Claim No: CFI 008/2015
THE DUBAI INTERNATIONAL FINANCIAL CENTRE
COURTS
BETWEEN
BOCIMAR INTERNATIONAL N.V.
Claimant
and
EMIRATES TRADING AGENCY LLC
Defendant
JUDGMENT OF JUSTICE SIR JOHN CHADWICK
Transcribed from the oral judgment handed down on 28 January 2016, revised and approved by the
Judge
2. In support of its claim for judgment to be entered in this Court, the Claimant, Bocimar International N.V., a Belgian company, relied on provisions in Article 7(6) of the
judicial authority law
“25.1 The Court may grant the following interim remedies:
…
(6) an order (referred to as a ‘freezing order’)
(a) restraining a party from removing from the jurisdiction assets located there; or
(b) restraining a party from dealing with any assets whether located within the jurisdiction or not;
(7) an order directing a party to provide information about the location of relevant property or assets or to provide relevant information about relevant property or assets which are or may be the subject of an application for a freezing order;
…
25.6 An order for an interim remedy may be made at any time, including:
…
(2) after judgment has been given.”
Those rules give effect to Article 32(b) of the DIFC Courts Law, which is in these terms:
“32. Powers
The DIFC Courts has the power to make orders and give directions as to the conduct of any proceedings before the DIFC Courts that it considers appropriate, including:
…
(b) injunctions, including requiring an act to be done;”
In the present case – as usual in circumstances where the applicant fears that the respondent may dissipate or deal with its assets in a manner calculated to frustrate the order sought – the application for a freezing injunction has been made without notice to the Defendant and has been heard in private. That procedure is in accordance with RDC 25.11 and 25.12.
7. The question for the Court on this application is whether, in all the circumstances, it is satisfied that it is appropriate to make a freezing order in the terms sought (or at all). Whether it is appropriate to make such an order is the test under DIFC Law: in that “appropriate” rather than “just convenient” (the words used to describe the test under equivalent provisions in the law(1) This is a case in which the Claimant has a judgment debt from this Court which (primafacie, at least) it is entitled to enforce against the assets of the Defendant wherever they may be found; provided, of course, that the law of the place in which those assets are situated permits or enables enforcement of the DIFC Courts judgment. This is not a case in which the Claimant has to establish that it has what is often described as “a good arguable case” to the substantive relief that it sought against the Defendant in the proceedings. It has obtained judgment in this Court in respect of the relief sought in the proceedings: that judgment was entered by this Court by consent on 26 January 2016; the validity of that judgment is not in issue in this Court. The starting point, from which the question “is it appropriate to make a freezing order”, is that the Claimant is a judgment creditor: it is entitled to ask for the assistance of this Court in enabling that judgment to be enforced against assets which are or may be available to satisfy it.
(2) The evidence before this Court as set out in a draft affidavit which has been put before me – and which is to be sworn by Dr Mark Hoyle, a partner in the firm instructed by the Claimant as its legal representatives - establishes that the Defendant has assets within the Emirate of Dubai: but does not establish - or even suggest - that the Defendant has assets within the jurisdiction of the DIFC Courts.
(3) This Court does not, itself, have jurisdiction to enforce its judgments over assets which are not within the DIFC - notwithstanding that those assets may be within the Emirate of Dubai - but Article 7(2) of the JAL (under the heading “Execution”) provides, so far as material in the present context, that:
“Where the subject matter of execution is situated outside the DIFC, the judgments, decisions and orders rendered by the Courts and the Arbitral Awards ratified by the Courts shall be executed by the competent entity having jurisdiction outside DIFC in accordance with the procedure and rules adopted by such entities in this regard, as well as with any agreements or memoranda of understanding between the Courts and these entities. Such execution shall be subject to the following conditions:
(a) The judgment, decision, order or ratified
Arbitral Award
(b) The judgment, decision, order or ratified Arbitral Award is translated into the official language of the entity through which execution is carried out;
(c) The Courts affix the executory formula on the judgment, decision, order or ratified Arbitral Award.”
As between the DIFC Courts and the civil courts in the Emirate of Dubai, there is a Protocol of Enforcement, signed on 23 April 2009, which provides for reciprocal enforcement procedures of the judgments of those two courts. Article 3.1 provides for the enforcement outside the DIFC of judgments issued by the DIFC Courts: Article 3.2 provides for the enforcement within the DIFC of orders issued by the Dubai civil courts. The preamble to the Protocol emphasises that there is agreement between the Dubai civil courts and the DIFC Courts for a need for full judicial cooperation; and for the principle that cooperation will be sustained by facilitating and establishing mutual enforcement procedures. In my view there is no reason to think that the Dubai civil courts would not give effect to Article 7(2) of the JAL and Article 3.1 of the Protocol and take the steps needed to enforce the judgment entered on 26 January 2016 against assets in the Emirate of Dubai (but outside the DIFC).
(4) The Claimant asserts that there are strong grounds to support its belief that if no order is made restraining the Defendant from dealing with or disposing of assets in the Emirate of Dubai - that is to say, in particular, assets within the Emirate but not within the DIFC - the Defendant is likely to take steps to dissipate those assets or otherwise to put them beyond the reach of recovery through whatever process of enforcement by the Dubai civil courts may be available to the Claimant.
9. In addressing the question whether it can be expected that the Dubai civil courts would give effect to Article 7(2) of the JAL and Article 3.1 of the Protocol and take the steps needed to enforce the judgment entered on 26 January 2016 against assets in the Emirate of Dubai (but outside the DIFC), I have had regard to observations of H.E. Justice Ali Al Madhani at paragraphs 44 and 52 of his judgment inDNB Bank ASA v Gulf Eyadah Corporation & anor,CFI-043-2014. Those observations were made in a section of his judgment (paragraphs 44 to 52) in which the judge was addressing a challenge to the jurisdiction of this Court to recognise an order made in the Commercial Court in London; on the ground that to do so would be an abuse of process in circumstances where (it was said) the purpose of seeking recognition of the Commercial Court judgment was to use this Court as a “conduit” or device to avoid the need for filing an application for recognition and enforcement before the Dubai civil courts. The judge rejected that argument; holding at paragraph 44 that the submissions advanced by both parties in that regard were misconceived. He said this:“44.It is my view that both Parties’ arguments in this regard are misconceived. Unlike the situation in cases where an Arbitral Award is brought for recognition and then for enforcement, Recognised Foreign Judgments or Orders by the DIFC Courts cannot be said to be referred to the
Dubai Courts
And, after referring to Articles 7(2) and 7(6) of the JAL, he concluded at paragraph 52 “although this court has jurisdiction to recognise and enforce foreign judgments and that power shall be within the DIFC and cannot extend beyond the DIFC, this court has no power to refer Recognised Foreign Judgments to Dubai courts for execution.”
10. The conclusion reached by H.E. Ali Al Madhani at paragraphs 44 and 52 of his judgment in the DNB case has been the subject of an appeal to the DIFC Courts of Appeal. I understand that that appeal was heard in December 2015; and that the judgment of the Court of Appeal has not yet been delivered. In those circumstances, it would be inappropriate for me to express any view on the question whether the judge was correct to reach the conclusion which he expressed in those paragraphs; and I do not do so. But, as it seems to me, it would be unnecessary for me to address that question in the present context. Assuming that H.E. Ali Al Madhani was correct in the conclusion which he reached in those paragraphs – that this Court has no power to refer Recognised Foreign Judgments to Dubai courts for execution – I am satisfied that that conclusion provides no basis for the view that the Claimant in the present case will be unable to enforce the order of this Court made on 26 January 2016 through the Dubai courts in reliance on Article 7(2) of the JAL and the Protocol.11. “Recognised Foreign Judgments” is not a term which is defined in the JAL; nor, elsewhere in the relevant legislation, so far as I am aware. It is necessary, therefore, to identify to what H.E. Justice Ali Al Madhani was referring when he used that term in paragraphs 44 and 52 of his judgment in theDNBIn my view it is clear that he used that term to refer to judgments rendered outside the DIFC – that is to say, judgments within Article 7(6) of the JAL – and not to refer to judgments of the DIFC Courts. A judgment rendered by the DIFC Courts is not aptly described as a Recognised Foreign Judgment: it is a judgment of a court in the Emirate of Dubai and not a judgment of a “foreign court” for the purposes of the JAL: the judge cannot be taken to have thought that it was.12. The Claimant will not be seeking to enforce a Recognised Foreign Judgment through the Dubai civil courts. In the present context, the “Recognised Foreign Judgments” are the July 2014 orders. Those are not the judgments which the Claimant will be seeking to enforce through the Dubai civil courts. The Claimant will be seeking to enforce the judgment of the DIFC Courts – which, as I have said, is not a judgment which H.E Justice Ali Al Madhani can be taken to have had in mind when referring to Recognised Foreign Judgments - and for those purposes the Claimant does not need to rely on Article 7(6) of the JAL. It can rely on Article 7(2) of that Law and on the Protocol. In that context, I would respectfully adopt the observations of Justice Sir Richard Field, when giving leave to appeal in the DNB case, at paragraphs 21 and 22 of the schedule to his order of 9 September 2015.13. I turn, therefore, to the question whether the Claimant has established that there are strong grounds for its belief that, if no order is made restraining the Defendant from dealing with or disposing of assets in the Emirate of Dubai - that is to say, in particular, assets within the Emirate but not within the DIFC - the Defendant is likely to take steps to dissipate those assets or otherwise to put them beyond the reach of recovery through whatever process of enforcement by the Dubai civil courts may be available to the Claimant.14. The relevant legal principle in determining whether for the purposes of granting or maintaining a freezing order a claimant has shown a sufficient risk of dissipation is conveniently stated at paragraph 49 of the judgment of Mr Justice Flaux, sitting in the Commercial Court in London inCongentra AG v Sixteen Thirteen Marine SA (“the Nicholas M”),[2008] EWHC 1615 (Comm):“…the relevant legal principle in determining whether for the purpose of granting or maintaining a freezing order, a claimant has shown a sufficient risk of dissipation is that the claimant will satisfy that burden if it can show that;
(i) there is a real risk that a judgment or award will go unsatisfied in the sense of a real risk that unless restrained by injunction the defendant will dissipate or dispose of his assets other than in the ordinary course of business or
(ii) that unless the defendant is restrained by injunction, assets are likely to be dealt with in such a way as to make enforcement of any award or judgment more difficult unless those dealings can be justified for normal and proper business purposes”.
Mr Justice Flaux went on at paragraph 50 of his judgment, to point out that the claimant asserted in that case that the defendant’s conduct in the past in advancing a case they knew to be unsustainable could be described as demonstrating “an unacceptably low standard of commercial morality” and that that demonstrated a real risk that the owners would take steps to dispose of their assets to avoid satisfying the award in the favour of the charterers, and he reached the conclusion that that submission had been made good. At paragraph 53, after setting out matters on which he relied, he said this:
“…those matters are significant in the context of assessing the risk of dissipation. In my judgment the charterers can show a good arguable case for the purposes of discharging the burden of showing a real risk of dissipation that what has happened in New York reveals that these owners are the sort of people who will stop at nothing to frustrate the charterers from making any substantial recovery by dissipating their assets, unless restrained by the freezing order.”
15. Observations to the same effect can be found in judgments of this Court in ARB-002-2015. Those being arbitration proceedings, it would be inappropriate to identify the parties or to indicate the nature of the claims; but it is appropriate to refer to the statements of principle by judges of this Court addressing a submission of “real risk of dissipation” in circumstances in which past conduct was relied upon. In my own judgment delivered on 9 September 2015, when granting a freezing orderex parteI referred to the decision of Mr Justice Flaux in theNicholas Mand to the passages in paragraphs 49 and 53 of that judgment which I have already cited. I went on to say this, in paragraph 18:“That factor may perhaps be colloquially referred to as the “has shown form” factor: the person against whom the injunction is sought has shown by past conduct that they are likely to stop at nothing to frustrate the enforcement of an arbitration award which has been made against them…”
And in his judgment delivered on 8 December 2015, on theinter-partiesapplication to continue the freezing order, Justice Sir David Steel said this at paragraph 51:
“There are a whole number of other points which were abandoned and which must have been known to be hopeless – the suggestion that the award had been suspended; the suggestion that the
Tribunal
Where those features are present, the court is entitled to reach the conclusion that a freezing order is appropriate because the defendants have shown by their past conduct that they will take whatever steps are open to them to frustrate the ability of the claimant to recover on the award or the judgment which it has obtained. I should stress that I am not talking of legitimate steps taken in pursuit of a client’s interest in litigation. I am talking about steps taken in circumstances where there was no proper justification in law or on the facts for advancing the arguments that were advanced or making the assertions that were made and where it can be demonstrated – or can be inferred from the subsequent abandonment of applications made on the basis of those arguments or those assertions without reason – that there was never any basis for a belief that they could properly be pursued.
16.The evidence upon which the Claimant relies is, as I have said, set out very fully in the draft affidavit of Dr Hoyle. Dr Hoyle has given to the Court an undertaking that this affidavit will be sworn in that form. I accept that undertaking and I proceed on the basis that what has been before me in draft will in due course be confirmed by a sworn affidavit.17. As a context for the allegations set out in that affidavit, it is important to have in mind that the July 2014 orders were made on the basis of arbitration awards rendered by distinguished arbitral panels rendered in December 2012, February 2013, March 2013 and May 2013. Dr Hoyle explains, at paragraph 98 of his affidavit, that there has never been a challenge to those awards - at least, never in the courts of England and Wales which was the seat of arbitration - and no such challenge has been made in these proceedings. He refers, quite properly, to objections taken in enforcement proceedings in India; but those are of no materiality in the context for this Court. Further, the July 2014 orders having been obtained, there has never been a challenge to those orders. They were never appealed in England; and no steps have ever been taken to set them aside. This, then, is a case in which some two years after the awards (which have not been challenged) were handed down and over 9 months after the July 2014 orders (which have not been challenged) had been made, the Claimant sought to enter judgment here. These proceedings were, as I have said, commenced in March 2015. They were met by an application challenging the jurisdiction of this Court.18. The proceedings for the determination of that application and the claim to enter judgment were strung out from April 2015, when the application was made, until 19 January 2016. On 19 January 2016, the legal representatives for the Defendant wrote in these terms so far as material:“We write further to recent exchanges with the
Registry
ETA hereby withdraws the application basis the DIFC Courts ruling…ETA therefore asks that the DIFC Courts accept this letter as confirmation that ETA has withdrawn the application…
We await the DIFC Courts’ order in due course.”
19. That was a letter sent some six days before a two day fixture was to be heard in this Court. The only reason given for a change of mind leading to the abandonment of the application challenging the jurisdiction of the Court was the reference to the DIFC Courts of First Instance ruling in theDNBBut that ruling had been given as long ago as July 2015, when judgment was issued; and I was shown a letter sent shortly thereafter in which the legal representatives of the Claimant had drawn the attention of the legal representatives of the Defendant to that judgment. So, if there were a good reason on the basis of theDNBjudgment not to proceed with the application that had been commenced in April 2015, that reason had emerged in July 2015. No explanation is given in the letter of 19 January 2016 why, between July 2015 and January 2016 the Defendant continued to pursue its application challenging jurisdiction; not only by maintaining that application but by taking a number of steps within it which led to and were intended to lead to the postponement of the hearing of the application and the claim.20. It is unnecessary to rehearse in detail the full history of the litigation which is set out in Dr Hoyle’s affidavit. His account is supported by the documentary material exhibited to that affidavit; and I accept it. It is enough to refer to three matters:(1) First, that there was a hearing fixed for the week commencing 6 September 2015. Dr Hoyle refers to that at paragraph 131 of his affidavit when he says on 14 July 2015 - and I interpose to point out that that was very shortly after the DNB judgment - the Registry wrote to the parties “…to take place in the week commencing 6 September 2015”. That hearing did not take place because the Defendant made an application for leave to adduce expert evidence. It was said the Defendant wasn’t ready. It was also said, contrary to the true position, that neither party was pushing for a hearing. The Claimant as it pointed out at the time in correspondence was anxious to have a hearing: unsurprisingly, given that it was then some two and a half years since the awards had been delivered. It was said on behalf of the Defendant that it was “obviously necessary” that expert evidence be served. No indication has ever been given as to the nature of that expert evidence: save that it might go to the question of service. What that evidence would have shown, in substance, has never been revealed. As a result of that application, the hearing was postponed: the
Chief Justice
(2) Subsequently, the Registry sought to re-fix the hearing: that attempt was met by an application by the Defendant for an adjournment, based on the supposed need to make an application to the Commercial Court in London which was due to be heard in December. It was said that the “complexity of the issues and particularly the significance of the English High Court orders pose a risk of conflict” and that “the English High Court application decision would be paramount as to how the DIFC Courts proceed in any event”. It was said further, as Dr Hoyle points out in paragraph 150 of his affidavit, that the parties were currently listing an application for the English High Court “which will be of relevance and bring significance to the determination of the matters before the DIFC Courts”. In the event, the English High Court application was withdrawn shortly before it was due to be heard; and, again, was withdrawn without explanation.
(3) The Registry re-fixed the hearing of both claim and application for 25 and 26 January 2016. An attempt was made by the Defendant to vacate that hearing. It was made on the pretext that Dr Hoyle having moved from one firm to another and having failed (or so it was alleged) to serve the relevant notice of change of legal representatives, the Defendants’ legal representatives did not know with whom they could deal. The Court dismissed that application for an adjournment. It was shortly after that failed application that the Defendant finally accepted, in the letter of 19 January 2016, that the inevitable could no longer be postponed and that the time had come when the Court would hear and determine the substance of the application and the claim. The only inference that I can draw from the circumstances in which the application was withdrawn and the Defendant ceased to resist the claim is that the Defendant was not, and never had been, interested in a hearing on the merits: its interest had been in delaying the point at which it would be required to pay the Claimant what it owed. There is no reason to think that its desire to frustrate the Claimant’s right to be paid will have changed.
21. I have done no more than refer in outline to the very detailed criticisms in Dr Hoyle’s affidavit; but having read that affidavit and the relevant documents to which he refers therein, and having been taken through them at length at an oral hearing, I am satisfied that the Claimant is entitled to take the view that, in the course of pursing the Defendant’s various applications, allegations were made and statements were advanced in evidence by the legal representatives of the Defendant in their witness statements which are inconsistent with the true position at the time and that that must have been appreciated.22. In those circumstances, I have no hesitation in accepting that there are strong grounds for the belief that this Defendant, with the assistance of its legal representatives, has been prepared to adopt whatever tactical step was thought necessary to delay and defer resolution of this matter; and that it was prepared to do so because it was determined so far as possible to frustrate the ability of the Claimant to recover on the arbitration awards which had been handed down in 2012 and 2013.23. Those factors, to my mind, demonstrate at least to the standard of good arguable case that there is a real risk that if not restrained, this Defendant will do what it can to frustrate the execution of the judgment of this Court entered on 26 January 2016 by taking steps to dissipate or remove from the reach of the Claimant through proper judicial process in the Dubai civil courts those assets which it has in Emirate of Dubai (but not in the DIFC). In those circumstances I think it right and appropriate to grant the freezing order which the Claimant seeks.24. I have considered whether it is appropriate to include in that order the usual cross undertaking as to damages, and a provision for security to support that cross undertaking. In directing that a cross undertaking be given, but in determining that no security is needed, I place reliance on the observations of Mr Justice BurtonNomihold Securities Inc v Mobile Telesystems Finance SA[2011] EWHC 337 (Comm) at paragraph 24, where he said this:“I happen to believe that it is always appropriate to give a cross-undertaking in damages but that it would be most unusual to have to fortify such cross- undertaking, however poor or unwell-heeled the Claimant is, where it is owed a substantial sum of money under the judgment because there may be circumstances in which, albeit that a judgment debt is owed and is unpaid, the effects of a freezing order, particularly a worldwide freezing order, may be overly damaging and overly prejudicial and that even if, at the end of the day, the judgment is paid up, there may fall to be set off some damage which is shown to have flowed as a result of the inappropriate obtaining of the freezing order.”
This is a case where security for the Claimant’s cross-undertaking is, in effect, provided by the existence of a judgment debt of US$ 118 million. I can conceive of no circumstances in which, whatever damage may be suffered by the Defendant in the event that my freezing order is held to have been made wrongly, that damage will come anywhere close to the amount of the judgment debt that is owed in this case.
25. Accordingly, I make the freezing order in the terms of the draft which has been provided; and with the amendments discussed in this Court. The Order will be sealed and issued by the Court today.Issued by:
Natasha Bakirci
Assistant
Registrar
Date of Issue: 31 January 2016
At: 4pm