granular review of the tribunal's evidentiary weighting. Justice Al Sawalehi explicitly stated that he did not find that the Tribunal relied on Mr Nivan's evidence to reach their conclusion. Even if they had, the Court concluded that the broader evidentiary record was compelling enough to direct the Tribunal’s determination.
This approach reaffirms a fundamental tenet of arbitration practice: tribunals are the masters of the facts. A set-aside application is not an opportunity to conduct a forensic audit of the tribunal's factual findings or to second-guess its assessment of witness credibility. Practitioners must understand that unless an evidentiary ruling results in a severe and undeniable breach of due process that offends fundamental public policy, the DIFC Courts will defer to the tribunal's assessment. The threshold for intervention is exceptionally high, and mere dissatisfaction with how a tribunal weighed conflicting testimonies will never suffice.
The Claimants' final gambit involved the so-called Nathan Award, an attempt to leverage parallel annulment proceedings to derail enforcement in the DIFC.
Finally, the Claimants submit that the Tribunal’s reliance on the Nathan Award in the Final Award is contrary to public policy has the Nathan Award was annulled and remains annulled by the Nazir Court of Cassation.
The overarching dismissal of the set-aside application confirms that the mere reference to an annulled award in the factual matrix of a dispute does not automatically poison the resulting final award. The tribunal's primary findings of unlawful means conspiracy and corruption stood independently of the annulled Nathan Award, rendering the public policy challenge on this ground entirely hollow. The DIFC Courts will look at the substantive foundation of the award being enforced, rather than allowing tangential annulments in foreign jurisdictions to create an automatic domino effect that frustrates local enforcement.
The financial consequences of this failed challenge are significant and serve as the final deterrent against procedural obstructionism. By ordering that the Claimants shall pay the costs of the Set Aside Application on the standard basis, the Court reaffirmed the principle that costs follow the event. When parties launch multi-pronged, speculative attacks on high-value awards—in this case, involving damages exceeding USD 1.2 billion—they must be prepared to bear the substantial costs of the opposing party's defense. The maintenance of Justice Sir Jeremy Cooke's Worldwide Freezing Order further compounds the pressure on the Claimants, ensuring that their assets remain locked down while the Defendants proceed with execution.
This dynamic mirrors the broader trend in DIFC jurisprudence, where courts are increasingly intolerant of tactical delays and meritless appeals designed solely to frustrate enforcement. As seen in recent parallel proceedings, such as ARB-027-2024: ARB 027/2024 Nalani v Netty, the price of procedural obstruction is steep. The DIFC Courts are acutely aware of their role in the global enforcement ecosystem and are committed to ensuring that the finality of arbitral awards is respected.
Ultimately, Novak v Norwood provides a masterclass in the limits of public policy challenges. It demands that practitioners elevate their arguments beyond mere disagreement with a tribunal's findings. To succeed in setting aside an award in the DIFC, the applicant must demonstrate a fundamental, undeniable rupture of the jurisdiction's core legal tenets. Anything less will be swiftly dismissed, leaving the applicant not only with an enforceable award against them but also a hefty costs order to compound their defeat.
What Issues Remain Unresolved Regarding Annulled Awards?
The intersection of foreign annulment proceedings and domestic enforcement presents a perennial challenge in international commercial arbitration. In Novak v Norwood, the Claimants advanced a sophisticated argument targeting the ICC Tribunal's evidentiary foundation, specifically its reliance on the so-called Nathan Award. The core of their grievance rested on the fact that the Nathan Award had been nullified by a foreign judiciary, creating a complex conflict of laws scenario. The stakes in this evidentiary dispute were monumental, with the Tribunal having awarded Numair USD 1,002.2 million in respect of the Naeem Decision Claim alone, alongside an additional USD 129.2 million to Norwood for the Call Option Claim. Facing such catastrophic liability, the Claimants sought to weaponize the foreign annulment to block enforcement in Dubai.
As H.E. Justice Shamlan Al Sawalehi noted when summarizing the fourth ground of the set-aside application:
Finally, the Claimants submit that the Tribunal’s reliance on the Nathan Award in the Final Award is contrary to public policy has the Nathan Award was annulled and remains annulled by the Nazir Court of Cassation.
The Claimants posited that enforcing an ICC award that explicitly relied upon an annulled prior award inherently breached UAE public policy. This argument forces a confrontation between the finality of arbitral awards and the comity owed to foreign supervisory courts. The Nazir Court of Cassation's annulment of the Nathan Award was presented not merely as a procedural defect, but as a substantive contagion that infected the subsequent ICC Award. By relying on a nullified document, the Claimants argued, the ICC Tribunal had built its billion-dollar damages assessment on a legally non-existent foundation.
H.E. Justice Shamlan Al Sawalehi's approach to this contagion theory required a strict delineation of the DIFC Courts' mandate. The Court's primary function under the DIFC Arbitration Law is not to act as an appellate body for foreign annulment decisions, nor to police the evidentiary weight the ICC Tribunal assigned to the Nathan Award. Instead, the inquiry is strictly confined to the public policy implications within the DIFC itself. The Court framed its analytical boundary with precision:
My concern is to evaluate whether there is a public policy offence if the Award is permitted to be enforced in the DIFC jurisdiction only, and so on this point my focus will be on the Defence’s response to the specific submissions presented by the Claimants, and not a summary of the Defence’s perception of the Claimant’s intentions.
The distinction drawn by the Court is critical for practitioners. The Court deliberately isolated the enforcement mechanics within the DIFC from the broader, global validity of the underlying evidence. By focusing solely on whether the enforcement of the Award in the DIFC offends public policy, the Court insulated the DIFC enforcement regime from the turbulent wake of the Nazir Court of Cassation's annulment order. The interaction between annulled foreign awards and DIFC enforcement remains a nuanced area that requires careful navigation by counsel. When a tribunal relies on an annulled award, the losing party will inevitably attempt to import that annulment into the enforcement forum via the public policy exception. However, the DIFC Courts have consistently demonstrated a high tolerance for arbitral autonomy, requiring a direct and egregious conflict with fundamental UAE legal principles to trigger the statutory defenses.
The expert evidence presented in the proceedings attempted to bridge the gap between foreign annulment and domestic public policy. Both UAE and Naval Law experts provided extensive submissions on the nature of the public policy offence, attempting to map the foreign nullification onto the DIFC's statutory framework. The Court acknowledged the theoretical alignment of the experts regarding the governing statute:
Therefore, the offence to public policy pursuant to Article 41(2)(b)(iii) of the DIFC Arbitration Law was agreed by the UAE and Naval Law experts.
Despite the expert consensus on the theoretical framework of offence to public policy pursuant to Article 41(2)(b)(iii), the application of that framework to the specific facts of the Nathan Award fell short of the threshold required for set-aside. The Court's refusal to automatically equate the reliance on an annulled award with a breach of UAE public policy highlights the independence of the DIFC enforcement process. The DIFC Courts do not serve as a rubber stamp for foreign annulment decisions, particularly when those decisions concern collateral awards rather than the specific award presented for enforcement. The status of the Nathan Award remains a point of contention regarding its annulment, but its mere presence in the evidentiary record of a separate ICC arbitration does not render the resulting ICC Award unenforceable in Dubai.
To fortify this position, H.E. Justice Al Sawalehi turned to established DIFC jurisprudence. The reliance on precedent serves to anchor the Court's reasoning in a predictable framework, mitigating the inherent subjectivity of public policy arguments. The Court explicitly identified the controlling authority that governed the dispute over the annulled evidence:
In my view, the most compelling evidence to reject the Claimant’s position on this matter is the Lachesis v Lacrosse [2021] DIFC CA 005 precedent.
The invocation of Lachesis v Lacrosse [2021] DIFC CA 005 is highly instructive for cross-border litigators. While the specific factual matrix of Lachesis involved different evidentiary disputes, the appellate court's guidance on the narrow scope of the public policy exception remains the lodestar for the Court of First Instance. By aligning the rejection of the Nathan Award argument with the Lachesis precedent, the Court signaled to the arbitration community that creative attempts to expand the public policy defense will face steep doctrinal hurdles. The most compelling evidence to reject such challenges is the consistent appellate jurisprudence demanding that public policy breaches be fundamental, localized, and severe.
The Claimants' strategy also intertwined the annulment issue with the act of state doctrine, suggesting that the ICC Tribunal's findings inherently disrespected the sovereign acts of the Naval state, including its judicial pronouncements nullifying the Nathan Award. This required the Court to clarify the status of the act of state doctrine within the DIFC legal architecture, a point of frequent debate among UAE practitioners. The Court provided a definitive ruling on the doctrine's applicability:
I therefore agree that the act of state doctrine exists in DIFC Law as it does to the extent in English Law; not because the DIFC imports English Law where convenient, but because both jurisdictions are equally affected by the principle of the doctrine, given that each jurisdiction is just as sophisticated and permitted to non-interference as the other.
The acknowledgment that the act of state doctrine exists in DIFC Law, mirroring its application in English Law, provides a crucial doctrinal clarification. However, the Court drew a sharp distinction between recognizing a foreign act of state and allowing that act to dictate the outcome of a DIFC enforcement proceeding. The Tribunal's findings regarding the corruption underlying the Naeem Decision, and its subsequent reliance on the Nathan Award, did not constitute an impermissible interference with Naval jurisdiction. They were independent arbitral determinations that the DIFC Courts are bound to respect under the New York Convention and the DIFC Arbitration Law. The Court's mandate is to enforce the resulting obligations, not to relitigate the sovereign sensitivities of the underlying dispute.
This dynamic is not unique to the Novak litigation. The tension between parallel foreign proceedings, annulment actions, and the sanctity of the arbitral seat frequently occupies the DIFC Courts. For instance, in ARB-032-2025: ARB 032/2025 Oswin v (1) Otila (2) Ondray, the Court had to aggressively defend the integrity of the arbitration against parallel proceedings in Abu Dhabi. While Oswin dealt with anti-suit injunctions rather than annulled collateral awards, the underlying judicial philosophy is identical: the DIFC Courts will fiercely protect the arbitral process from collateral attacks, whether those attacks originate from rival domestic courts or foreign annulment courts. The independence of the arbitral mechanism must be preserved against creative jurisdictional maneuvering.
Future cases will likely further define the weight given to foreign court decisions in the context of DIFC enforcement. The Novak ruling establishes a high-water mark for arbitral resilience. Even when a tribunal explicitly relies on an award that has been struck down by a foreign supreme court, that reliance alone is insufficient to breach UAE public policy. The contagion must be proven to infect the fundamental fairness or legality of the enforcement itself, not merely the evidentiary calculus of the arbitrators. The Court's refusal to entertain the Claimants' expansive interpretation of public policy ensures that the DIFC remains a robust jurisdiction for the enforcement of complex international awards.
Counsel advising clients on the enforcement of multi-jurisdictional arbitral awards must internalize this distinction. The DIFC Courts evaluate the end product—the award presented for recognition—against the strict criteria of Article 41. They do not conduct a forensic audit of the tribunal's evidentiary building blocks. If an annulled award forms part of that foundation, the challenging party must demonstrate that the resulting structure inherently violates the public policy of the UAE, a burden that the Claimants in Novak ultimately failed to discharge. Consequently, the Set Aside Application is rejected entirely, leaving the USD 1.2 billion enforcement order intact and reaffirming the DIFC's commitment to arbitral finality.