On September 4, 2024, H.E. Justice Shamlan Al Sawalehi delivered a decisive blow to procedural obstructionism, granting a final anti-suit injunction in favor of Nuriel, Naufil, and Nishat. The ruling effectively halted ongoing litigation in the Abu Dhabi Courts, asserting the primacy of the DIFC-seated arbitration agreements embedded across a complex web of commercial contracts. Justice Al Sawalehi’s order, which followed a rigorous examination of multiple service agreements and amendments, serves as a stark reminder that the DIFC Court will not permit the fragmentation of dispute resolution forums through claims of contractual ambiguity.
For arbitration counsel and cross-border litigators, this decision provides a vital roadmap for navigating the 'Clarity Test' under UAE Arbitration Law. By affirming that general references to arbitration clauses are sufficient to bind parties—even in the face of unsigned amendments or minor discrepancies—the Court has significantly narrowed the window for parties to use parallel proceedings as a tactical delay mechanism. The judgment underscores the DIFC’s commitment to maintaining the integrity of the seat, ensuring that parties cannot escape their bargain by exploiting the perceived gaps between primary contracts and their subsequent, often messy, amendments.
How Did the Dispute Between Nuriel and Nuzhat Arise?
The genesis of the jurisdictional battle in Nuriel v Nuzhat lies in a deliberate attempt to exploit the structural complexity of a multi-layered commercial transaction. On 1 December 2023, the Claimants—Nuriel, Naufil, and Nishat—filed an urgent application seeking to restrain the Defendants, Nuzhat and Nayaab, from advancing parallel litigation in the onshore courts. The Claimants sought the continuation of an interim anti-suit injunction initially granted by Justice Sir Jeremy Cooke, aiming to protect the integrity of a suite of DIFC-seated arbitration agreements. The Defendants’ strategy was a familiar one in cross-border commercial disputes: weaponise the sheer volume of contractual amendments, annexes, and related agreements to argue that the original arbitration clauses had been diluted, superseded, or invalidly incorporated, thereby justifying a pivot to the Abu Dhabi Courts.
The underlying commercial relationship was governed by a dense thicket of contracts, primarily anchored by two foundational agreements executed on 22 December 2015: the Turnkey Design & Construct Contract (the "D&B Contract") for the Nasmi, and the Equipment Supply Contract for the Noreen (the "MEQ Contract"). Over the ensuing five years, the parties executed a cascade of modifications, including Amendment No. 1 in 2015, a Rectification and Amendment Agreement in 2018, and Amendment No. 3 on 1 March 2020. Parallel to these primary contracts sat a constellation of "Related Agreements," including a Coordination Agreement, a Management Services Agreement (MSA), a Joint Venture Agreement (JVA), and multiple Service Agreements executed in September 2020.
When the commercial relationship fractured, the Defendants initiated proceedings in Abu Dhabi, challenging the validity of the arbitration clauses embedded within this contractual matrix. Their core legal thesis rested on the assertion that the subsequent amendments and annexes failed to explicitly re-incorporate the arbitration provisions, thereby rendering them inoperative under the strict formal requirements of UAE Arbitration Law. This tactic of forum fragmentation is a known risk in complex joint ventures, echoing the jurisdictional skirmishes seen in ARB-032-2025: ARB 032/2025 Oswin v (1) Otila (2) Ondray, where parallel onshore proceedings were similarly deployed to destabilise a DIFC-seated arbitration.
H.E. Justice Shamlan Al Sawalehi was tasked with untangling this web and determining whether the arbitration agreements survived the successive layers of contractual modification. The analytical focal point was the "Clarity Test" under UAE Arbitration Law—the standard by which a court assesses whether an arbitration clause from a primary document is validly incorporated by reference into subsequent or related agreements. The Defendants argued for a hyper-textualist approach, demanding explicit, clause-specific references in every amendment. Justice Al Sawalehi decisively rejected this standard, establishing a more commercially pragmatic threshold for incorporation:
In my view, it matters not, for the purpose of satisfying the Clarity Test under UAE Arbitration Law, whether the arbitration clause is incorporated through a general reference rather than an explicit reference.
This doctrinal stance fundamentally undermines the utility of procedural obstructionism based on minor drafting discrepancies. The Court proceeded to conduct a granular review of the contested agreements, beginning with the D&B Contract and the MEQ Contract. The Defendants had heavily relied on the fact that Amendment No. 3 to the MEQ Contract was unsigned, and that the amendments lacked an express reference to the specific arbitration clauses (Clause 20.4 in the D&B Contract and Clause 20.1 in the MEQ Contract).
Justice Al Sawalehi found that the presence of a "Continuity Clause" in the amendments was sufficient to bridge the gap. A Continuity Clause typically states that all provisions of the underlying contract remain in full force and effect unless expressly amended. The Court held that such general language effectively captures and preserves the dispute resolution mechanism:
Having carefully reviewed and considered the parties’ materials and submissions, I am satisfied even in the absence of an express reference to the 20.4 arbitration clause in Amendment 3, the Continuity Clause clearly contemplates and incorporates by reference Clause 20.4 of the D&B Contract and binds the parties.
The Court applied identical logic to the MEQ Contract, refusing to allow the lack of a signature on a specific amendment to invalidate the broader, pre-existing agreement to arbitrate:
I am satisfied that although Amendment No. 3 of the MEQ Contract is unsigned it is clear that arbitration clause 20.1 in the MEQ Contract is incorporated in writing by reference in Amendment No. 3 of the MEQ Contract.
The Defendants’ assault on the Related Agreements met a similar fate. Regarding the Management Services Agreement, the Court noted that despite the absence of an express reference to Clause 32 (the arbitration provision) in the subsequent amendments, the agreement to arbitrate remained intact.
Having reviewed the MSA and the amendments, I am not persuaded that the absence of an express reference to Clause 32 of the MSA invalidates the arbitration agreement.
The dispute then shifted to the Service Agreement No.: Nabah 01/2020 and its sister agreements (Nabah 02/2020 and 03/2020). Here, the Defendants attempted to sever the arbitration provisions located in the annexes from the main body of the service agreements, arguing they constituted separate, un-agreed contracts. This argument ignores the commercial reality of how service agreements and their operational annexes function as a unified whole. Justice Al Sawalehi dismissed the attempt at artificial severance:
I am satisfied that the arbitration provision in the annex to the service agreements which is inherently integrated into the service agreements cannot reasonably be considered as a separate contract.
The Court concluded that the parties unequivocally intended for DIFC-seated arbitration to govern the service agreements, stating:
I am satisfied that each of the service agreements and the accompanying annex satisfactorily meets the Clarity Test under the UAE Arbitration Law and are valid and binding on the parties.
The final piece of the contractual puzzle was the Trade Credit Agreement (TCA) executed between the Second Claimant and the Second Defendant. Unlike the heavily amended construction and equipment contracts, the TCA presented a straightforward, unamended dispute resolution clause. The Defendants’ attempt to drag the TCA into the jurisdictional quagmire was swiftly dispatched by the Court:
The TCA is dated 30 September 2020 and expressly states in clause 6.11 that disputes shall be referred to and finally resolved by DIFC seated arbitration under the DIFC-LCIA Arbitration Rules. Ther are no amendments, and it is clear, in my view, that the TCA contains a valid arbitration agreement that is binding on the parties.
In a critical defensive maneuver, the Defendants attempted to rely on onshore jurisprudence to support their strict interpretation of the Clarity Test. They cited various judgments from the Abu Dhabi Cassation Court, presumably arguing that onshore public policy demands a higher threshold for the incorporation of arbitration clauses. Justice Al Sawalehi turned this argument on its head. Rather than viewing the DIFC and onshore approaches as inherently conflicting, the Court harmonised them, finding that the onshore authorities actually supported the enforcement of the agreements in this context:
Having reviewed the Judgments of the Abu Dhabi Cassation Court, I am of the view that these cases reinforce the generally accepted principles underpinning UAE Arbitration Law when interpreting the validity of arbitration agreements, which are not disputed in this case.
The Court further noted that the specific cases cited by the Defendants were "factually distinguishable from this case," thereby neutralising the attempt to import restrictive onshore precedents into the DIFC’s pro-arbitration environment.
Having systematically validated the arbitration agreements across the entire contractual spectrum, the Court exercised its supportive jurisdiction under Article 32(b) of DIFC Law No. 10 of 2004 (the DIFC Courts Law). The issuance of a final anti-suit injunction was the necessary mechanism to halt the Defendants' procedural circumvention. The Court ordered the Defendants to discontinue the Abu Dhabi Proceedings immediately, reinforcing the DIFC Courts' willingness to deploy injunctive relief to protect the arbitral seat, a principle robustly defended in ARB-005-2025: ARB 005/2025 Nashrah v (1) Najem (2) Nex. Furthermore, the Court clarified that references to the now-abolished DIFC-LCIA Rules within the contracts shall be a reference to the DIAC Arbitration Rules 2022, ensuring the practical operability of the arbitral process moving forward. The ruling serves as a definitive statement that the DIFC Courts will look to the commercial substance and the continuity of contractual intent, rather than allowing parties to escape their arbitral obligations through the weaponisation of complex, multi-layered drafting.
How Did the Case Move From Interim Application to Final Hearing?
The procedural trajectory of Nuriel v Nuzhat [2024] DIFC ARB 018 provides a masterclass in the DIFC Courts' deployment of urgent interim relief to arrest parallel litigation. When parties attempt to bypass agreed arbitration frameworks by launching onshore proceedings, the arbitral seat's supervisory court must act with immediate, coercive force. The timeline in this dispute reveals a judiciary acutely aware that procedural delays can render an arbitration agreement practically worthless. The claimants, Nuriel, Naufil, and Nishat, faced an existential threat to their arbitral rights when the defendants, Nuzhat and Nayaab, initiated claims in the Abu Dhabi Courts. To neutralize this, the claimants sought the DIFC Court's intervention, triggering a rapid sequence of hearings that locked the jurisdictional status quo in place before the onshore litigation could advance.
The initial defensive maneuver materialized on November 27, 2023, when Justice Sir Jeremy Cooke granted an Interim Anti-Suit Injunction and Alternative Service. This ex parte or highly expedited intervention is a hallmark of Justice Cooke’s tenure, echoing his robust defense of the DIFC seat in earlier jurisprudence, such as ARB-010-2016: Hayri International Llc v (1) Hazim Telecom Private Limited (2) Hazim Telecom Limited [2016] DIFC AR. By issuing the interim order, the Court immediately paralyzed the defendants' ability to progress the Abu Dhabi proceedings. However, interim relief is inherently transient. To secure their position, the claimants filed Application No. ARB-018-2023/3 dated 1 December 2023, formally requesting that the November 27 injunction be continued until the final determination of the underlying arbitration claim.
The DIFC Court's response to the December 1 application was characteristically swift. On December 5, 2023, Justice Cooke issued a subsequent order granting the Claimants’ application for Continuation of the Interim Order. This continuation was critical. It bridged the perilous gap between the initial emergency application and the comprehensive final hearing. The underlying dispute involved a highly fragmented suite of documents, including the Turnkey Design & Construct Contract for the Nasmi dated 22 December 2015 and the Equipment Supply Contract for the Noreen dated 22 December 2015. When commercial relationships are governed by such a dense matrix of primary contracts, amendments, and rectification agreements, the risk of inconsistent judgments across different forums is exponentially higher. Justice Cooke's continuation order effectively froze the board, ensuring that the defendants could not exploit the procedural window to secure a tactical advantage in Abu Dhabi while the DIFC Court untangled the contractual web.
With the status quo firmly secured, the procedural focus shifted to the final determination of the Claimants’ Anti-Suit Injunction Hearing held on 12 December 2023. Moving from an interim application to a final hearing in just over two weeks underscores the premium the DIFC Courts place on resolving jurisdictional conflicts expeditiously. At this juncture, the burden on the claimants intensified. They were no longer merely demonstrating a good arguable case for interim relief; they had to definitively prove that the arbitration agreements embedded within the labyrinthine suite of contracts were valid, binding, and capable of capturing the disputes currently before the Abu Dhabi Courts.
The December 12 hearing required H.E. Justice Shamlan Al Sawalehi to conduct a granular analysis of the contractual architecture. The defendants' strategy relied heavily on the assertion that various amendments to the underlying contracts failed to explicitly reiterate the arbitration clauses, thereby breaking the chain of consent required under UAE Arbitration Law. The Court confronted this argument head-on, scrutinizing the "Clarity Test" which governs the incorporation of arbitration clauses by reference. Justice Al Sawalehi rejected the formalistic approach advocated by the defendants, establishing a pragmatic standard for commercial contracts:
In my view, it matters not, for the purpose of satisfying the Clarity Test under UAE Arbitration Law, whether the arbitration clause is incorporated through a
general
reference rather than an explicit reference.
This doctrinal stance was pivotal in transitioning the Court's posture from interim preservation to final adjudication. By confirming that a general reference suffices, the Court dismantled the defendants' primary defense. The analysis then moved to the specific amendments, such as Amendment No. 3 to the D&B Contract. The defendants argued that the absence of an express reference to the arbitration clause (Clause 20.4) in this specific amendment rendered the arbitration agreement inoperative for disputes arising under it. Justice Al Sawalehi systematically dismantled this proposition, focusing on the commercial reality of the "Continuity Clause" within the amendment:
Having carefully reviewed and considered the parties’ materials and submissions, I am satisfied even in the absence of an express reference to the 20.4 arbitration clause in Amendment 3, the Continuity Clause clearly contemplates and incorporates by reference Clause 20.4 of the D&B Contract and binds the parties.
The Court's analysis did not stop at the primary construction and equipment contracts. The dispute encompassed a sprawling ecosystem of ancillary agreements, including multiple Service Agreements and a Trade Credit Agreement. The defendants attempted to isolate these agreements, arguing that the arbitration provisions were either improperly incorporated or entirely absent. During the final hearing, the claimants had to systematically prove that the dispute resolution mechanism permeated the entire commercial relationship. Justice Al Sawalehi evaluated the Service Agreements and their accompanying annexes, ultimately concluding that the arbitral mandate was inescapable:
I am satisfied that each of the service agreements and the accompanying annex satisfactorily meets the Clarity Test under the UAE Arbitration Law and are valid and binding on the parties.
The rigorous examination conducted during the December 12 hearing culminated in the final order issued on September 4, 2024. The Court did not merely confirm the validity of the arbitration agreements; it issued a sweeping mandate. Pursuant to Article 32(b) of DIFC Law No. 10 of 2004, the Court ordered that the defendants are prohibited from taking any further steps in the claims they have made against the Claimants in the Abu Dhabi Proceedings. Furthermore, the Court imposed an affirmative obligation, directing the defendants to immediately take all necessary steps to discontinue the Abu Dhabi Proceedings.
The final order also addressed the institutional mechanics of the arbitration itself. Acknowledging the abolition of the DIFC-LCIA, the Court explicitly ordered that the reference to the DIFC-LCIA Rules in the Arbitration Agreements shall be a reference to the DIAC Arbitration Rules 2022. This pragmatic adjustment further demonstrates the Court's commitment to ensuring the arbitration agreements remain workable and enforceable, rather than allowing them to fail on institutional technicalities.
The trajectory from the November 27 interim order to the final injunction illustrates a highly calibrated judicial mechanism. The DIFC Court recognizes that an anti-suit injunction is a powerful, potentially abrasive tool in the context of intra-Emirate judicial relations. Therefore, the procedural staging—initial ex parte freeze, rapid inter partes continuation, and a comprehensive final hearing—ensures that the Court's coercive powers are exercised with both speed and rigorous due process. The interim phases protected the integrity of the arbitral seat, while the final hearing provided the necessary forum to definitively resolve the complex questions of contractual incorporation and the Clarity Test.
Ultimately, the procedural history of Nuriel v Nuzhat serves as a blueprint for practitioners navigating parallel proceedings in the UAE. It confirms that the DIFC Courts will not hesitate to deploy interim relief to halt onshore litigation when a prima facie valid arbitration agreement exists. The seamless progression from Justice Cooke's initial intervention to Justice Al Sawalehi's final, detailed contractual analysis ensures that sophisticated commercial parties cannot use procedural fragmentation to escape their agreed dispute resolution forums.
What Is the 'Clarity Test' and Why Does It Matter Here?
The enforcement of arbitration agreements in the United Arab Emirates hinges on a foundational doctrinal threshold: the Clarity Test. Rooted in the strict requirements of UAE Arbitration Law, the test demands that a party’s intention to oust the default jurisdiction of the state courts and submit to arbitration must be unequivocal and expressed in writing. For decades, recalcitrant parties have weaponized this requirement, arguing that complex, multi-contract commercial transactions fail the test if subsequent amendments or related agreements do not explicitly restate the arbitration clause. In Nuriel v Nuzhat [2024] DIFC ARB 018, H.E. Justice Shamlan Al Sawalehi dismantled this formalistic trap, delivering a masterclass on how the Clarity Test applies to incorporated clauses across a sprawling web of corporate agreements.
The dispute before the Dubai International Financial Centre (DIFC) Courts involved a labyrinthine contractual matrix. The underlying commercial relationship was governed by multiple instruments, including a Turnkey Design & Construct Contract (the "D&B Contract") dated 22 December 2015, and an Equipment Supply Contract for the Noreen (the "MEQ Contract"). Over the years, these foundational documents spawned numerous amendments, rectification agreements, and related service contracts. When relations soured, the Defendants, Nuzhat and Nayaab, initiated parallel proceedings in the Abu Dhabi Courts, seemingly calculating that the sheer volume of subsequent, often unsigned or generally drafted amendments would obscure the original intent to arbitrate.
The Defendants’ tactical fragmentation relied on a strict, almost pedantic interpretation of the Clarity Test. They argued that because certain subsequent agreements—such as Amendment No. 3 dated 1 March 2020—did not expressly single out and reaffirm the arbitration clauses contained in the master contracts, the agreement to arbitrate had lapsed or was improperly incorporated. This is a familiar guerrilla tactic in cross-border litigation, echoing the jurisdictional skirmishes seen in ARB-032-2025: ARB 032/2025 Oswin v (1) Otila (2) Ondray, where parties similarly attempted to leverage onshore courts to bypass DIFC-seated arbitral mandates.
Justice Al Sawalehi firmly rejected the premise that the Clarity Test requires an explicit, clause-by-clause reaffirmation in every subsequent contractual document. Addressing the incorporation of the arbitration agreement across the various amendments, the Court established a pragmatic standard for commercial practitioners:
In my view, it matters not, for the purpose of satisfying the Clarity Test under UAE Arbitration Law, whether the arbitration clause is incorporated through a general reference rather than an explicit reference.
This holding is the analytical core of the judgment. By validating general references, the DIFC Court aligned its interpretation of the Clarity Test with the commercial realities of complex project finance and joint venture management. When sophisticated parties execute a Management Services Agreement dated 22 December 2015 and subsequently amend it multiple times, they do not typically rewrite the boilerplate dispute resolution mechanics. They rely on continuity clauses.
The Court scrutinized the specific mechanics of these continuity clauses, particularly within the D&B Contract's Amendment 3. The Defendants had seized upon the absence of a direct pointer to Clause 20.4 (the arbitration provision) in the amendment text. Justice Al Sawalehi found that a standard continuity provision—stating that all unamended provisions of the master contract remain in full force and effect—perfectly satisfies the statutory requirement for clear intent.
Having carefully reviewed and considered the parties’ materials and submissions, I am satisfied even in the absence of an express reference to the 20.4 arbitration clause in Amendment 3, the Continuity Clause clearly contemplates and incorporates by reference Clause 20.4 of the D&B Contract and binds the parties.
The ruling extends beyond mere amendments to encompass entirely separate, yet related, operational agreements. The dispute involved several specific service contracts, including Service Agreement No.: Nabah 01/2020 and its sister agreements, Nabah 02/2020 and Nabah 03/2020. In these instances, the arbitration provision was not located in the main body of the service agreements but was instead relegated to an accompanying annex. The Defendants attempted to sever the annex from the main agreement, arguing that the physical separation of the clause diluted the clarity of the parties' intent to arbitrate disputes arising from the primary service obligations.
Justice Al Sawalehi refused to entertain this artificial bifurcation. Recognizing that commercial contracts are often structured with operational terms in the main body and standard terms in schedules or annexes, the Court held that structural separation does not equate to legal separation.
I am satisfied that the arbitration provision in the annex to the service agreements which is inherently integrated into the service agreements cannot reasonably be considered as a separate contract.
This determination is critical for transactional lawyers drafting within the UAE. It confirms that the DIFC Courts will look to the inherent integration of the documents rather than their physical pagination. If an annex is functionally essential to the operation of the main agreement, its dispute resolution provisions will bind the parties just as securely as if they were printed on the signature page.
The Court applied the same rigorous, pro-arbitration lens to the Trade Credit Agreement between the Second Claimant and the Second Defendant, dated 30 September 2020. Where the text was unamended and the reference to DIFC-LCIA Arbitration Rules (now transitioning to DIAC Rules) was explicit, the Court swiftly validated the agreement, leaving no room for jurisdictional ambiguity.
Crucially, Justice Al Sawalehi did not position this interpretation as a rogue, offshore departure from onshore UAE legal principles. Instead, he anchored the DIFC Court's reasoning firmly within the broader jurisprudence of the UAE's highest onshore courts. By doing so, he preemptively neutralized any argument that the DIFC was applying an artificially low threshold for arbitration enforcement compared to the local courts in Abu Dhabi or Dubai.
Having reviewed the Judgments of the Abu Dhabi Cassation Court, I am of the view that these cases reinforce the generally accepted principles underpinning UAE Arbitration Law when interpreting the validity of arbitration agreements, which are not disputed in this case.
By explicitly citing the alignment with the Abu Dhabi Cassation Court, the judgment sends a powerful message to litigants attempting to play the DIFC Courts against the onshore courts. The Clarity Test is a unified standard across the UAE, designed to ascertain true commercial intent, not to serve as a technical escape hatch for parties suffering from buyer's remorse over their choice of forum. The issuance of a final anti-suit injunction in this context—prohibiting the Defendants from taking any further steps in the Abu Dhabi proceedings—cements the DIFC Court's willingness to aggressively protect its seated arbitrations, a posture similarly explored in ARB-005-2025: ARB 005/2025 Nashrah v (1) Najem (2) Nex.
Ultimately, Nuriel v Nuzhat redefines the boundaries of the Clarity Test for modern commercial practice. It establishes that "clarity" under UAE Arbitration Law is not synonymous with "repetition." A general reference, a standard continuity clause, or an inherently integrated annex is entirely sufficient to bind sophisticated commercial actors to their agreed arbitral forum. For practitioners, the mandate is clear: while drafting explicit arbitration clauses remains the gold standard, the DIFC Courts will not allow the inevitable complexities of contract administration and amendment to be weaponized to defeat the fundamental agreement to arbitrate.
How Did Justice Al Sawalehi Reach the Decision?
H.E. Justice Shamlan Al Sawalehi’s reasoning in granting the final anti-suit injunction rests on a foundational principle of modern commercial arbitration: the objective intent of the parties to arbitrate must prevail over hyper-technical drafting discrepancies. In complex commercial relationships involving multiple corporate entities, joint ventures, and layered service agreements, documentation is rarely flawless. Amendments are drafted in haste, signatures are occasionally missed, and cross-references can become tangled. The Defendants, Nuzhat and Nayaab, attempted to weaponize these very realities, arguing that the fragmented nature of the contractual suite vitiated the arbitration agreements. Justice Al Sawalehi systematically dismantled this formalistic approach, affirming that the DIFC Courts will look to the commercial substance of the transaction to uphold the parties' chosen dispute resolution forum.
The dispute centered on a sprawling web of contracts, primarily anchored by the Turnkey Design & Construct Contract for the Nasmi dated 22 December 2015 (the "D&B Contract") and the Equipment Supply Contract (the "MEQ Contract"). Over the years, these foundational agreements were subject to multiple amendments and rectifications. The Defendants seized upon alleged inconsistencies between the original contracts and their subsequent iterations, arguing that the arbitration clauses had been lost in the drafting shuffle.
Justice Al Sawalehi focused his analysis on the curative power of subsequent agreements, specifically the Rectification and Amendment Agreement dated 20 March 2018 (the "RAA"). The Defendants contended that discrepancies existing prior to the RAA rendered the arbitration provisions inoperable. The Court rejected this premise entirely, viewing the RAA not as a source of confusion, but as a definitive mechanism that healed prior drafting defects. The intent to arbitrate was preserved and clarified by the parties' own subsequent written actions.
On the evidence, I am not persuaded that the discrepancy invalidates the arbitration agreement because the RAA satisfactorily rectifies and addresses the discrepancy.
Having established that the RAA cured historical defects, the Court then confronted a classic tactic in construction and supply arbitration: the exploitation of unsigned documents. The Defendants pointed out that Amendment No. 3 of the MEQ Contract lacked formal signatures, arguing that this omission broke the chain of incorporation, thereby severing the arbitration clause from the active contractual relationship.
In many traditional jurisdictions, an unsigned amendment might prove fatal to the enforcement of an arbitration clause contained within it, particularly when strict formal requirements are applied. However, Justice Al Sawalehi applied a commercially pragmatic lens, examining whether the unsigned document was nevertheless incorporated by reference through the broader contractual framework. He found that the lack of a signature on a specific amendment does not negate the overarching, documented agreement to arbitrate when the amendment is clearly integrated into the master contract.
I am satisfied that although Amendment No. 3 of the MEQ Contract is unsigned it is clear that arbitration clause 20.1 in the MEQ Contract is incorporated in writing by reference in Amendment No. 3 of the MEQ Contract.
The mechanism that saved the unsigned amendment was the "Continuity Clause." In complex suites of agreements, continuity clauses serve as a vital safety net, ensuring that unamended provisions of a master contract remain in full force despite subsequent, specific alterations to other commercial terms. The Defendants argued that because Amendment 3 did not expressly restate or specifically reference the arbitration clause (Clause 20.4 in the D&B Contract), the clause was abandoned. Justice Al Sawalehi found this argument entirely unconvincing, ruling that a continuity clause inherently captures and preserves the dispute resolution mechanism unless expressly carved out.
Having carefully reviewed and considered the parties’ materials and submissions, I am satisfied even in the absence of an express reference to the 20.4 arbitration clause in Amendment 3, the Continuity Clause clearly contemplates and incorporates by reference Clause 20.4 of the D&B Contract and binds the parties.
In my view, the wording of the D&B Continuity Clause in Amendment 3 clearly confirms that all provisions of the D&B Contract, save as amended continue in full force and effect.
The Court then turned its attention to the Management Services Agreement dated 22 December 2015 (the "MSA") and the various Nabah Service Agreements executed in 2020. Here, the Defendants mounted a different jurisdictional attack, relying on a stringent interpretation of the "Clarity Test" under UAE Federal Law No. 6 of 2018 on Arbitration. They argued that for an arbitration clause to be validly incorporated by reference from an annex or a master agreement into a specific service contract, there must be an explicit, specific reference to the arbitration clause itself, rather than a general reference to the document containing it.
This argument strikes at the heart of how modern commercial contracts are drafted. Parties frequently use master agreements with general incorporation clauses to govern dozens of subsequent purchase orders or service annexes. Requiring a specific reference to the arbitration clause in every single annex would impose an immense administrative burden and create endless opportunities for jurisdictional evasion. Justice Al Sawalehi firmly rejected the Defendants' restrictive interpretation, aligning the DIFC Courts with international best practices regarding incorporation by reference.
In my view, it matters not, for the purpose of satisfying the Clarity Test under UAE Arbitration Law, whether the arbitration clause is incorporated through a general reference rather than an explicit reference.
The Court examined the structure of the service agreements and found that the annexes containing the arbitration provisions were not separate, standalone documents that required specific incorporation language. Instead, they were fundamental components of the commercial bargain. Attempting to sever the annex from the main service agreement to defeat arbitration was a mischaracterization of the contractual architecture.
I am satisfied that the arbitration provision in the annex to the service agreements which is inherently integrated into the service agreements cannot reasonably be considered as a separate contract.
I am satisfied that each of the service agreements and the accompanying annex satisfactorily meets the Clarity Test under the UAE Arbitration Law and are valid and binding on the parties.
Even standalone agreements within the suite, which did not rely on complex incorporation by reference, were scrutinized and upheld. The Court noted that the Trade Credit Agreement between the Second Claimant and the Second Defendant, dated 30 September 2020 contained a clear, unamended arbitration clause. The presence of such unambiguous clauses in related agreements further reinforced the conclusion that the parties possessed a comprehensive, overarching intent to resolve their disputes via DIFC-seated arbitration.
The TCA is dated 30 September 2020 and expressly states in clause 6.11 that disputes shall be referred to and finally resolved by DIFC seated arbitration under the DIFC-LCIA Arbitration Rules. Ther are no amendments, and it is clear, in my view, that the TCA contains a valid arbitration agreement that is binding on the parties.
In a final attempt to derail the anti-suit injunction, the Defendants relied heavily on judgments from the Abu Dhabi Cassation Court. They argued that onshore UAE jurisprudence demands a highly formalistic approach to the validity of arbitration agreements, suggesting that the DIFC Court should defer to these strict standards and allow the parallel Abu Dhabi proceedings to continue.
Justice Al Sawalehi’s handling of these onshore judgments was both diplomatic and decisive. He did not reject the authority of the Abu Dhabi Cassation Court; rather, he neutralized the Defendants' reliance on it by distinguishing the cases on their facts. He observed that the onshore judgments cited by the Defendants actually supported the general principles of UAE Arbitration Law—principles that, when applied to the specific facts of the D&B, MEQ, and Service Contracts, confirmed the validity of the arbitration agreements rather than undermining them.
Having reviewed the Judgments of the Abu Dhabi Cassation Court, I am of the view that these cases reinforce the generally accepted principles underpinning UAE Arbitration Law when interpreting the validity of arbitration agreements, which are not disputed in this case.
It is relevant to note that many of the cited jurisprudence are, in my view, factually distinguishable from this case.
By distinguishing the onshore jurisprudence, the Court cleared the path to grant the final anti-suit injunction, ordering the Defendants to immediately discontinue the Abu Dhabi Proceedings. This decisive action aligns perfectly with the DIFC Courts' increasingly robust posture against parallel litigation designed to frustrate seated arbitrations. Much like the aggressive defense of the arbitral seat witnessed in ARB-032-2025: ARB 032/2025 Oswin v (1) Otila (2) Ondray, Justice Al Sawalehi’s ruling sends a clear message to practitioners: the DIFC Court will not allow parties to escape their arbitration obligations by magnifying minor drafting flaws or by initiating tactical litigation in neighboring Emirates. The objective intent to arbitrate, once established across a suite of commercial contracts, will be protected by the full coercive power of the Court.
How Does the DIFC Approach Compare to Other Jurisdictions?
The issuance of a final anti-suit injunction by H.E. Justice Shamlan Al Sawalehi in Nuriel v Nuzhat provides a definitive statement on the Dubai International Financial Centre (DIFC) Court’s supervisory muscle. By ordering that the defendants are [prohibited from taking any further steps](https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/arbitration/DIFC_ARB-018-2023_20240904.txt#:~:text=The%20Defendants%20are%20prohibited%20from) in the parallel Abu Dhabi proceedings, the Court aligns itself with the aggressive, seat-protective postures traditionally associated with London and Singapore. Yet, the ruling achieves this alignment without alienating onshore UAE jurisprudence, instead harmonising international arbitration principles with domestic statutory frameworks.
The core of the jurisdictional battle revolved around the incorporation of arbitration clauses across a highly fragmented suite of commercial agreements. In many civil law jurisdictions, the incorporation of an arbitration clause by reference requires explicit, specific signposting. Historically, onshore UAE courts have demanded rigid adherence to this principle, often requiring an express reference to the arbitration clause itself to satisfy the requirement that an agreement to arbitrate be in writing. The defendants in Nuriel v Nuzhat attempted to exploit this historical strictness, arguing that various amendments and related agreements failed to explicitly reiterate the arbitration provisions found in the master contracts.
Justice Al Sawalehi dismantled this argument by applying the "Clarity Test" under UAE Arbitration Law with a commercial pragmatism that mirrors the English Commercial Court’s approach in cases like Habas Sinai. Rather than demanding a hyper-technical recitation of the arbitration clause in every subsequent amendment, the Court looked to the objective intent of the parties.
In my view, it matters not, for the purpose of satisfying the Clarity Test under UAE Arbitration Law, whether the arbitration clause is incorporated through a general reference rather than an explicit reference.
This distinction between general and explicit reference is a critical doctrinal marker. It prevents sophisticated commercial parties from escaping their agreement to arbitrate through drafting technicalities. The dispute involved a complex matrix of agreements, including the [Turnkey Design & Construct Contract](https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/arbitration/DIFC_ARB-018-2023_20240904.txt#:~:text=Turnkey%20Design%20%26%20Construct%20Contract) (the D&B Contract) and the [Management Services Agreement dated 22 December 2015](https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/arbitration/DIFC_ARB-018-2023_20240904.txt#:~:text=Management%20Services%20Agreement%20dated%2022). The defendants argued that subsequent amendments—some unsigned, others lacking express references to the original dispute resolution clauses—effectively severed the agreement to arbitrate.
The DIFC Court’s response distinguishes sharply between domestic procedural challenges and the fundamental validity of the arbitration agreement. When confronted with the argument that an amendment to the Management Services Agreement (MSA) failed to explicitly reference the arbitration clause, Justice Al Sawalehi was unequivocal:
Having reviewed the MSA and the amendments, I am not persuaded that the absence of an express reference to Clause 32 of the MSA invalidates the arbitration agreement.
The Court relied heavily on the presence of "Continuity Clauses" within the amendments. These clauses, standard in complex commercial variations, state that all provisions of the original contract remain in full force and effect save as expressly amended.
In my view, the wording of the D&B Continuity Clause in Amendment 3 clearly confirms that all provisions of the D&B Contract, save as amended continue in full force and effect.
By treating the Continuity Clause as a valid bridge for the arbitration agreement, the DIFC Court adopts a stance highly congruent with the English doctrine of separability and the pro-arbitration bias enshrined in the New York Convention. The Court refuses to allow the procedural noise of unsigned amendments or missing cross-references to drown out the fundamental commercial reality: the parties agreed to arbitrate their disputes.
The procedural history of the injunction itself further illustrates the DIFC’s alignment with international best practices. The proceedings began with an [Interim Anti-Suit Injunction and Alternative Service](https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/arbitration/DIFC_ARB-018-2023_20240904.txt#:~:text=Interim%20Anti%2DSuit%20Injunction%20and) granted by Justice Sir Jeremy Cooke. The transition from that interim relief to the final order by Justice Al Sawalehi demonstrates a unified judicial front. The DIFC Court views an arbitration agreement as a negative covenant not to sue in a foreign forum. When that covenant is breached, the Court will not hesitate to issue [A final injunction pursuant to Article 32(b)](https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/arbitration/DIFC_ARB-018-2023_20240904.txt#:~:text=A%20final%20injunction%20pursuant%20to) of the DIFC Courts Law.
Crucially, Justice Al Sawalehi did not frame this injunction as a jurisdictional clash with the Abu Dhabi courts. Instead, he grounded the decision in shared principles of UAE law, effectively neutralising any argument that the DIFC was overstepping its bounds as an offshore jurisdiction.
Having reviewed the Judgments of the Abu Dhabi Cassation Court, I am of the view that these cases reinforce the generally accepted principles underpinning UAE Arbitration Law when interpreting the validity of arbitration agreements, which are not disputed in this case.
This harmonisation is a masterstroke of judicial diplomacy. By citing Abu Dhabi Cassation Court judgments to support a DIFC anti-suit injunction, Justice Al Sawalehi reinforces the narrative that the DIFC Court is not an isolated legal island, but an integrated component of the broader UAE legal system that happens to apply international commercial standards. The Court acknowledges the onshore jurisprudence but carefully distinguishes the facts, ensuring that restrictive interpretations of incorporation by reference do not infect the DIFC’s pro-arbitration ecosystem.
It is relevant to note that many of the cited jurisprudence are, in my view, factually distinguishable from this case.
The ruling also navigates the institutional complexities that have recently characterised Dubai-seated arbitrations. Following the abolition of the DIFC-LCIA Arbitration Centre, parties with legacy contracts have frequently attempted to argue that the arbitration agreement is frustrated or inoperable. The defendants in Nuriel v Nuzhat faced a similar hurdle, given that several of the contracts, including the [Trade Credit Agreement between the Second Claimant and the Second Defendant](https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/arbitration/DIFC_ARB-018-2023_20240904.txt#:~:text=Trade%20Credit%20Agreement%20between%20the), referenced the now-defunct institution.
The TCA is dated 30 September 2020 and expressly states in clause 6.11 that disputes shall be referred to and finally resolved by DIFC seated arbitration under the DIFC-LCIA Arbitration Rules. Ther are no amendments, and it is clear, in my view, that the TCA contains a valid arbitration agreement that is binding on the parties.
To resolve the institutional vacuum, the Court seamlessly substituted the forum, ordering that the [reference to the DIAC Arbitration Rules 2022](https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/arbitration/DIFC_ARB-018-2023_20240904.txt#:~:text=reference%20to%20the%20DIAC%20Arbitration) shall apply to the arbitration agreements. This pragmatic substitution ensures that the abolition of an arbitral institution does not destroy the underlying agreement to arbitrate. The Court prioritises the parties' fundamental intent to resolve disputes via arbitration in the DIFC over the specific institutional machinery they initially selected.
It is clear in my view that the parties intended a DIFC seated arbitration to be the dispute resolution forum related to the service agreements.
This trajectory of robust jurisdictional protection is not entirely new; it builds upon a foundation laid over a decade ago. As established in ARB-003-2013: Banyan Tree Corporate PTE Ltd v Meydan Group LLC, the DIFC Court has long positioned itself as a conduit jurisdiction and a fierce protector of arbitral integrity. Nuriel v Nuzhat evolves that doctrine. While Banyan Tree confirmed the DIFC’s willingness to act as a conduit for enforcement, the current ruling confirms the Court’s willingness to actively police the boundaries of its seat against parallel onshore litigation.
By enforcing the Clarity Test pragmatically, distinguishing procedural discrepancies from substantive invalidity, and issuing a decisive anti-suit injunction, the DIFC Court cements its status as a premier, predictable forum. The approach signals to international practitioners that the DIFC will interpret arbitration agreements with the same commercial realism expected in London or Paris, while remaining firmly anchored within the statutory framework of UAE Arbitration Law.
Which Earlier DIFC Cases Frame This Decision?
The jurisprudential architecture of the Dubai International Financial Centre (DIFC) Courts has long been defined by a fierce protection of arbitral autonomy. When H.E. Justice Shamlan Al Sawalehi issued his final order in Nuriel v Nuzhat [2024] DIFC ARB 018, he did not merely resolve a localized contractual dispute; he reinforced a doctrinal fortress that has been under construction for over a decade. The decision builds directly upon a lineage of DIFC jurisprudence that prioritizes the sanctity of the arbitral seat over the procedural opportunism of parallel onshore litigation. By granting a final injunction pursuant to Article 32(b) of DIFC Law No. 10 of 2004, the Court signaled to the broader commercial market that complex, multi-tiered contractual structures cannot be weaponized to fracture dispute resolution forums.
To understand the gravity of Justice Al Sawalehi’s ruling, one must trace the evolution of the so-called Banyan Tree doctrine within the context of modern commercial disputes. Originally, the DIFC Courts established their willingness to act as a conduit jurisdiction, supporting arbitration and enforcing awards even where the underlying dispute lacked a strict geographic nexus to the financial centre, provided the legal seat or assets were present. Over time, this doctrine evolved from a mechanism of enforcement into a mechanism of active defense. The DIFC Courts began deploying anti-suit injunctions (ASIs) to restrain parties from initiating or continuing parallel proceedings in onshore UAE courts—a posture that historically caused friction but ultimately solidified the DIFC’s status as a world-class arbitral seat.
This protective stance is vividly illustrated in earlier landmark decisions, such as ARB-001-2014: (1) Fiske (2) Firmin v (1) Firuzeh, where the Court acted as a constitutional shield for arbitral autonomy. In Nuriel, the Defendants attempted to bypass this shield not by challenging the jurisdiction of the DIFC Courts directly, but by attacking the connective tissue of the arbitration agreements themselves. They initiated proceedings in the Abu Dhabi Courts, arguing that subsequent amendments to the underlying commercial contracts failed to explicitly incorporate the original arbitration clauses, thereby rendering the DIFC-seated arbitration agreements invalid for the amended obligations.
The contractual matrix in Nuriel was undeniably dense, typical of high-value joint ventures. It involved a Turnkey Design & Construct Contract for the Nasmi (the "D&B Contract") and an Equipment Supply Contract for the Noreen (the "MEQ Contract"), both originally dated 22 December 2015. Over the next five years, the parties executed a series of modifications, including a Rectification and Amendment Agreement in March 2018 and Amendment No. 3 in March 2020. The Defendants seized upon the drafting mechanics of these later documents, particularly Amendment No. 3, which lacked an express repetition of the arbitration clause found in the 2015 master agreements.
Justice Al Sawalehi’s rejection of this formalistic argument rested on a robust interpretation of the "Clarity Test" under UAE Arbitration Law. The Defendants posited that under UAE law, an arbitration agreement must be explicit and cannot be inferred through vague references to external documents. The Court, however, drew a sharp distinction between ambiguity and general incorporation.
In my view, it matters not, for the purpose of satisfying the Clarity Test under UAE Arbitration Law, whether the arbitration clause is incorporated through a
general
reference rather than an explicit reference.
This holding is critical for cross-border practitioners drafting complex amendment suites. The Court affirmed that a "Continuity Clause"—standard boilerplate stating that all unamended provisions of the master contract remain in full force and effect—is entirely sufficient to carry an arbitration agreement forward into the amended relationship. Justice Al Sawalehi meticulously examined the drafting of Amendment 3 to the D&B Contract, concluding that the absence of a specific call-out to Clause 20.4 (the arbitration provision) did not sever the arbitral mandate.
Having carefully reviewed and considered the parties’ materials and submissions, I am satisfied even in the absence of an express reference to the 20.4 arbitration clause in Amendment 3, the Continuity Clause clearly contemplates and incorporates by reference Clause 20.4 of the D&B Contract and binds the parties.
The Defendants’ strategy relied heavily on onshore jurisprudence, attempting to persuade the DIFC Court that the Abu Dhabi Cassation Court would view the general reference as insufficient. Justice Al Sawalehi turned this argument on its head. Rather than retreating from onshore precedent, he embraced it, demonstrating that the DIFC Court’s interpretation of the Clarity Test is entirely harmonious with the highest echelons of UAE federal jurisprudence.
Having reviewed the Judgments of the Abu Dhabi Cassation Court, I am of the view that these cases reinforce the generally accepted principles underpinning UAE Arbitration Law when interpreting the validity of arbitration agreements, which are not disputed in this case.
By aligning the DIFC’s pro-arbitration stance with Abu Dhabi Cassation Court principles, Justice Al Sawalehi effectively neutralized the Defendants' attempt to create a false dichotomy between offshore and onshore legal standards. The ruling establishes that the strict requirements of the UAE Federal Arbitration Law (Law No. 6 of 2018) regarding the written form of arbitration agreements are fully satisfied by standard commercial incorporation techniques.
The Court’s analytical rigor extended beyond the primary construction contracts to the peripheral "Related Agreements," which included a Coordination Agreement, a Management Services Agreement, a Joint Venture Agreement, and multiple Service Agreements executed in 2020. The Defendants argued that the annexes to the Service Agreements, which contained the arbitration provisions, were separate instruments that failed to bind the primary obligations. Justice Al Sawalehi dismantled this artificial separation, recognizing the commercial reality of integrated contract documents.
I am satisfied that the arbitration provision in the annex to the service agreements which is inherently integrated into the service agreements cannot reasonably be considered as a separate contract.
The procedural history of the Nuriel case further illustrates the DIFC Court’s decisive approach to protecting its jurisdiction. The Claimants initially sought urgent relief, resulting in Justice Sir Jeremy Cooke granting an Interim Anti-Suit Injunction and Alternative Service on 27 November 2023. This interim posture was continued by Justice Cooke on 5 December 2023, holding the line while the substantive arguments regarding incorporation by reference were fully briefed. Justice Al Sawalehi’s final order on 4 September 2024 validates that interim protection, transforming it into a permanent barrier against onshore interference.
The final order leaves no room for ambiguity. The Court commanded that the Defendants are prohibited from taking any further steps in the claims they advanced in Abu Dhabi, and further mandated that they immediately take all necessary steps to discontinue the Abu Dhabi Proceedings. This mandatory injunction to discontinue—rather than merely a prohibitory injunction against further steps—represents the zenith of the DIFC Court’s protective powers. It forces the recalcitrant party to actively unwind their breach of the arbitration agreement, ensuring that the onshore docket is cleared of the offending litigation.
Furthermore, the Court addressed the institutional transition that has reshaped Dubai's arbitral landscape. The original contracts referenced the DIFC-LCIA Arbitration Rules. Following the abolition of the DIFC-LCIA via Decree No. 34 of 2021, the Court explicitly ordered that references to the DIFC-LCIA Rules shall be read as a reference to the DIAC Arbitration Rules 2022. This pragmatic substitution prevents parties from using the institutional transition as a backdoor to invalidate legacy arbitration agreements, ensuring that the substantive intent to arbitrate in the DIFC survives administrative restructuring.
Ultimately, Nuriel v Nuzhat stands as a formidable precedent for commercial litigators. It confirms that the DIFC Courts will look past formalistic discrepancies and unsigned amendments to enforce the commercial reality of a continuous arbitral mandate. By anchoring the decision in both the established Banyan Tree lineage of jurisdictional protection and a pragmatic reading of the UAE Arbitration Law's Clarity Test, Justice Al Sawalehi has ensured that the DIFC remains an impenetrable safe harbor for complex, multi-contract dispute resolution.
What Does This Mean for Practitioners and Claimants?
The issuance of a final injunction pursuant to Article 32(b) of the DIFC Courts Law by H.E. Justice Shamlan Al Sawalehi provides a definitive answer to a recurring jurisdictional headache in UAE-seated arbitrations: the fragmentation of dispute resolution clauses across complex, multi-tiered contractual amendments. While the Claimants ultimately secured their desired relief, forcing the Defendants to discontinue the Abu Dhabi Proceedings, the procedural history of Nuriel v Nuzhat [2024] DIFC ARB 018 serves as a stark cautionary tale. The litigation risk borne by the Claimants was entirely avoidable. The central takeaway for transactional lawyers and litigators alike is uncompromising: drafting precision remains the absolute best defense against jurisdictional challenges. Relying on a court to piece together arbitral intent from a web of related agreements and general continuity clauses is a high-stakes gamble that invites parallel proceedings and exorbitant costs.
The architecture of the dispute rested on a labyrinth of agreements, primarily the Turnkey Design & Construct Contract for the Nasmi (the "D&B Contract") and the Equipment Supply Contract for the Noreen (the "MEQ Contract"), both executed on 22 December 2015. Over the ensuing years, these foundational documents were subjected to multiple amendments, including a Rectification and Amendment Agreement in 2018 and Amendment No. 3 in 2020. The critical failure occurred during the drafting of these subsequent amendments. The drafters neglected to explicitly reiterate or expressly incorporate the original arbitration clauses, such as Clause 20.4 of the D&B Contract. This omission provided the Defendants with the exact jurisdictional wedge they needed to launch parallel litigation in the Abu Dhabi Courts, arguing that the amendments constituted new, separate agreements unburdened by the original DIFC-LCIA arbitration provisions.
Justice Al Sawalehi’s resolution of this ambiguity required a deep dive into the "Clarity Test" under UAE Arbitration Law. The Defendants' strategy hinged on the premise that an arbitration agreement, being an exception to the default jurisdiction of the state courts, must be unequivocally clear and cannot be inferred through vague or general references in subsequent, unsigned, or loosely connected amendments. The Court, however, rejected this rigid formalism, adopting a more commercially pragmatic approach to contractual interpretation.
In my view, it matters not, for the purpose of satisfying the Clarity Test under UAE Arbitration Law, whether the arbitration clause is incorporated through a
general
reference rather than an explicit reference.
While this judicial pronouncement saved the Claimants' arbitral jurisdiction, practitioners must not view it as a license for sloppy drafting. The fact that the Court had to adjudicate whether a general reference satisfies the Clarity Test indicates that the door to jurisdictional challenges remains ajar whenever explicit incorporation is absent. The time and capital expended by Nuriel, Naufil, and Nishat to secure an interim order from Justice Sir Jeremy Cooke in November 2023, fight for its continuation in December, and finally obtain the September 2024 order, could have been entirely circumvented had Amendment No. 3 contained a single sentence expressly reaffirming the original arbitration clause.
The Court’s willingness to look at the 'big picture' of the contractual relationship is a double-edged sword. On one hand, it demonstrates the DIFC Courts' sophisticated understanding of complex commercial transactions, where multiple agreements—such as the Coordination Agreement, the Management Services Agreement dated 22 December 2015, and various operational contracts like Service Agreement No.: Nabah 01/2020—operate as a unified commercial endeavor. Justice Al Sawalehi meticulously traced the connective tissue between these documents, finding that the arbitration provisions were inherently integrated into the broader suite of agreements and could not reasonably be severed simply because an amendment lacked a specific cross-reference.
Having carefully reviewed and considered the parties’ materials and submissions, I am satisfied even in the absence of an express reference to the 20.4 arbitration clause in Amendment 3, the Continuity Clause clearly contemplates and incorporates by reference Clause 20.4 of the D&B Contract and binds the parties.
The reliance on a "Continuity Clause" to bridge the gap left by missing express references is a critical doctrinal pivot. A Continuity Clause typically states that all provisions of the underlying contract, save as specifically amended, remain in full force and effect. By ruling that such a clause clearly contemplates and incorporates by reference the arbitration agreement, the DIFC Court has fortified the utility of boilerplate continuity language against jurisdictional attacks. However, from a risk management perspective, relying on a Continuity Clause is a defensive posture. Claimants are forced to argue backward, proving that the absence of an explicit revocation equates to an affirmative inclusion. This is inherently riskier than pointing to an explicit, forward-looking incorporation clause.
The deployment of the anti-suit injunction in this context underscores its status as a powerful, albeit high-threshold, tool for protecting the arbitral process. The DIFC Courts have increasingly demonstrated a robust willingness to issue anti-suit injunctions to restrain parties from pursuing parallel proceedings in onshore UAE courts or foreign jurisdictions when a valid DIFC-seated arbitration agreement exists. This aligns with the broader trajectory of DIFC supportive jurisdiction, a theme extensively explored in recent jurisprudence such as ARB-005-2025: ARB 005/2025 Nashrah v (1) Najem (2) Nex. The injunction granted to Nuriel and his co-claimants was not merely a slap on the wrist; it was a mandatory order compelling the Defendants to actively discontinue their Abu Dhabi claims, backed by the coercive power of the DIFC Courts.
Yet, securing such an injunction requires the applicant to clear a significant evidentiary hurdle. The Court must be satisfied, to a high degree of probability, that the arbitration agreement is not only valid but directly applicable to the specific dispute being litigated elsewhere. In Nuriel v Nuzhat, the Claimants had to painstakingly reconstruct the contractual history, proving that unsigned amendments and broadly worded service annexes still fell under the umbrella of the original DIFC-LCIA arbitration mandate. The transition from the abolished DIFC-LCIA center to the DIAC Arbitration Rules 2022 added another layer of complexity, requiring the Court to explicitly declare that references to the former shall be construed as references to the latter to ensure the arbitration agreement remained operable.
Furthermore, the Court's analysis required harmonizing DIFC procedural mechanisms with the substantive principles of UAE Arbitration Law. By acknowledging that the Abu Dhabi Cassation Court's judgments reinforce the generally accepted principles underpinning the validity of arbitration agreements, Justice Al Sawalehi signaled a unified judicial approach across the UAE's legal systems regarding the Clarity Test. However, the fact that the Defendants felt emboldened to test these principles in the Abu Dhabi Courts in the first place proves that any perceived ambiguity in drafting will be weaponized by a motivated counterparty.
For practitioners advising clients on contract lifecycle management, the lessons are stark. Every amendment, addendum, rectification agreement, or supplementary service contract must be treated as a potential point of failure for dispute resolution. The assumption that an overarching Master Agreement or a generic Continuity Clause will automatically shield the parties from onshore litigation is dangerous. Opposing counsel will invariably exploit any ambiguity, any unsigned document, or any missing cross-reference to drag the dispute into a forum they perceive as more favorable or simply to exert settlement pressure through procedural attrition.
To mitigate this risk, drafting protocols must mandate that every subsequent agreement explicitly states: "The parties agree that any dispute arising out of or in connection with this Amendment shall be resolved by arbitration in accordance with Clause [X] of the [Original Contract], which is hereby expressly incorporated by reference." This simple, unambiguous formulation eliminates the need for a tribunal or a court to apply the Clarity Test to general references. It removes the necessity of relying on the inherent integration of related agreements. Most importantly, it deprives recalcitrant counterparties of the plausible deniability required to launch parallel proceedings, thereby preserving the speed, confidentiality, and finality that arbitration is designed to provide.
What Issues Remain Unresolved?
H.E. Justice Shamlan Al Sawalehi’s order granting a final injunction pursuant to Article 32(b) of the DIFC Courts Law provides immediate, coercive relief to the Claimants, compelling the Defendants to immediately discontinue the Abu Dhabi Proceedings. Yet, beneath the surface of this decisive anti-suit injunction lies a persistent structural friction between DIFC-seated arbitration and onshore litigation strategies. The tactical deployment of parallel onshore proceedings remains a favored tool for recalcitrant respondents seeking to derail arbitration, and while the DIFC Court has shown its willingness to deploy its injunctive powers, the broader jurisdictional architecture of the UAE guarantees that the boundary lines will continue to be tested.
While the immediate conflict in Nuriel v Nuzhat involved the Abu Dhabi Courts, the potential for future conflict with the Joint Judicial Committee (JJC) remains a factor in jurisdictional disputes across the UAE's bifurcated legal landscape. The JJC, established by Decree 19 of 2016 to resolve conflicts of jurisdiction between the Dubai Courts and the DIFC Courts, has frequently been weaponized by parties seeking to stay DIFC proceedings. As explored in ARB-005-2017: YYY Limited v ZZZ Limited [2017] DIFC ARB 005, the mere filing of a grievance before the JJC can trigger an automatic stay, creating a procedural bottleneck that frustrates the swift resolution of commercial disputes. Although Justice Al Sawalehi did not have to navigate a JJC stay in this specific Abu Dhabi-facing injunction—as conflicts between the DIFC and Abu Dhabi courts implicate federal constitutional mechanisms rather than the Dubai-specific JJC—the underlying vulnerability of DIFC anti-suit injunctions to onshore conflict-resolution bodies remains an unresolved strategic risk. Practitioners drafting complex multi-tiered dispute resolution clauses must still account for the reality that an onshore court might entertain a parallel claim, forcing the parties into a costly jurisdictional tug-of-war before a federal or emirate-level committee.
A central pillar of the Defendants' strategy in the Abu Dhabi proceedings was to exploit the labyrinthine nature of the commercial arrangements, arguing that various amendments and related agreements failed to explicitly incorporate the arbitration clauses. Justice Al Sawalehi dismantled this argument by applying the "Clarity Test" under UAE Arbitration Law (Federal Law No. 6 of 2018).
In my view, it matters not, for the purpose of satisfying the Clarity Test under UAE Arbitration Law, whether the arbitration clause is incorporated through a
general
reference rather than an explicit reference.
This formulation is critical for cross-border practitioners. By ruling that a "general reference" suffices, the DIFC Court aligns itself with a commercially pragmatic interpretation of the Federal Arbitration Law, rejecting the hyper-formalistic demands often advanced by parties seeking to escape their arbitration obligations. However, the ongoing evolution of UAE Arbitration Law will continue to shape the DIFC Court's interpretive scope. The boundary between a valid "general reference" and an invalid, overly vague allusion is not mathematically precise. Future tribunals and courts will inevitably face contracts where the reference is even more oblique than those found in the Turnkey Design & Construct Contract or the Equipment Supply Contract. When a master agreement merely hints at standard terms, or when a chain of emails loosely references a prior contract, the "Clarity Test" will be pushed to its absolute limits.
To fortify his interpretation against potential onshore backlash, Justice Al Sawalehi deliberately anchored his reasoning in onshore precedent, bridging the gap between the offshore common law forum and onshore civil law principles.
Having reviewed the Judgments of the Abu Dhabi Cassation Court, I am of the view that these cases reinforce the generally accepted principles underpinning UAE Arbitration Law when interpreting the validity of arbitration agreements, which are not disputed in this case.
This reliance on Abu Dhabi Cassation Court judgments is a sophisticated judicial maneuver. It insulates the DIFC Court's anti-suit injunction from accusations of overreach by demonstrating that the DIFC Court is applying the exact same substantive arbitration principles as the onshore courts whose proceedings it is enjoining. Yet, it leaves open a profound doctrinal question: what happens when onshore Cassation Court jurisprudence shifts? If future onshore rulings adopt a more restrictive view of incorporation by reference, the DIFC Court may find itself forced to choose between adhering to its own pro-arbitration, commercially flexible precedents or maintaining this harmonized approach with onshore courts. The interpretive harmony celebrated in Nuriel v Nuzhat is contingent on the continued pro-arbitration trajectory of the onshore Cassation Courts.
The most fact-sensitive and potentially vulnerable aspect of the ruling concerns the various service agreements executed between the parties. The Defendants argued that the arbitration provisions were not located in the main body of the agreements but were instead relegated to an accompanying annex, thereby failing the strict writing requirements for arbitration agreements.
I am satisfied that the arbitration provision in the annex to the service agreements which is inherently integrated into the service agreements cannot reasonably be considered as a separate contract.
The concept of "inherent integration" deployed here is a powerful tool for preserving the parties' commercial intent across fragmented documentation. However, the limits of 'inherent integration' in service agreements may be tested in future, less clear-cut cases. What degree of physical, referential, or operational connection is required for an annex to be deemed "inherently integrated"? If an annex containing an arbitration clause is merely attached to an email, rather than formally signed alongside a Management Services Agreement, will the DIFC Court still find inherent integration? The factual matrix in Nuriel v Nuzhat allowed the judge to comfortably find integration, but practitioners cannot treat this as a blanket safe harbor for sloppy drafting. In "battle of the forms" scenarios, or where annexes are updated unilaterally via web links, the doctrine of inherent integration will face severe stress tests.
The dispute also hinged heavily on unsigned amendments and alleged discrepancies in the drafting history. The Defendants attempted to use Amendment No. 3 of the D&B Contract to sever the arbitration agreement, arguing that the absence of an express reference to the arbitration clause in the amendment negated the tribunal's jurisdiction over disputes arising from that specific amendment. Justice Al Sawalehi rejected this by relying on the "Continuity Clause" within the amendment.
Having carefully reviewed and considered the parties’ materials and submissions, I am satisfied even in the absence of an express reference to the 20.4 arbitration clause in Amendment 3, the Continuity Clause clearly contemplates and incorporates by reference Clause 20.4 of the D&B Contract and binds the parties.
This strict enforcement of a Continuity Clause prevents parties from accidentally—or intentionally—jettisoning their dispute resolution mechanism during routine contract variations. It provides vital commercial certainty. Yet, it raises complex questions about the doctrine of separability and the scope of the original arbitration agreement. If an amendment fundamentally alters the commercial bargain, introducing entirely new obligations or parties, at what point does a generic Continuity Clause fail to capture the specific intent to arbitrate the new obligations? While the Trade Credit Agreement in this case was straightforward, the multi-layered, unsigned amendments to the D&B and MEQ contracts represent the kind of documentary chaos that frequently breeds jurisdictional challenges.
The ruling solidifies the DIFC Court's willingness to issue final anti-suit injunctions to protect its supervisory jurisdiction and enforce the negative obligations of an arbitration agreement. However, the reliance on flexible concepts like "general reference," "inherent integration," and "continuity clauses" means that the battleground has merely shifted from the existence of the arbitration agreement to the precise mechanics of its incorporation. As commercial transactions in the region grow increasingly complex, the tension between the commercial reality of fragmented contracting and the strict formal requirements of arbitration law will continue to generate friction, ensuring that the boundaries of the DIFC Court's injunctive powers will be litigated again.