On 20 January 2025, H.E. Justice Shamlan Al Sawalehi granted an ex parte interim anti-suit injunction, effectively halting proceedings in the English High Court that had been active for eleven months. The dispute, pitting Nashrah against the estate of the late Mr. Najem and Mr. Nex, centered on the validity of an arbitration agreement referencing the now-redundant DIFC-LCIA rules. By 23 June 2025, the Court had systematically dismissed the Defendants' attempts to discharge the injunction, challenge jurisdiction, and secure permission to appeal, asserting the DIFC’s supportive role in protecting the integrity of the arbitral process.
For cross-border litigators and arbitration counsel, this case serves as a critical stress test for the DIFC’s supportive jurisdiction under Article 32 of the Court Law. It clarifies that the transition from DIFC-LCIA to DIAC does not render legacy arbitration agreements void, but rather 'linguistically outdated,' and reaffirms the Court’s willingness to deploy anti-suit injunctions to protect the seat of arbitration—or the intended arbitral forum—even when parallel proceedings are entrenched in foreign jurisdictions like the English High Court.
How Did the Dispute Between Nashrah and the Defendants Arise?
The genesis of the jurisdictional battle in Nashrah v Najem lies in a common, yet increasingly perilous, drafting oversight in Middle Eastern commercial contracts: the failure to update dispute resolution clauses following the abolition of the DIFC-LCIA Arbitration Centre. The underlying commercial relationship centered on a Repatriation Agreement with Mr Najem, a contract governing medical repatriation services provided by the Claimant, Nashrah. The First Defendant, Mr. Najem, is now deceased and represented by his estate’s executors, while the Second Defendant, Mr. Nex, acted as his agent.
Crucially, the Repatriation Agreement contained an arbitration clause directing all disputes to be resolved under the DIFC-LCIA rules, with the seat designated as Dubai and the language of the proceedings as English. For years, such clauses were the gold standard for cross-border contracts in the region. However, the landscape shifted dramatically with the promulgation of Dubai Decree No. 34 of 2021, which dissolved the DIFC-LCIA and transferred its caseload and administrative functions to the Dubai International Arbitration Centre (DIAC). While the Decree explicitly preserved the validity of existing arbitration agreements referencing the DIFC-LCIA, opportunistic litigants have frequently attempted to weaponise the institutional transition to escape their arbitral obligations.
The Defendants in this matter seized upon the institutional redundancy as a jurisdictional loophole. Their strategy was predicated on the assertion that the abolition of the agreed-upon arbitral institution rendered the arbitration agreement entirely inoperative, leading them to initiate the dispute in the English High Court based on legal advice that the arbitration agreement was void as it only referred to the now-redundant DIFC-LCIA rules. By filing in London, the Defendants sought to bypass the arbitral process entirely, forcing Nashrah into a foreign forum to defend the validity of a Dubai-seated arbitration clause. The English litigation advanced slowly, remaining 11 months in process before the jurisdictional conflict reached its boiling point. Nashrah, seeking to enforce its contractual right to arbitrate, formally filed a Request for Arbitration in DIAC on 13 December 2024, seeking declaratory relief regarding the validity of the arbitration agreement.
The initiation of the DIAC arbitration triggered an aggressive counter-maneuver from the Defendants in London. In response to Nashrah’s parallel application for a mandatory stay of the English proceedings, the Defendants filed an application before the English High Court for an anti-arbitration injunction (AAI). The Defendants argued, somewhat paradoxically, that the English Court should restrain Nashrah from pursuing the DIAC arbitration based on the kompetenz-kompetenz principle and an asserted state of urgency, insisting that the English High Court must serve as the sole determinative forum for the dispute.
The English AAI hearing was scheduled for 21 January 2025. Facing the imminent threat of being enjoined from exercising its arbitral rights by a foreign court, Nashrah was forced to seek ex parte urgent relief from the DIFC Courts. Nashrah’s application invoked the DIFC Court’s supportive jurisdiction under Article 32 of the DIFC Court Law, asking the Court to protect the integrity of the Dubai-seated arbitration by enjoining the Defendants from pursuing their AAI in London.
H.E. Justice Shamlan Al Sawalehi heard the urgent application on 20 January 2025, just one day before the scheduled English hearing. Recognising the severe risk to the arbitral process, the Court intervened decisively.
On 20 January 2025, the Claimant obtained an ex parte interim anti-suit injunction issued by this Court restraining the Defendants from continuing proceedings in the English High Court in alleged breach of an arbitration agreement.
Despite the issuance of the DIFC anti-suit injunction, the Defendants attended the English High Court hearing on 21 January 2025. While they refrained from advancing the AAI application—presumably to avoid direct contempt of the DIFC Order—they proceeded with ancillary applications, including a substitution application to replace Mr. Najem with his executors and a request to expedite the jurisdictional challenge under Section 9 of the English Arbitration Act 1996. The English Court subsequently expedited the Section 9 hearing to late February 2025, deepening Nashrah’s concerns that the English proceedings were advancing in a manner inconsistent with the parties' agreement to arbitrate in Dubai.
The battleground then shifted back to the DIFC Courts for the return date hearing on 5 February 2025. The Defendants mounted a comprehensive attack on the ex parte injunction, filing a Discharge Application that sought not only to dissolve the ASI but also to claim damages and indemnity costs. The Defendants argued that the DIFC Courts lacked jurisdiction to issue the injunction, asserting that the relevant provisions of the DIFC Arbitration Law and the DIFC Court Law did not apply. They further alleged that Nashrah had breached its duty of full and frank disclosure under Rule 23.11 of the Rules of the DIFC Courts (RDC) by misrepresenting the Defendants' position during the ex parte hearing.
The Defendants' core substantive argument remained that the transition to DIAC was fatal to the arbitration agreement. They characterised Nashrah’s decision to commence proceedings at DIAC as illogical, unnecessary and imposed unjustified substantial costs on the estate, arguing that the English High Court was already seized of the exact same question regarding the clause's validity.
H.E. Justice Shamlan Al Sawalehi systematically dismantled these arguments in his reasons issued on 19 February 2025. The Court affirmed its supportive jurisdiction under Article 32 of the Court Law, establishing that the DIFC Courts possess the authority to grant anti-suit injunctions to protect arbitrations seated within the Emirate of Dubai, even if the specific institutional rules have been superseded by statutory decree. Addressing the legacy clause directly, the Court provided a vital clarification for practitioners navigating the post-Decree 34 environment. The Court was satisfied that a valid arbitration agreement existed between the parties, noting that DIAC had accepted jurisdiction on a prima-facie basis and registered the arbitration initiated by the Claimant. It further clarified that the move from DIFC-LCIA to DIAC would not render a DIFC-LCIA agreement invalid, but merely linguistically outdated.
The characterisation of the DIFC-LCIA reference as "merely linguistically outdated" rather than legally void strikes at the heart of the Defendants' strategy. It reinforces the pro-arbitration stance of the DIFC Courts and signals a low tolerance for jurisdictional gamesmanship based on the administrative consolidation of Dubai's arbitral institutions. The Court also dismissed the allegations regarding the breach of full and frank disclosure, finding no procedural irregularity in Nashrah's ex parte application.
The litigation exposes the severe practical dangers of relying on unamended legacy clauses. While the DIFC Courts will ultimately uphold the validity of these agreements, the failure to proactively amend contracts to reflect the DIAC transition invites well-resourced counterparties to launch satellite litigation in foreign courts. This dynamic echoes the jurisdictional complexities recently explored in ARB-006-2024: ARB 006/2024 Neville v Nigel, where ambiguities in dispute resolution drafting forced parties into protracted preliminary battles before the substantive merits could even be addressed.
Following the Court's refusal to discharge the injunction in February, the Defendants initiated a final wave of procedural resistance. On 19 February 2025, they filed a formal Jurisdiction Application under RDC 12.1 and 23.1. Weeks later, on 12 March 2025, they filed an Application for Permission to Appeal the ASI Order, followed swiftly by a Stay Application seeking to halt all DIFC proceedings pending the outcome of their proposed appeal.
The Court dealt with this triad of applications on the papers, issuing a consolidated order on 23 June 2025. H.E. Justice Shamlan Al Sawalehi found that the Defendants had failed to demonstrate any real prospect of success on appeal or identify any novel jurisdictional defect that had not already been adjudicated. The Court dismissed the Defendants' application for permission to appeal, alongside the stay and jurisdiction challenges, bringing finality to the DIFC phase of the preliminary dispute.
As for the Jurisdiction Application, I am satisfied that the reasoning in my earlier judgment of 19 February 2025 addressed all relevant matters under RDC 12.1 and 23.1.
By decisively shutting down the Defendants' attempts to litigate the validity of the arbitration agreement in London, the DIFC Courts preserved the primacy of the arbitral tribunal to determine its own jurisdiction. The dispute serves as a stark reminder to commercial drafters: while the courts will intervene to protect the arbitral process, the cost, delay, and multi-jurisdictional friction generated by a "linguistically outdated" clause can be immense.
How Did the Case Move From Ex Parte Application to Final Hearing?
The procedural timeline of Nashrah v Najem serves as a masterclass in judicial boundary-setting and case management. When a party seeks to bypass an arbitration agreement by initiating proceedings in a foreign forum—in this instance, the English High Court—the supervisory court must act with both speed and unyielding jurisdictional confidence. The trajectory of this dispute, spanning a highly compressed five-month period, illustrates the DIFC Court’s highly efficient mechanism for preserving arbitral integrity against a barrage of procedural resistance.
The litigation commenced with a preemptive strike. On 20 January 2025, Nashrah moved decisively to halt the parallel litigation that had been advancing in London.
On 20 January 2025, the Claimant obtained an ex parte interim anti-suit injunction issued by this Court restraining the Defendants from continuing proceedings in the English High Court in alleged breach of an arbitration agreement.
The strategic choice to proceed ex parte is a critical feature of cross-border anti-suit practice. The element of surprise is necessary to prevent the respondent from seeking preemptive relief—such as an anti-anti-suit injunction—in the competing foreign forum before the supervisory court can act. H.E. Justice Shamlan Al Sawalehi grounded this immediate intervention in the interim jurisdiction under Article 22 of the DIFC Court Law. This statutory mechanism allows the DIFC Courts to issue protective measures even before full jurisdictional arguments are ventilated, provided there is a prima facie case that the arbitral process is under imminent threat.
However, ex parte relief is inherently fragile; it demands swift adversarial testing to ensure that the court's coercive powers have not been deployed on an incomplete factual matrix. Recognizing this, the Court scheduled a Return Date hearing on 5 February 2025, a mere sixteen days after the initial order. The timeline imposed on the parties was highly compressed. The Defendants, representing the estate of the late Mr. Najem and Mr. Nex, filed their evidence in answer on 3 February, and Nashrah replied the following day. Concurrently, on 4 February, the Defendants formally filed Application No. ARB-005-2025/2, seeking to discharge the injunction entirely.
The 5 February hearing served as the first substantive crucible for the injunction. The Defendants likely argued that the underlying arbitration agreement, which referenced the now-redundant DIFC-LCIA rules, was inoperable, thereby stripping the DIFC Court of any supervisory mandate over the dispute. H.E. Justice Shamlan Al Sawalehi was unpersuaded by the attempt to leverage the institutional transition to invalidate the arbitration agreement.
Following that hearing, and having considered evidence and submissions from both parties, I issued an Order on 6 February 2025 rejecting the Defendants’ application to discharge the injunction, upholding the Injunction Order, and awarding costs to the Claimant.
The issuance of the 6 February Order, followed by detailed written reasons on 19 February, cemented the Court's initial posture. The DIFC Court does not view the abolition of the DIFC-LCIA as a jurisdictional void that foreign courts can exploit to usurp disputes. Instead, the Court maintains a robust protective umbrella over agreements that selected the DIFC as a seat or envisioned DIFC-LCIA administration, ensuring that the negative covenant—the promise not to sue in a national court—remains enforceable.
Defeated at the return date, the Defendants shifted their tactics. Rather than merely arguing that the injunction was unwarranted on the facts, they launched a direct attack on the Court's foundational authority to hear the matter.
On 19 February 2025, the Defendants filed the Jurisdiction Application challenging the jurisdiction of the DIFC Courts pursuant to Rule 12.1 and Rule 23.1 of the Rules of the DIFC Courts (the “RDC”).
This challenging the jurisdiction of the DIFC Courts under RDC Part 12 mirrored a common playbook in complex cross-border disputes: if the substantive injunction holds, attack the forum's jurisdictional nexus. The Defendants argued that without a functioning DIFC-LCIA, the necessary connective tissue to the DIFC was severed, rendering the Court an inappropriate forum to issue coercive relief against proceedings in London.
Nashrah’s defense against this jurisdictional attack was rooted firmly in the statutory framework of the Arbitration Law, emphasizing that the Court's supportive powers are not strictly tethered to the operational status of a specific arbitral institution.
The Respondent also rejects the Applicants’ jurisdictional objections, noting that the arbitration clause referred disputes to DIFC-LCIA arbitration, and that the DIFC Courts had a sufficient nexus to entertain interim relief under Article 32.
The reference to Article 32 of the DIFC Arbitration Law is pivotal. It empowers the DIFC Courts to grant interim measures in relation to arbitration proceedings, irrespective of whether the juridical seat is within the DIFC. By invoking Article 32, Nashrah effectively neutralized the Defendants' argument that the redundancy of the DIFC-LCIA rules extinguished the Court's supportive jurisdiction. The statutory architecture is designed to be institution-agnostic when it comes to the preservation of rights and the prevention of parallel litigation.
Undeterred by the uphill battle on jurisdiction, the Defendants escalated their procedural resistance. On 12 March 2025, they filed an Application for Permission to Appeal the 6 February Order. Eight days later, on 20 March 2025, they filed Application No. ARB-005-2025/4, seeking a stay of the proceedings and a stay of their own Jurisdiction Application pending the outcome of the appeal.
This layering of applications—a discharge attempt, a jurisdiction challenge, an appeal request, and a stay application—creates a procedural thicket designed to exhaust the claimant and paralyze the court. The DIFC Court's handling of such tactics is highly instructive for practitioners. In ARB-005-2014: Eava v Egan [2014] ARB 005, the Court demonstrated a clear intolerance for parallel challenges intended primarily to delay arbitral enforcement. A similar judicial philosophy permeated H.E. Justice Shamlan Al Sawalehi's approach in the present dispute. The Court recognizes that allowing a party to freeze an anti-suit injunction through sequential procedural applications effectively grants them the very relief they seek: the freedom to continue litigating in the foreign forum while the supervisory court is bogged down in satellite litigation.
Rather than allowing the Defendants to drag the matter through multiple oral hearings, the Court consolidated the outstanding applications and determined them on the papers. On 23 June 2025, the Court delivered a comprehensive dismissal of the Permission to Appeal Application, the Stay Application, and the Jurisdiction Application. Addressing the jurisdictional challenge specifically, the Court found that the matter had already been conclusively determined during the injunction phase.
As for the Jurisdiction Application, I am satisfied that the reasoning in my earlier judgment of 19 February 2025 addressed all relevant matters under RDC 12.1 and 23.1.
By referencing his earlier judgment, H.E. Justice Shamlan Al Sawalehi signaled that the Court will not entertain repetitive bites at the jurisdictional apple. Once the Court has analyzed the RDC 12.1 factors and affirmed its competence to issue interim relief, subsequent applications that merely repackage the same arguments under a different procedural guise will be summarily dismissed. The rapid disposal of these applications on the papers underscores the Court's commitment to procedural economy and its refusal to let the RDC be weaponized to undermine arbitral integrity.
The financial consequences of this failed procedural attrition were standard but significant. The Court ordered that the Defendants pay the costs of the Applications on the standard basis, requiring a statement of costs not exceeding three pages to be submitted within five working days. This swift cost assessment mechanism further discourages speculative jurisdictional challenges and penalizes parties who attempt to litigate by attrition.
The trajectory from the 20 January ex parte application to the 23 June final dismissals provides a clear blueprint for commercial litigators. The DIFC Court will act rapidly to restrain foreign proceedings that threaten an arbitration agreement. When respondents attempt to dismantle that protection through a barrage of RDC Part 12 and Part 23 applications, the Court will leverage its case management powers to resolve them efficiently, ensuring that the anti-suit injunction remains an effective, rather than merely theoretical, remedy. The redundancy of the DIFC-LCIA rules may have introduced drafting complexities for commercial parties, but as the procedural history of Nashrah v Najem proves, it has not diminished the DIFC Court's statutory power or its procedural resolve to enforce the negative covenant inherent in an arbitration clause.
What Is the 'Supportive Jurisdiction' Doctrine and Why Does It Matter Here?
The architecture of cross-border arbitration relies entirely on the willingness of supervisory courts to enforce the negative covenant of an arbitration agreement—the promise not to sue in a national court. When a party breaches that covenant, the arbitral tribunal is often powerless to stop them, lacking the coercive authority of a state apparatus. It is in this perilous gap that the doctrine of 'supportive jurisdiction' operates. In Nashrah v Najem, H.E. Justice Shamlan Al Sawalehi deployed this doctrine with surgical precision, anchoring the DIFC Court’s authority to issue an anti-suit injunction (ASI) firmly within Article 32 of the DIFC Court Law.
The procedural flashpoint occurred in early 2025, following a protracted jurisdictional skirmish. The Claimant, facing an imminent threat to its arbitral rights, approached the DIFC Courts for urgent relief. The resulting intervention was decisive:
On 20 January 2025, the Claimant obtained an ex parte interim anti-suit injunction issued by this Court restraining the Defendants from continuing proceedings in the English High Court in alleged breach of an arbitration agreement.
To understand the gravity of this intervention, one must dissect the statutory machinery that enabled it. The Defendants fiercely contested the DIFC Court’s authority to issue such an order, arguing that the statutory prerequisites for an ASI were absent. Their challenge struck at the heart of the Court's jurisdictional framework, with the Defendants submitting that the DIFC Court lacked jurisdiction to grant an ASI, as Article 24(b)(iii) of the DIFC Arbitration Law, Articles 22(2) and 32 of the DIFC Court Law, and RDC 25—all of which the Claimant relied on—did not apply in these circumstances. The Defendants’ argument rested on a restrictive reading of the DIFC’s statutory instruments. They posited that because the arbitration agreement designated the seat as “Dubai” rather than explicitly naming the Dubai International Financial Centre, the DIFC Courts lacked the necessary territorial nexus to intervene. Furthermore, they suggested that the specific interim measures outlined in the DIFC Arbitration Law provided an exhaustive code, leaving no room for the broader equitable powers found in the Court Law.
H.E. Justice Shamlan Al Sawalehi rejected this compartmentalised view of the DIFC’s judicial powers. Instead, the Court embraced the Claimant’s reliance on a composite jurisdictional foundation, primarily driven by Article 32 of the DIFC Court Law (DIFC Law No. 10 of 2004). Article 32 empowers the Court to grant an injunction in all cases in which it appears to the Court to be just and convenient to do so. When read in conjunction with the Judicial Authority Law (JAL), this provision transforms the DIFC Court into a formidable protector of arbitral agreements.
The Claimant’s successful articulation of this framework was noted in the judgment, where the Claimant submitted, in the alternative, that the court ought to exercise its supportive jurisdiction under Article 13 of the Application of DIFC Law, read with Article 32 and Article 5(A)(1)(E) of the JAL.
The Court’s acceptance of this composite framework is the cornerstone of the supportive jurisdiction doctrine. It establishes that the DIFC Court’s power to grant protective relief is not strictly confined to arbitrations seated within the financial centre’s physical boundaries. The doctrine recognises that the DIFC Court, as an integral component of the Dubai judicial system, possesses a legitimate interest in safeguarding arbitrations that have a nexus to the Emirate. This is particularly true when the parties originally selected an arbitral institution domiciled within the DIFC, such as the now-defunct DIFC-LCIA.
This expansive approach to jurisdiction echoes the foundational principles established in earlier landmark rulings, notably Banyan Tree Corporate PTE Ltd v Meydan Group LLC, where the Court confirmed its status as a conduit jurisdiction. In Nashrah v Najem, the Court evolved that conduit function into a proactive shield. The supportive jurisdiction doctrine dictates that the Court will not stand idly by while a party attempts to bypass a valid arbitration agreement through foreign litigation, regardless of whether the seat is technically onshore Dubai or the DIFC itself. The Court’s mandate under Article 32 is to ensure that the arbitral process is not frustrated before it even begins.
The necessity of this doctrine becomes starkly apparent when examining the tactical maneuvering that necessitated the ex parte interim anti-suit injunction. The underlying dispute arose from a Repatriation Agreement containing an arbitration clause that referenced the DIFC-LCIA rules. Following the enactment of Decree No. 34 of 2021, which abolished the DIFC-LCIA and transferred its caseload to the Dubai International Arbitration Centre (DIAC), the Defendants sought to capitalise on the institutional transition. Armed with legal advice suggesting the arbitration agreement was void because the referenced rules have since become redundant, the Defendants initiated proceedings in the English High Court.
This was not merely a parallel proceeding; it was a direct assault on the arbitral tribunal's kompetenz-kompetenz. The English litigation had been active for nearly a year, creating a significant risk of conflicting judgments and wasted costs. The timeline underscores the urgency:
The English High Court proceedings were 11 months in process when the Claimant finally filed a Request for Arbitration with DIAC in December 2024, seeking declaratory relief on the validity of the arbitration agreement. In response, the Defendants escalated the conflict by filing an application in London for an Anti-Arbitration Injunction (AAI), seeking to restrain the Claimant from pursuing the DIAC arbitration entirely.
The English Anti-Arbitration Injunction (“AAI”) Hearing was scheduled for 21 January 2025. This created a critical juncture. If the English Court granted the AAI, the Dubai-seated arbitration would be effectively strangled in its crib. The Claimant required an immediate counter-measure to preserve the status quo and protect the jurisdiction of the DIAC tribunal.
It was against this backdrop of extreme urgency and jurisdictional brinkmanship that H.E. Justice Shamlan Al Sawalehi exercised the Court's supportive jurisdiction under Article 32. The resulting order was unequivocal in its intent to halt the foreign interference, with the judge stating on 20 January 2025 that he was satisfied the conditions to grant an interim injunction were met, and was satisfied again for the anti-suit injunction to be granted, restraining the Defendants from initiating or continuing proceedings before any court or tribunal in the United Kingdom, or any other alternative jurisdiction outside the DIFC.
The significance of this ruling extends far beyond the immediate parties. By affirming its jurisdiction to grant an ASI under these circumstances, the DIFC Court sent a clear message to the international legal community regarding the aftermath of Decree 34. The abolition of the DIFC-LCIA does not create a jurisdictional vacuum, nor does it provide a free pass for parties to abandon their arbitration agreements in favour of foreign litigation. The DIFC Court will actively police attempts to weaponise the institutional transition.
The supportive jurisdiction doctrine, as articulated through Article 32, serves as the ultimate backstop. It ensures that questions regarding the validity of an arbitration agreement—even one referencing redundant rules—are determined by the arbitral tribunal itself, or by the supervisory courts of the seat, rather than being preempted by a foreign court. The Court’s willingness to issue an ex parte ASI on the eve of an English High Court hearing demonstrates a robust commitment to the integrity of the arbitral process. It confirms that the DIFC Court Law provides the necessary statutory muscle to enforce negative covenants, cementing the DIFC's reputation as a jurisdiction that not only respects arbitration but actively defends it against cross-border collateral attacks.
How Did Justice Al Sawalehi Reach the Decision to Uphold the Injunction?
The foundational conflict in Nashrah v Najem [2025] DIFC ARB 005 required the Dubai International Financial Centre (DIFC) Courts to navigate the turbulent waters left in the wake of Dubai Decree No. 34 of 2021. The Decree, which abruptly abolished the DIFC-LCIA Arbitration Centre and transferred its caseload to the Dubai International Arbitration Centre (DIAC), has generated a cottage industry of jurisdictional challenges. For parties seeking to escape their arbitral bargains, the institutional transition provided a convenient technical loophole: arguing that the specific reference to the now-defunct DIFC-LCIA rules rendered the entire arbitration agreement void or inoperable. H.E. Justice Shamlan Al Sawalehi’s decision to uphold the Interim Anti-Suit Injunction (“ASI”) represents a robust rejection of this technical opportunism, prioritizing the substantive validity of the arbitration agreement over the Defendants' procedural objections regarding rule redundancy.
The procedural history of the dispute reveals a calculated forum-shopping strategy by the Defendants
How Does the DIFC Approach Compare to the English High Court?
The jurisdictional friction between the Dubai International Financial Centre (DIFC) Courts and the English High Court in Nashrah v Najem exposes a fundamental divergence in how each forum approaches the transitional fallout of Decree 34 of 2021. The English High Court was positioned by the Defendants as an alternative forum to bypass the arbitral process entirely, leveraging the abolition of the DIFC-LCIA Arbitration Centre to argue that the underlying arbitration agreement had been rendered inoperable. The DIFC Court, conversely, asserted its authority to restrain parties from continuing foreign proceedings that breach arbitration agreements, deploying the anti-suit injunction (ASI) as a robust jurisdictional shield.
The timeline of the parallel litigation illustrates the escalating threat to the arbitral process. The English High Court proceedings had been active for eleven months before the Claimant sought refuge in the DIFC Courts. The Defendants had initiated the London litigation on the premise that the arbitration agreement, which explicitly referenced the now-defunct DIFC-LCIA rules, was void. H.E. Justice Shamlan Al Sawalehi outlined the genesis of the cross-border clash:
The dispute was initiated in the English High Court by the Defendant pursuant to legal advice that the arbitration agreement was void as it only owed to the DIFC-LCIA rules, which have since become redundant.
By entertaining the litigation, the English High Court inadvertently became a vehicle for challenging the fundamental validity of a Dubai-seated arbitration agreement. The Claimant had applied for a mandatory stay of the English proceedings pursuant to Section 9 of the UK Arbitration Act 1996. However, anticipating a complex jurisdictional battle over the effect of Decree 34, the Defendants escalated the conflict by filing an application for an Anti-Arbitration Injunction (AAI) before the English High Court. The Defendants sought to restrain the Claimant from pursuing the arbitration, arguing that the English High Court must be the sole determinative forum for resolving the validity question.
This maneuver struck directly at the heart of the kompetenz-kompetenz principle—the doctrine that an arbitral tribunal possesses the inherent authority to determine its own jurisdiction. If the English High Court were permitted to proceed with the AAI hearing scheduled for 21 January 2025, the Claimant risked being permanently foreclosed from exercising its arbitral rights under the Repatriation Agreement. Faced with this existential threat to the arbitration, the Claimant applied to the DIFC Courts for urgent, ex parte relief.
The DIFC Court’s response was decisive and unapologetically protective of the arbitral seat. On 20 January 2025, H.E. Justice Shamlan Al Sawalehi granted an interim anti-suit injunction, effectively halting the Defendants' pursuit of the AAI in London. The DIFC Court did not defer to the English High Court’s ongoing management of the dispute; rather, it asserted its primary supervisory authority over the arbitration agreement. The Court restraining the Defendants from initiating or continuing proceedings in the United Kingdom demonstrated a proactive stance in defending the integrity of the arbitral process. H.E. Justice Shamlan Al Sawalehi reaffirmed this position on the return date:
On 20 January 2025, I was satisfied that the conditions to grant an interim injunction were met; I am satisfied here again for the anti-suit injunction to be granted, restraining the Defendants from initiating or continuing proceedings before any court or tribunal in the United Kingdom, or any other alternative jurisdiction outside the DIFC.
The doctrinal foundation for this intervention rested on the DIFC Court’s supportive jurisdiction. The Claimant invoked Article 32 of the DIFC Court Law, read in conjunction with Article 13 of the Application of DIFC Law, to establish the Court's power to issue injunctive relief in support of arbitration. The Defendants fiercely contested this statutory basis, arguing that the DIFC Court lacked the requisite jurisdictional anchor to interfere with the English proceedings.
The Defendants submit that the DIFC Court does not have jurisdiction to grant an ASI, as Article 24(b)(iii) of the DIFC Arbitration Law, Articles 22(2) and 32 of the DIFC Court Law, and RDC 25 – all of which the Claimant rely on – do not apply in these circumstances.
The Defendants further argued that the Claimant’s decision to commence arbitration at the Dubai International Arbitration Centre (DIAC) while the English High Court was already seized of the validity question was an abuse of process. They contended that the parallel track imposed unjustified financial burdens and duplicated judicial efforts.
The Defendants submit that the Claimant approaching DIAC was illogical, unnecessary and imposed unjustified substantial costs on the Defendants just to answer the same question the English High Court is considering.
This argument highlights the core philosophical difference between the two forums' approaches. From the Defendants' perspective, the English High Court was already addressing the validity of the arbitration agreement, making the DIAC arbitration redundant. From the DIFC Court's perspective, the English High Court should never have been asked to answer that question in the first instance. The determination of whether the abolition of the DIFC-LCIA rules vitiated the arbitration agreement is a matter squarely within the purview of the arbitral tribunal, subject only to the supervisory oversight of the courts of the seat.
The DIFC Court’s approach to the substantive impact of Decree 34 further distinguishes its jurisprudence from the potential outcomes in foreign courts. While a foreign court might grapple with complex questions of contractual frustration or the strict interpretation of institutional rules, the DIFC Court adopted a pragmatic, pro-arbitration stance. H.E. Justice Shamlan Al Sawalehi refused to allow the administrative restructuring of Dubai's arbitral landscape to serve as an escape hatch for reluctant respondents. The Court noted that DIAC had already accepted jurisdiction on a prima facie basis, and the judicial branch saw no reason to undermine that institutional determination.
I am also satisfied that a valid arbitration agreement exists between the parties. DIAC accepted jurisdiction on a prima-facie basis and registered the arbitration initiated by the Claimant, and so I see no reason why the DIFC Court would act contrary to this decision; nonetheless, the move from DIFC-LCIA to DIAC would not render DIFC-LCIA agreement invalid, but merely linguistically outdated.
By characterizing the reference to the defunct rules as merely linguistically outdated, the DIFC Court effectively neutralized the Defendants' primary argument in the English proceedings. This robust defense of the arbitration agreement mirrors the protective posture historically adopted by the DIFC Courts in cases like Hayri International Llc v (1) Hazim Telecom Private Limited (2) Hazim Telecom Limited [2016] DIFC AR, where the Court similarly deployed anti-suit injunctions to prevent parties from circumventing their arbitral obligations through foreign litigation.
However, the DIFC Court’s willingness to issue anti-suit injunctions is not without rigorous procedural safeguards. The appellate phase of Nashrah v Najem demonstrates that the jurisdictional shield is subject to strict scrutiny, particularly regarding the duties of applicants seeking ex parte relief. The Defendants sought permission to appeal the continuation of the ASI, alleging severe procedural defects in the Claimant's initial application. They argued that the Claimant had committed a breach of their obligations for full and frank disclosure under Rule 23.11 of the Rules of the DIFC Courts (RDC).
The Defendants contended that the Claimant had misrepresented the status of the English proceedings and failed to disclose critical defenses available to the Estate of the Late Mr. Najem. The timing of the ex parte application was also heavily scrutinized by the appellate court. H.E. Chief Justice Wayne Martin noted the aggressive tactical nature of the Claimant's intervention:
The day before that hearing was to occur, the Respondent commenced proceedings in this Court seeking an anti-suit injunction restraining the Appellants from prosecuting the English proceedings and applied for an interim injunction to that effect without notice to the Appellants.
On 30 July 2025, H.E. Chief Justice Wayne Martin granted permission to appeal on several grounds, including those relating to the court's jurisdiction to grant the ASI, the definition of a consumer contract under DIFC law, and the alleged breaches of procedural fairness. The appellate court recognized that while the DIFC Court possesses the authority to protect arbitral proceedings, the exercise of that power must strictly adhere to the procedural requirements of the RDC. The Chief Justice imposed a financial safeguard, ordering that as a condition of the grant of permission to appeal, the Appellants must pay USD 80,000 into the Court.
This appellate development underscores the sophisticated nature of the DIFC's approach. The Court of First Instance acts decisively to prevent foreign courts from dismantling Dubai-seated arbitrations based on local legislative changes. Simultaneously, the Court of Appeal ensures that the extraordinary remedy of an ex parte anti-suit injunction is not abused by litigants seeking to outmaneuver their opponents without providing full and frank disclosure.
The contrast with the English High Court is stark. The English Court, bound by its own procedural rules and the requirements of Section 9 of the Arbitration Act 1996, was compelled to entertain the Defendants' arguments regarding the validity of the arbitration agreement. The English framework requires a court to be satisfied that a valid arbitration agreement exists before granting a stay of proceedings. When the validity is challenged on the basis of foreign legislative decrees—such as Decree 34—the English Court must engage in a complex analysis of foreign law and contractual interpretation.
The DIFC Court bypasses this protracted inquiry by asserting its primary supervisory jurisdiction and enforcing the kompetenz-kompetenz principle. By issuing the anti-suit injunction, the DIFC Court effectively removed the validity question from the English High Court's docket, reserving it for the DIAC arbitral tribunal. This proactive stance ensures that parties cannot use the administrative transition from DIFC-LCIA to DIAC as a pretext to drag their counter-parties into lengthy and expensive foreign litigation. The DIFC Court’s approach solidifies its reputation as a fiercely protective supervisory jurisdiction, willing to deploy its injunctive powers to maintain the primacy of the arbitral process against collateral attacks in alternative forums.
Which Earlier DIFC Cases Frame This Decision?
The aggressive deployment of an anti-suit injunction to halt foreign proceedings is never an isolated procedural event; it is the sharp end of a court’s broader jurisprudential philosophy regarding its relationship with arbitration. In Nashrah v Najem, the Dubai International Financial Centre (DIFC) Courts were confronted with a classic cross-border skirmish: a claimant seeking to enforce an arbitration agreement referencing a defunct arbitral institution, and defendants running to the English High Court to bypass the arbitral process entirely. The DIFC Court’s response—swiftly enjoining the English proceedings and systematically dismantling the defendants' subsequent jurisdictional challenges—does not emerge from a vacuum. Rather, the Court’s reasoning is deeply rooted in a long line of DIFC jurisprudence dedicated to protecting the arbitral seat, preserving the integrity of the arbitration agreement, and enforcing the strict procedural duties required of parties seeking ex parte relief.
The procedural history of the dispute reveals a rapid escalation of hostilities. The underlying conflict centered on a medical repatriation services contract containing an arbitration clause that referenced the DIFC-LCIA rules. Following the abolition of the DIFC-LCIA by Dubai Decree No. 34 of 2021, the Claimant, Nashrah, initiated proceedings before the Dubai International Arbitration Centre (DIAC). The Defendants, the estate of the late Mr. Najem and Mr. Nex, resisted, applying for an injunction in the English proceedings to restrain the arbitration. Nashrah retaliated by approaching the DIFC Court of First Instance.
On 20 January 2025, the Claimant obtained an ex parte interim anti-suit injunction issued by this Court restraining the Defendants from continuing proceedings in the English High Court in alleged breach of an arbitration agreement.
The willingness of H.E. Justice Shamlan Al Sawalehi to grant such relief ex parte underscores the DIFC Court’s robust interpretation of its supportive powers. The foundation for this intervention lies in Article 22 of the DIFC Court Law, which grants the Court broad jurisdiction to issue interim orders. The Defendants immediately launched a multi-pronged counter-attack, filing a Jurisdiction Application challenging the jurisdiction of the DIFC Courts pursuant to Rules 12.1 and 23.1 of the Rules of the DIFC Courts (RDC), alongside applications to stay the proceedings and seek permission to appeal.
The Court of First Instance dismissed these applications entirely. In doing so, H.E. Justice Shamlan Al Sawalehi reaffirmed a core tenet of DIFC arbitration law: the 'Banyan Tree' doctrine. Originating from earlier landmark rulings, this doctrine establishes that the DIFC Courts possess the jurisdiction—and the mandate—to grant interim protective relief in support of arbitration, even when the strict geographic seat of the arbitration is contested or lies outside the immediate physical boundaries of the financial centre. The Defendants argued that the transition from the DIFC-LCIA to DIAC somehow severed the DIFC Court's nexus to the dispute. The Court rejected this formalistic approach. The arbitration agreement remained valid; it was merely linguistically outdated. The DIFC Court’s role is to act as a conduit and a protector of the parties' original intent to arbitrate, not to allow institutional restructuring to become a loophole for forum shopping.
In my view, the jurisdiction conferred by Article 22 of the Court Law is well established.
This assertion of established jurisdiction reflects a mature court confident in its statutory boundaries. The DIFC Courts have consistently held that their supportive jurisdiction under Article 22 (and Article 32 of the DIFC Arbitration Law) is not contingent upon a final determination of the arbitral tribunal's jurisdiction. It is a parallel, protective power designed to prevent the frustration of the arbitral process while the tribunal constitutes itself and determines its own competence under the principle of Kompetenz-Kompetenz. By enjoining the English High Court proceedings, the DIFC Court was not usurping the tribunal's role; it was preserving the status quo so that the tribunal could eventually fulfill its role.
However, the deployment of an ex parte anti-suit injunction is a draconian remedy, and the DIFC Courts balance this aggressive protectionism with stringent procedural safeguards. The most critical of these safeguards is the duty of full and frank disclosure. When a party approaches the court without notice to its opponent, it assumes a heavy burden to act as the absent party's advocate, disclosing all material facts and potential defenses that might weigh against the granting of the injunction. Failure to discharge this duty can lead to the immediate discharge of the injunction, regardless of the underlying merits of the claim.
The Defendants seized upon this requirement, alleging that Nashrah had materially breached its duty during the 20 January 2025 hearing. They contended that Nashrah failed to disclose crucial nuances regarding the nature of the relief sought—specifically, that it was allegedly seeking a permanent injunction disguised as an interim measure. When the matter escalated to the Court of Appeal, the Defendants formalized this grievance, with Ground 12 alleging that “The Court erred in failing to consider the Respondent’s breach of full and frank disclosure.”
The appellate review of this ground by H.E. Chief Justice Wayne Martin provides a critical lens into how the DIFC Courts evaluate procedural fairness in high-stakes arbitration support. The Chief Justice refused permission to appeal on Ground 12. This refusal aligns perfectly with the strict, yet pragmatic, approach to disclosure established in cases such as ARB-009-2019: ARB 009/2019 Ocie v Ortensia. In DIFC jurisprudence, the duty of full and frank disclosure is not a trap for the unwary applicant, nor is it a mechanism for defendants to litigate minor omissions or immaterial discrepancies. The court assesses whether the non-disclosure was material to the judge's decision to grant the ex parte relief. H.E. Justice Shamlan Al Sawalehi had already determined at the return date hearing that no procedural irregularity or breach of duty had occurred. The Court of Appeal, respecting the first-instance judge's assessment of the ex parte dynamic, found no real prospect of success in challenging that specific finding.
Yet, the Court of Appeal did not simply rubber-stamp the lower court's decision. Chief Justice Wayne Martin granted permission to appeal on several other grounds, including those relating to the precise scope of the order, the definition of a consumer contract within the context of the dispute, and the fundamental mechanics of the court's jurisdiction to grant the anti-suit injunction under these specific contractual circumstances. This bifurcated appellate outcome—refusing the disclosure challenge while permitting scrutiny of the jurisdictional mechanics—illustrates the sophisticated balance the DIFC Courts strike. They will aggressively protect the arbitration agreement from foreign interference, but they will subject the legal mechanics of that protection to rigorous appellate review.
Furthermore, the Court of Appeal imposed a significant financial condition on the Appellants. As a condition of the grant of permission to appeal, the Appellants were ordered to pay USD 80,000 into the Court. This requirement, rooted in the court's power to manage appeals and secure costs, serves as a practical deterrent against tactical delays. It ensures that while the appellate avenues remain open for legitimate legal grievances regarding the scope of an anti-suit injunction, the process cannot be utilized merely to bleed the opposing party of resources while the underlying arbitration remains stalled.
The interplay between the Court of First Instance and the Court of Appeal in Nashrah v Najem ultimately reinforces a coherent jurisprudential narrative. When faced with a party attempting to exploit the abolition of the DIFC-LCIA to escape an arbitration agreement via foreign litigation, the DIFC Court will intervene decisively. The statutory framework, particularly Article 22, provides the necessary ammunition. The historical 'Banyan Tree' doctrine provides the strategic justification, confirming the court's role as a supportive conduit rather than a passive observer. Concurrently, the rigorous enforcement of procedural norms—such as the duty of full and frank disclosure and the imposition of financial conditions on appeals—ensures that this protective power is exercised judiciously. The resulting legal landscape is one where arbitration agreements are fiercely defended, but the weapons used to defend them are subject to strict, continuous judicial calibration.
What Does This Mean for Practitioners and Enforcement?
The issuance of an anti-suit injunction against active proceedings in the English High Court signals a muscular approach by the DIFC Courts in defending the sanctity of arbitration agreements. Practitioners advising clients on cross-border disputes must recognize that the DIFC will not defer to foreign litigation simply because the competing forum is a prominent common law jurisdiction. When a party attempts to bypass an agreed arbitral mechanism, the DIFC Court will deploy its injunctive powers to halt the breach, provided the applicant moves swiftly and adheres strictly to procedural mandates.
The foundation of this intervention rests on the court's statutory authority to support arbitration, regardless of whether the tribunal has been fully constituted. H.E. Justice Shamlan Al Sawalehi anchored the initial relief firmly within the court's interim jurisdiction under Article 22 of the DIFC Court Law. This statutory gateway allows the court to issue protective measures to preserve the status quo and prevent parallel litigation from rendering the arbitration agreement entirely obsolete. The urgency of the claimant's application necessitated immediate action, leading to the initial ex parte order.
On 20 January 2025, the Claimant obtained an ex parte interim anti-suit injunction issued by this Court restraining the Defendants from continuing proceedings in the English High Court in alleged breach of an arbitration agreement.
Securing such relief ex parte is notoriously perilous. The applicant bears a heavy, non-delegable burden to provide full and frank disclosure. This duty requires presenting not only the facts that support the application but also any arguments or defenses the absent respondent might reasonably raise. Failure to meet this standard is the most common, and often the most fatal, ground for discharging an ex parte injunction on the return date. In Nashrah v Najem, the defendants inevitably attacked the procedural integrity of the initial application, hoping to unravel the injunction on technical disclosure grounds rather than defending their breach of the arbitration clause.
Finally, I am not satisfied that any procedural irregularity or breach of duty occurred in relation to the ex parte application.
Justice Al Sawalehi’s dismissal of the procedural challenge confirms that while the duty of disclosure is strict, it is not a weapon for respondents to wield frivolously. The court will look to the substance of the disclosure rather than entertaining hyper-technical complaints designed to obscure the underlying breach. For litigators, the lesson is twofold: applicants must meticulously document their disclosure efforts in their skeleton arguments and affidavits, and respondents must ensure that any challenge to that disclosure is grounded in material omissions that would have genuinely altered the judge's initial assessment of the balance of convenience.
The defendants' strategy extended far beyond attacking the ex parte procedure. They launched a multi-front assault, filing applications to discharge the injunction, challenge the court's jurisdiction, and stay the proceedings entirely. This scattergun approach is a hallmark of procedural obstruction, a tactic the DIFC Courts have increasingly scrutinized and penalized. Similar to the dynamics observed in ARB-027-2024: ARB 027/2024 Nalani v Netty, where appellate mechanisms were weaponized to delay enforcement, the defendants in Nashrah sought to paralyze the arbitral process through a barrage of parallel court applications.
The jurisdictional challenge was particularly pointed. The defendants filed their application challenging the jurisdiction of the DIFC Courts pursuant to Rule 12.1 and Rule 23.1 of the Rules of the DIFC Courts (RDC). The core of their argument hinged on the legacy nature of the arbitration clause, which referenced the now-abolished DIFC-LCIA rules. Since the issuance of Decree No. 34 of 2021, which transferred DIFC-LCIA assets and operations to the Dubai International Arbitration Centre (DIAC), recalcitrant parties have frequently cited the redundancy of the DIFC-LCIA rules as a pretext to abandon arbitration entirely and litigate in their preferred foreign forums.
The Respondent also rejects the Applicants’ jurisdictional objections, noting that the arbitration clause referred disputes to DIFC-LCIA arbitration, and that the DIFC Courts had a sufficient nexus to entertain interim relief under Article 32.
The court's rejection of this jurisdictional objection provides critical clarity for practitioners dealing with legacy contracts. The abolition of the DIFC-LCIA does not render arbitration agreements void, nor does it strip the DIFC Courts of their supervisory or supportive jurisdiction. The reference to DIFC-LCIA arbitration establishes a sufficient nexus for the DIFC Court to intervene under Article 32 of the Arbitration Law, ensuring that the transition between arbitral institutions does not create a vacuum in which parties can breach their agreements with impunity. The DIFC Court will enforce the parties' fundamental agreement to arbitrate, even if the specific institutional machinery originally selected requires statutory substitution.
Furthermore, the defendants attempted to attack the injunction by arguing that the court failed to require a cross-undertaking in damages from the claimant. A cross-undertaking is standard practice in most forms of injunctive relief, such as freezing orders, designed to compensate the respondent if it is later determined that the injunction should not have been granted. However, the requirement is not absolute in the context of anti-suit injunctions, and the court retains broad discretion based on the specific circumstances of the case and the nature of the right being protected.
With respect to the alleged failure to require a cross-undertaking in damages (Ground 3), the Respondent notes that the Court exercised its discretion judicially, taking into account the balance of convenience and the context of the relief.
By upholding the injunction without a rigid insistence on a cross-undertaking, the court prioritized the preservation of the arbitral process over theoretical financial risks to the defendants. The balance of convenience heavily favored halting the English High Court proceedings, which were actively undermining the agreed dispute resolution mechanism and forcing the claimant to incur costs in a non-contractual forum. Practitioners seeking anti-suit injunctions should always be prepared to offer a cross-undertaking to fortify their application, but they can also forcefully argue that the unique context of protecting a valid arbitration agreement may justify a departure from the strict requirement, particularly where the breach is clear and the respondent's alleged damages are entirely speculative.
The financial consequences of the defendants' failed applications were swift and punitive. Justice Al Sawalehi did not merely dismiss the challenges; he imposed costs on the standard basis, requiring a rapid summary assessment to prevent further delay.
The Defendants shall pay the Claimant’s costs of the Applications on the standard basis. A statement of costs, not exceeding three pages, shall be submitted within five working days.
This costs order serves as a potent deterrent against filing unmeritorious applications designed solely to complicate the proceedings. By demanding a concise, three-page statement of costs within a tight five-day window, the court ensured that the financial penalty would be quantified and enforced rapidly, preventing the costs assessment itself from becoming another protracted battleground.
The appellate phase of the dispute introduced a different set of procedural hurdles, highlighting the strict timelines governing the DIFC Courts and the pragmatic approach of the appellate bench. Following the dismissal of their applications in June 2025, the defendants sought permission to appeal. However, they missed the filing deadline, necessitating an application for an extension of time (EOT) before H.E. Chief Justice Wayne Martin.
The defendants argued that their delay was caused by a mistaken belief that the application for permission to appeal an earlier order would automatically cover the subsequent dismissal of their jurisdictional objection. Such procedural missteps are common in complex, multi-application litigation, where overlapping orders and rolling judgments can create confusion regarding precise appellate deadlines under RDC 44.13.
In these circumstances it is in the interests of justice to extend the time to enable the Permission to Appeal Application to be considered.
Chief Justice Martin’s decision to grant the EOT reflects a balanced approach to appellate procedure. While the RDC timelines are strict, the court will not use them as a guillotine where the delay is minimal—in this case, approximately four weeks—and the opposing party suffers no material prejudice arising from the delay. The claimant attempted to argue that the delay caused prejudice by prolonging the uncertainty over jurisdiction. However, the Chief Justice dismissed this argument, noting that such prejudice exists in every case where an EOT is granted and was not significant enough to outweigh the interests of justice in hearing the appeal on its merits, especially since the jurisdictional fight was already active in a related appeal.
The appellate order also demonstrates the court's intense focus on judicial efficiency. Chief Justice Martin granted permission to appeal on three grounds that were substantively identical to grounds already permitted in a related appeal (CA-004-2025). To prevent duplication of effort and unnecessary costs, he ordered that the appeals be heard together, with a single hearing bundle and single skeleton arguments. This consolidation is a vital tool for managing complex commercial disputes, ensuring that related issues are resolved comprehensively rather than piecemeal.
For practitioners, the trajectory of Nashrah v Najem provides a comprehensive roadmap for navigating interim relief and jurisdictional challenges in the DIFC. First, the court is highly receptive to applications for anti-suit injunctions when foreign proceedings threaten the integrity of an arbitration agreement. The willingness to issue such relief ex parte, and to maintain it against proceedings in a major jurisdiction like the English High Court, underscores the DIFC's commitment to its role as a supportive supervisory seat.
Second, the presence of a legacy DIFC-LCIA arbitration clause is not a fatal defect. The court will interpret such clauses purposively, finding sufficient nexus to exercise its interim jurisdiction under Article 32. Parties attempting to use the abolition of the DIFC-LCIA as an excuse to litigate elsewhere will find their efforts blocked and penalized with adverse costs orders.
Finally, while the court demands strict compliance with procedural duties—such as full and frank disclosure—it will not allow respondents to weaponize these duties through hyper-technical challenges. The focus remains on the substantive justice of the case and the preservation of the parties' agreed dispute resolution mechanism. By systematically dismantling the defendants' procedural obstructions, the DIFC Court has reinforced its reputation as a robust and pragmatic forum for international commercial arbitration.
What Issues Remain Unresolved in the Ongoing Appeal?
The appellate phase of Nashrah v Najem forces the DIFC Court of Appeal to confront the outer boundaries of its injunctive powers, testing the delicate balance between protecting arbitral integrity and respecting the jurisdiction of foreign courts. The pending appeal leaves open questions regarding the scope of anti-suit injunctions and procedural fairness, particularly when such draconian remedies are deployed ex parte to neutralize parallel proceedings in a coordinate jurisdiction like the English High Court. As the litigation advances toward a consolidated appellate hearing, the DIFC Courts must resolve whether the aggressive protective measures granted at first instance overstepped the bounds of international comity and procedural equity.
The procedural history of the dispute reveals a high-stakes game of jurisdictional brinkmanship. The Appellants, comprising the estate of the late Mr. Najem and Mr. Nex, had actively engaged the English High Court, signaling their intent to challenge the jurisdiction of the arbitral tribunal. The timeline of these competing maneuvers is critical to understanding the appellate scrutiny now being applied. Chief Justice Wayne Martin, in his 30 July 2025 order granting partial permission to appeal, meticulously documented the sequence of events that precipitated the DIFC Court's intervention:
On 15 January 2025 the Appellants applied for an injunction in the English proceedings restraining the Respondent from prosecuting the arbitration proceedings. The hearing of the Application for the Anti-Arbitration Injunction (“AAI”) was listed for 21 January 2025.
Faced with the imminent threat of an English Anti-Arbitration Injunction that would have paralyzed the Dubai-based proceedings, the Respondent executed a preemptive strike in the DIFC Courts. The timing and ex parte nature of this strike form the crux of the procedural fairness debate that the Court of Appeal must now adjudicate:
The day before that hearing was to occur, the Respondent commenced proceedings in this Court seeking an anti-suit injunction restraining the Appellants from prosecuting the English proceedings and applied for an interim injunction to that effect without notice to the Appellants.
By securing the ex parte interim injunction Order on 20 January 2025, the Respondent effectively short-circuited the English High Court's ability to hear the AAI application. While the DIFC Court of First Instance justified this intervention as necessary to uphold the arbitration agreement, the Appellants argue that the ex parte process deprived them of procedural fairness and that the Respondent failed in its duty of full and frank disclosure. The Court of Appeal will need to address the specific grounds of appeal granted by Chief Justice Wayne Martin, which encompass not only the substantive jurisdiction of the DIFC Court to issue the injunction but also the procedural mechanics of how it was obtained.
The appellate review is further complicated by a procedural misstep on the part of the Appellants, which necessitated a subsequent application to the Court of Appeal. On 12 August 2025, the Appellants filed an application for an extension of time (the EOT Application) to appeal the specific order dismissing their objection to jurisdiction. Chief Justice Martin's handling of this application illustrates the DIFC Court's pragmatic approach to procedural defects when substantive justice is at stake. The Chief Justice noted the genesis of the delay:
The EOT Application is brought on the ground that the Applicants were under the mistaken belief that the application for permission to appeal from the orders earlier made by the Judge at first instance for reasons published on 19 February 2025 would, if granted, confer permission to appeal from the Judge’s orders dismissing the objection to jurisdiction.
The Respondent fiercely opposed the EOT Application, arguing that granting the extension would cause prejudice by disrupting their preparation for the impending substantive appeal in CA-004-2025. The Respondent attempted to weaponize the procedural delay to secure a final victory on the jurisdictional front. However, Chief Justice Martin systematically dismantled the Respondent's claims of prejudice, focusing instead on the material realities of the litigation. The Chief Justice observed that the period of delay is not substantial, amounting to merely four weeks, and firmly rejected the notion that the Respondent had suffered any actionable harm:
The Respondent has not established any material prejudice arising from the delay and does not contend that it changed its position in reliance upon an assumption that no appeal would be brought - it being well aware that the issue of the court’s jurisdiction was contested in CA-004-2025.
By granting the extension and reserving the costs of the EOT Application to the Court of Appeal, the Chief Justice ensured that the appellate bench would have the opportunity to review the jurisdictional architecture of the case in its entirety, rather than allowing a technical default to insulate the first instance decision from scrutiny.
Beyond the procedural maneuvering, the appellate proceedings impose significant financial conditions that reflect the Court's risk allocation strategy. In his 30 July 2025 order, Chief Justice Martin made the condition of the grant of permission contingent upon the Appellants paying USD 80,000 into the Court. This requirement is not merely an administrative hurdle; it is a substantive mechanism designed to balance the equities between the parties. The requirement for security (USD 80,000) highlights the Court's focus on protecting the Claimant from potential losses incurred during the appellate process. The Appellants themselves invoked the principles underlying such security requirements when challenging the initial ex parte injunction, pointing to the Rules of the DIFC Courts (RDC) governing interim remedies:
The Appellants also refer to Rule 25.25 of the Rules of the DIFC Courts (“RDC”) which includes the following: “Where the applicant for an interim remedy is not able to show sufficient assets within the jurisdiction of the court to provide substance to the undertaking given, he may be required to reinforce his undertaking by providing security.”
The imposition of the USD 80,000 payment into court serves a dual purpose: it filters out frivolous appellate challenges by requiring a tangible financial commitment from the Appellants, while simultaneously creating a protected fund that can be drawn upon if the appeal fails and the Respondent is awarded costs. This pragmatic financial engineering underscores the DIFC Court's sophisticated approach to managing complex, multi-jurisdictional disputes where asset dissipation and cost recovery are persistent concerns.
At the heart of the substantive appeal lies the unresolved tension surrounding the abolition of the DIFC-LCIA Arbitration Centre and the subsequent transfer of its caseload to the Dubai International Arbitration Centre (DIAC). The Appellants' core argument is that the arbitration agreement, which explicitly referenced the now-defunct DIFC-LCIA rules, cannot simply be rewritten by judicial fiat to compel arbitration under DIAC rules. The first instance judge dismissed this concern, adopting a highly commercial and purposive interpretation of the arbitration agreement. The Court of Appeal will now scrutinize the precise reasoning employed at first instance:
The Judge made observations on this topic in the following passage of his reasons: “I am also satisfied that a valid arbitration agreement exists between the parties. DIAC accepted jurisdiction on a prima-facie basis and registered the arbitration initiated by the Claimant, and so I see no reason why the DIFC Court would act contrary to this decision; nonetheless, the move from DIFC-LCIA to DIAC would not render DIFC-LCIA agreement invalid, but merely linguistically outdated.
Characterizing the abolition of an arbitral institution and the substitution of an entirely different set of procedural rules as rendering an agreement "merely linguistically outdated" is a bold doctrinal stance. The Appellants contend that this interpretation fundamentally alters the bargain struck between the parties, imposing a procedural regime to which they never consented. The Court of Appeal's determination on this issue will have profound implications for hundreds of legacy contracts governed by DIFC law that still contain DIFC-LCIA arbitration clauses. If the appellate bench upholds the first instance reasoning, it will solidify the DIFC Court's protective stance toward DIAC's assumption of jurisdiction. Conversely, if the Court of Appeal finds that the institutional transition invalidates the specific consent to arbitrate, the jurisdictional foundation for the anti-suit injunction will collapse entirely.
This doctrinal friction is not occurring in a vacuum. The DIFC Courts have increasingly been called upon to navigate complex jurisdictional overlaps, as seen in parallel disputes such as ARB-024-2025: ARB 024/2025 Olympio v Olwin, where the limits of the Court's authority to stay or enjoin proceedings were fiercely contested. In Nashrah v Najem, the stakes are arguably higher because the competing forum is the English High Court, a jurisdiction with its own robust tradition of issuing anti-suit and anti-arbitration injunctions. The final outcome will further define the limits of the DIFC Court's intervention in parallel foreign proceedings, establishing a critical precedent for how aggressively the DIFC judiciary will deploy its equitable powers to shield Dubai-seated arbitrations from foreign judicial interference.
Ultimately, the consolidated appeals in CA-004-2025 will require the appellate bench to synthesize the competing imperatives of procedural fairness, contractual stricture, and pro-arbitration policy. The Appellants must overcome the heavy burden of demonstrating that the first instance judge erred in law or principle when granting the ex parte injunction and dismissing the jurisdictional challenge. Meanwhile, the Respondent must defend a highly aggressive litigation strategy that relied on preemptive, without-notice applications to outmaneuver the English courts. As the parties prepare their single skeleton arguments for the upcoming hearing, the international arbitration community watches closely. The resulting judgment will not only resolve the immediate fate of the Najem estate's jurisdictional challenge but will also calibrate the exact threshold at which the DIFC Courts will issue anti-suit injunctions in the shadow of redundant arbitration rules.