Claim No. CFI 098/2021
THE DUBAI INTERNATIONAL FINACIAL CENTRE
IN THE COURT OF FIRST INSTANCE
BETWEEN
AL BUHAIRA NATIONAL INSURANCE COMPANY
Claimant
and
HORIZON ENERGY LLC
Defendant
ORDER WITH REASONS OF JUSTICE ROGER GILES
| Hearing : | 4 April 2022 |
|---|---|
| Counsel : | Nicholas Craig QC instructed by Clyde & Co. for the Claimant; and Gregor Hogan instructed by Holman Fenwick Willian Middle East LLP for the Defendant. |
| Judgment : | 27 April 2022 |
UPON reviewing the Defendant’s application no. CFI-098-2021/1 dated 27 December 2021 disputing jurisdiction and seeking to have the Claim Form and its service set aside, alternatively seeking to have ABNIC’s claims struck out as an abuse of process (the“Application”)
AND UPON reviewing the Claimant’s evidence in answer to the Application dated 24 January 2022
AND UPON reviewing the Defendant’s evidence in reply dated 14 February 2022
AND UPON reviewing the Claimant and Defendant’s skeleton arguments dated 29 March 2022
AND UPON hearing Counsel for the Claimant and Counsel for the Defendant at a hearing on 4 April 2022
IT IS HEREBY ORDERED THAT:
1. The Application is dismissed.
2. The Defendant shall pay the Claimant’s costs of the Application assessed in the amount of AED 300,000.
Issued by:
Nour Hineidi
Registrar
Date of Issue: 27 April 2022
At: 10am
SCHEDULE OF REASONS
1. In June 2015 the Claimant, Al Buhaira National Insurance Company (“ABNIC”), insured the Defendant, Horizon Energy LLC (“Horizon”), and its subsidiaries and affiliates under a Marine Hull and Machinery Policy and a Marine Hull War Policy (the“Policies”) in respect of a number of vessels. The Policies were subsequently renewed, and were current from 10 June 2018 to 9 June 2019.
2. The vessels included the “BETA”, a tanker of 55,909 GT (the“Vessel”) owned by a Liberian incorporated subsidiary of Horizon, Al Buhaira International Shipping Incorporated (“ABIS”). Its insured value was US$70 million. In about December 2019, it was discovered by Horizon/ABIS that the Vessel was missing. On 18 November 2020 Horizon notified ABNIC that the Vessel had disappeared, and on 25 October 2021 it gave formal notice of a claim for its loss. Sufficiently for present purposes, it appears common ground now that from mid-May 2019 the Vessel has been located in Iran, as the “MAKRAN” in the service of the Iranian navy.
3. By a Claim Form issued on 11 November 2021, ABNIC claims declarations that the Policies are avoided ab initio on the ground of misrepresentations and that it is not liable to Horizon because the Policies are avoided; and in the alternative, a declaration that for a number of different reasons Horizon’s claim for its loss does not fall within the cover provided by the Policies.
4. This is Horizon’s application disputing jurisdiction and seeking to have the Claim Form and its service set aside, alternatively seeking to have ABNIC’s claims struck out as an abuse of process. No point is taken that Horizon is denying that the Court has jurisdiction, and at the same time asking that the Court exercise jurisdiction by striking the claims out.
Jurisdiction
5. ABNIC asserts jurisdiction under Article 5A(2) of the Judicial Authority Law, Dubai Law No 12 of 2004, which provides:
“(2) The Court of First Instance may hear and determine any civil or commercial claims or actions where the parties agree in writing to file such claim or action with it whether before or after the dispute arises, provided that such agreement is made pursuant to specific, clear and express provisions.“
6. The agreements on which ABNIC relies are the law and jurisdiction clauses in the Policies, in identical terms:
“This contract shall be governed by and construed in accordance with the English law and each party agrees to submit to the exclusive jurisdiction of the courts of the United Arab Emirates. The arbitration contract shall also be subject to the law and jurisdiction of the United Arab Emirates.“
7. It is common ground that ABNIC and Horizon did not enter into an arbitration agreement in or in relation to the Policies.
8. Jurisdictional choices in terms such as “Dubai courts“ and “courts of Dubai“, or “courts of the UAE” and “United Arab Emirates courts”, have been considered on a number of occasions. The most recent considerations were inGoel v Credit Suisse (Switzerland) Ltd [2021] DIFC CA 002 (26 April 2021) (“Goel”) (“courts of Dubai”) and Laabika v Ladu [2021] DIFC CA 008 (7 September 2021) (“Laabika”) (“courts of Dubai); “courts of the United Arab Emirates” was considered inIGPL v Standard Chartered Bank [2015] DIFC CA 004 (19 November 2015) (“IGPL”), and as later described it was held that it conferred jurisdiction on the DIFC Courts.
9. In Goel, the Court said that it is a constitutional fact that the courts of Dubai are created by the laws of the Emirate, and that “courts of Dubai” when used in a contract in its ordinary meaning, absent content and purpose pointing in a different direction, refers to all the courts of Dubai. The DIFC Courts are courts of Dubai, created by the laws of the Emirate, and it was said (at [91]) that “[t]he cases point to a default position in which the DIFC CFI is included within the terminology ‘the courts of Dubai’ along with the onshore courts”. It was held that, in construing the choice of court provision, there was no ambiguity suggesting that the parties intended to opt out of the jurisdiction of the CFI, albeit that they might be taken to have opted in to the jurisdiction of the onshore courts as well, and (at [98]) that “[t]he lack of ambiguity in the circumstances of this case was sufficient to treat the term ‘the DIFC Courts’ [sic: plainly, ‘the courts of Dubai’] as a specific, clear and express reposing of the relevant jurisdiction in the DIFC Courts, although it may also have covered the onshore courts“.
10. This approach was endorsed inLaabika. It was said that it was clear from Goel that the ordinary meaning of the term “the courts of Dubai“ is capable of meeting the requirement in Article 5A(2) for a specific, clear and express provision conferring jurisdiction on the CFI, and (at [42]):
“In this case there are no surrounding circumstances to support a construction of the term “the Courts of Dubai“ in the contract which would not apply the ordinary meaning, which includes the DIFC Courts. Consistently with Goel we hold that where the parties agreed to repose jurisdiction in the Courts of Dubai then, absent constructional indication to the country, whether from the text of the contract or surrounding circumstances, the term will be interpreted as a sufficiently specific, clear and express provision for the purposes of Article 5A(2) JAL to confer jurisdiction on the the DIFC CFI. …. Where a term is used that on its ordinary and unambiguous meaning applies to the DIFC Courts, the fact that it picks up the onshore courts as well does not negate its application to the DIFC Courts. Nor does it negate that application as specific, clear and express.”
11. This is equally applicable to a clause reposing jurisdiction in “the courts of the United Arab Emirates”. The DIFC Courts, as courts created by laws of the Emirate of Dubai, are courts of the Emirates together with all other courts created by laws of the respective Emirates. InIGPL, as noted above, “courts of the United Arab Emirates” was held to give jurisdiction to the DIFC Courts, the Court saying:
“[142] …. it cannot be maintained, as IGPL contends, that the DIFC Courts are ‘a creature of Dubai Law, not UAE Law’ and thus not a ‘court of the UAE’. Neither do we see any force in IGPL’s submission that the Dubai Courts are not courts of the UAE because they ‘apply Dubai Law, not UAE Law’. The Dubai Courts, and indeed the DIFC Courts, are free to apply UAE law if, upon the proper application of the rules of private international law, that is the governing law of the dispute.
[143] As a practical matter, it is more conceivable that the meaning of “courts of the UAE“
under the Agreement was intended to cover all courts located within the territory of the UAE. This includes all courts within Dubai, which in turn includes the DIFC Courts.“
12. In short, the agreements in the Policies on the jurisdiction of the courts of the United Arab Emirates (the“UAE”) in their ordinary meaning confer jurisdiction on the DIFC Courts, as courts of the UAE, and are specific, clear and express provisions in that respect, unless there is reason from their text or the surrounding circumstances to give them a different construction.
13. Horizon submitted that there was reason to give them a different construction, and that they should be understood as agreements to submit any disputes under the Policies to the Sharjah courts, alternatively to the onshore courts of the UAE meaning excluding both the DIFC Courts and the courts of the AGDM. The submission had two limbs.
14. The first limb of the submission began that in the cases in which “courts of Dubai” or such phrases had been held sufficient, there had been “a material and sufficient link between the parties/facts of the case and the DIFC”: for example, in Goel that at the time of contracting one of the parties had been a DIFC Licensed Establishment. It was then said that in the present case there was no substantive link between the Policies and the DIFC or even Dubai. Horizon was formally incorporated in Dubai, but had had a limited physical presence there and none in the DIFC, and its operations were managed from Sharjah; ABNIC’s head office was in Sharjah, and the evidence that it provided marine insurance services from its Dubai offices was (Horizon said but ABNIC contested) non-specific; all discussions and negotiations leading to entry into the Policies took place in Sharjah; the Vessel (self-evidently) was at no time in the DIFC, or Dubai, and had not docked or operated in Dubai waters. Rather, it was said, the substantive connection was with Sharjah.
15. Attention should not be confined to the Vessel – many more vessels were insured under the Policies. But I do not find the submission persuasive to a construction confining the agreement to the jurisdiction of either the Sharjah courts or the onshore courts of the UAE.
16. A link to the DIFC is not necessary for an agreement as referred to in Article 5A(2). That is the point of an opt-in agreement, and it is common for parties to agree to submit their disputes to, for example, the Commercial Court in England even if there be no connection with the country. That does not exclude regard to presence or absence of a link in the task of construction, but the absence of a link is of itself of little significance. InIGPLat [137] it was said that where there is an agreement within Article 5A(2) “the DIFC Courts are not deprived of jurisdiction even if the claims and underlying facts do not have any connection [to] the DIFC…“, and the observation of Wayne Martin J in Goel at first instance (Credit Suisse (Switzerland) Ltd v GoelCFI 066/2020 (4 October 2020)) at [60] are apposite, beyond the particular matter of the governing law:
“Of course I do not overlook the fact that the Guarantee agreements are governed by the laws of Dubai and applicable federal laws, and not by DIFC law. The governing law of the agreement was regarded as a significant factor in Taaleem. However… it seems to me that while the adoption of the laws of the DIFC as the substantive law of the agreement provides a strong indication that the parties would have intended the DIFC courts have jurisdiction, the converse proposition does not carry nearly so much weight. That is because it is commonplace for the opt in jurisdiction of this Court to involve the resolution of disputes governed by substantive laws other than the laws of the DIFC. The fact that Article 5A(2) contains no requirement for any connection between the DIFC and the parties agreeing to confer jurisdiction upon the DIFC courts, necessarily connotes that prospect.”
17. It may be noted that there was not a material link inLaabika: Horizon’s submissions were constrained to call it an “outlier“.
18. The connection with Sharjah in any event cannot be taken too far. This was marine insurance of peripatetic vessels, under the Policies covered in various but extensive trading areas. Assuming that it can be taken into account at all in the construction of the Policies, reduced significance is warranted for the location of the insurer and the insured and the place of their dealings when the Policies were entered into.
19. Given the width of the choice of “the courts of the United Arab Emirates“, the connection with Sharjah is not a strong argument for confining the phrase to the Sharjah courts or the onshore courts of the UAE: it does not provide a sensible reason for limiting the agreement on jurisdiction to the Sharjah courts alone out of all the courts of the UAE. As to limiting it to the onshore courts, Horizon could say (but did not) that, since Sharjah does not have an “offshore” court, the parties did not intend that the phrase include “offshore” courts of the UAE. It may equally be said that, by agreeing on courts beyond the courts of Sharjah, the parties meant what they said when they made the extended choice of the courts of the UAE, without limitation.
20. The second limb of the submission was rather Protean, but in debate at the hearing took shape. It was said that ABNIC’s insurance activities in the Emirates were subject to the law On the Regulation of Insurance Operations, Federal Law No. 6 of 2007 (the“Insurance Law”) and the dispute resolution procedure in its Article 110. The argument then went that the dispute resolution procedure involved a first decision by the Insurance Authority which could be challenged in a court; that the courts which would receive a challenge were the onshore courts; and that against that background the parties would have intended that the onshore courts would deal with their disputes, and it was “implausible” that there should have been a choice in favour of the DIFC Courts as an “offshore” court.
21. I will refer in more detail to the Insurance Law in connection with abuse of process. As there explained, the dispute resolution procedure deals only with an insured taking a complaint to the Insurance Authority and even as to such a complaint provides for a challenge to go to (in translation) “the competent court if first instance”. This is not limited to the onshore courts; is open to the parties to choose their court or courts of competent jurisdiction, and I see little weight in this in excluding the “offshore“ courts from their choice.
22. In that regard, the submission included that the DIFC Courts could not receive a challenge – as it was put, cannot have jurisdiction under the Insurance Law – because, by force of Article 4(4) of the Law Regarding the Financial Free Zones, Federal Law No 8 of 2004, a DFSA authorised company conducting insurance activities in or from the DIFC was restricted to reinsurance business. As best I understand the argument, it was said that the exclusion of other insurance business from the DIFC evidenced a policy that the regulation and enforcement of that other business and its disputes should also be excluded, with the result that the DIFC Courts could not hear a dispute arising under or in relation to insurance onshore insurance. The submission became quite confused: at one point it was said that the criterion was the onshore location of the insurer; at another that it was the onshore location of the insured, or of the risk; and them probably back to the onshore insurer.
23. The confusion reveals the difficulty in the argument (which it seems could have been an independent argument against jurisdiction, not via construction of the law and jurisdiction clauses in the Policies). It is enough that I am unable to see that the restriction on insurance business in or from the DIFC has any bearing on the ability of the DIFC Courts to hear insurance disputes, if the parties to the insurance contract agree that it can do so.
24. It is then necessary to consider other matters bearing upon the construction of the agreements in the Policies, as submitted by ABNIC in favour of jurisdiction. The Policies are in English, and the governing law is English law. They incorporate a number of standard London marine market clauses, and in particular Institute Clauses. (ABNIC’s submissions included they are on back-to-back terms with its reinsurance, also governed by English law, but I do not think I can pay regard to this as a circumstance known to Horizon.) In ABNIC’s submission, these were strong indications that the parties intended that the DIFC Courts, as a court with a common law system based predominantly on that of England and with international characteristics, was intended to have jurisdiction.
25. The submission cannot be taken too far, since if jurisdiction is conferred on the DIFC Courts, it is shared also with the other courts of the UAE which have a civil system and operate in Arabic. (Horizon’s submissions criticised ABNIC for not explaining why they said the parties’ agreement was “to submit their dispute specifically to the DIFC Courts”: they do not say that.) It is, however, a sound consideration that it was intended that the parties should be able if they wished to submit their disputes to the DIFC Courts, as a court operating in English and likely to have greater familiarity with validity, interpretation and application of the Policies.
26. In my view, reason has not been shown to depart from the ordinary and natural meaning of the conferring of jurisdiction on “the courts of the United Arab Emirates“ as including the DIFC Courts.
Abuse Of Process
27. Central to Horizon’s claim of abuse of process is Article 110 of the Insurance Law, which it is convenient to set out at once (in the LexisNexis translation used by the parties):
“Article 110
1. The insurance company shall process the insurance claims according to the legislations in force and the provisions of the insurance policies based on the following procedures:
a. A decision shall be issued concerning any insurance claim according to instructions of the profession rules and ethics.
b. In the event the claim is fully or partially rejected, the Company shall explain the reasons for each decision in writing.
c. Should a dispute arises concerning any claim, the concerned party shall have the right to submit a written complaint to the Authority which shall also have the right to ask the Company to provide clarifications.
d. The complainant, in case of objection to the clarifications provided by the Company, may request that the dispute be referred to the Committee formed by virtue of Article (110) BIS3.
2. One or more committees shall be formed in the Authority to be in charge of settling the disputes arising from the insurance policies, activities and services. This committee shall have the power to request any instruments or documents, have recourse to experts, hear witnesses or adopt any other alternatives to settle the disputes brought before it.
3. Claims relating to the dispute arising from the insurance policies, activities and services may only be accepted after bringing these disputes before the committee as formed according to the provisions of Clause 2 hereof.
4. The concerned parties shall have the right to challenge the decisions of the committees before the competent court of first instance within thirty days as of the date of their notification of said decision; otherwise, the decision shall be deemed final and enforcible.
5. The Board shall issue the necessary decisions concerning the formation of the committees according to the provisions of Clause 2 hereof, their competencies, powers, work system, remuneration of their members, experts to which these committees shall have recourse, insurance types and branches concerning which insurance disputes and all other related matters may be resolved before these committees.“
28. The Authority referred to in the Article was the Insurance Authority constituted under the Insurance Law. In 2020 it was merged with the Central Bank of the UAE. For convenience, I will continue to refer to the Authority.
29. The first written notification of a loss to ABNIC, on 18 November 2020, amounted only to saying that the Vessel had disappeared and asking that ABNIC “take the required and immediate procedures for compensating the insured and beneficiary of the insurance contract…“. ABNIC responded on 30 December 2020 that the subject was under consideration by the company. On 6 January 2021 it wrote asking for the date and details of the incident and other information, including the reason for the delay in notifying. This was followed, on 6 April 2021, with a number of specific questions in relation to the location of the Vessel and the circumstances of its disappearance. A response to these questions was provided on 9 June 2021. According to the evidence but without detail, there were then a number of meetings between ABNIC and its lawyers and Horizon and its lawyers.
30. On 21 September 2021, ABNIC’s lawyers wrote to Horizon to the effect that the insurer had not been provided with the necessary information “to confirm their coverage position”, listing the information previously requested but not supplied, and reserving the insurer’s “rights, remedies and defences under the Policies and at law”. There followed, on 25 October 2021, the formal notice of a claim for the loss, giving some information and describing investigations said to lead to the conclusion that the Vessel “was the subject of a capture, seizure, arrest, restraint, detainment, confiscation or expropriation by persons connected with the Iranian government and/or Navy, occurring during the period of cover under the Policies“. Written confirmation that the claim was covered under the War Policy was required within seven days, and the right was reserved to claim under the Hull and Machinery Policy.
31. On 2 November 2021, ABNIC wrote acknowledging receipt of the claim and saying that it would “review the same and revert in due course with our position on the coverage“.
32. Horizon did not wait for ABNIC to revert. On 7 November 2021, Horizon and ABIS filed a complaint with the Authority purportedly in accordance with Article 110 of the Insurance Law. The explanation of the circumstances of the loss of the Vessel differed from that in the notification of 25 October 2021 – perhaps markedly so, since it was said that the Vessel had been “exposed to embezzlement, detention and/or arrest or confiscation by persons not related to the Iranian Government, and/or Iranian Marine“, although the notification of 25 October 2021 accompanied the complaint and there may be an error in the translation of the complaint. It was said that ABNIC had not responded to the notification of 25 October 2021 and that “to date, the Complainant did not receive any clear reply from the Defendant in respect of the insurance cover“. It was asked that the committee require ABNIC to “execute its obligation as per the insurance policy conditions“ and pay US$70 million plus interest.
33. ABNIC was notified of the complaint on the day it was filed, 7 November 2021. It emailed the Authority on 8 November 2021, saying that it had officially received the claim only on 25 October 2021 and had replied on 2 November 2021, and “[w]e are now considering everything related to the claim with the company’s counsel…, and our reply to the said claim will be prepared within 10 days of the date of this letter.“
34. On 10 November 2021 ABNIC’s lawyers wrote to Horizon, referring to the Claim Form served that day and saying that the purpose of the letter was to formally notify it of ABNIC’s decision to avoid the Policies, to “explain the principle reasons behind“ its decision to avoid them and bring the proceedings, and to “provide you with the opportunity to bring these proceedings to a swift conclusion”. (The Claim Form had been filed on 10 November 2021, although it was not issued until the next day). According to the evidence, ABNIC had in fact instructed its lawyers to “finalise an avoidance letter declining cover under the Policies and to issue the present proceedings“ on 3 November 2021, and its email of 8 November 2021 to the Authority was disingenuous.
35. On 16 November 2021, ABNIC informed the Authority that Horizon’s claim had been declined and proceedings seeking declaratory relief had been commenced in the DIFC Courts.
36. The evidence is not entirely clear, perhaps due to a translation difficulty, but it appears that the complaint to the Authority has been referred to a committee formed in accordance with Article 110. There was no evidence or explanation of its present status or fate, and I infer that no decision has been made.
37. Horizon’s assertion of abuse of process was put, with a degree of confusion between them, in essentially two ways. One was that there was an abuse of process for ABNIC to “seek to sidestep and evade the application of the dispute resolution regime imposed by the Insurance Law“. The other was that there was an abuse of process because prior to the commencement of the proceedings the dispute had been submitted to that dispute resolution regime and, as it was put in the skeleton argument, ABNIC brought the proceedings “to frustrate a bona fide claim made by Horizon under [that regime] in circumstances where ABNIC had never before disputed the applicability of the onshore regime set out in the Insurance Law”.
38. Critical to the first of these ways is whether Article 110 precludes ABNIC from bringing the proceedings. Horizon contended, and I do not think ABNIC contended otherwise, that in its insurance activities in the UAE including writing the Policies ABNIC was subject to the Insurance Law, and so subject to the operation of Article 110. But Article 110 is confined in its operation. The terms of its clauses suggest that it is only the insured who can make a complaint, and this is made clear in the Authority’s decision pursuant to cl 5 of the Article stipulating, amongst other things, the competencies of committees.
39. In Decision No. 33/2019 Concerning the Regulation of the Committees for the Settlement and Resolution of Insurance Dispute (the“Decision”), issued on 15 July 2019, it is provided in Article 4 (in the LexisNexis translation):
“The Committees shall be competent to settle and resolve all Insurance Disputes of all types and classes of insurance arising from the complaints of the Insured, the Beneficiaries or the affected of capacity or interest in the Insurance Dispute against the Company only of any value whatsoever, whether estimated or not.”
40. By the definitions in Article 1 of the Decision, “Company“ means the insurance company and “Insurance Disputes“ means “[t]he disputes arising from the complaints of the Insured, beneficiaries or the concerned affected parties against the Company“.
41. For whatever reason – perhaps because declaratory relief and claims by insurers for negative declarations are not ordinarily available in the civil courts or familiar to the civil authorities - the dispute resolution regime under Article 110 regulates only complaints by an insured against an insurer. The restriction in cl 3 of the Article on accepting claims before they have been brought before a committee, if it precludes a court from accepting a claim, can apply only to claims against the insurer. It follows that ABNIC is not acting contrary to the dispute resolution procedure in Article 110 in bringing these proceedings against Horizon claiming declaratory relief.
42. It should still be asked whether, although ABNIC is not acting contrary to the dispute resolution procedure in Article 110, it can be found in the regime that it is to “cover the field“ so that the only way an insurance dispute can be settled is by a complaint by the insured – that is, that it is not open to an insurer to initiate any form of resolution procedure including bringing proceedings. Nothing in the Article so provides, and it is evident that the regime does not “cover the field” from the provision in Article 6 of the Decision that the committees shall not be competent in relation to “Insurance Disputes that are subject to an arbitration clause”. That is, the parties to the insurance contract are left free to agree upon other means of resolving disputes between them. In the present case they have done so, by agreement upon (amongst others) a jurisdiction which permits claims by insurers to negative declarations.
43. I therefore do not accept the first way in which Horizon contended for abuse of process. I should add that its submissions included what amounted to a reprise of the argument from the limitation of insurance business in and from the DIFC to reinsurance. The argument in the skeleton argument may have been overtaken by the debate at the hearing, but it was said at one point that it was an abuse of process for ABNIC to invoke the “judicial apparatus” of the DIFC, a Financial Free Zone court, and at another that it was an abuse of process for ABNIC to bring its issues relating to “onshore insurance” into the DIFC “which is specifically restrained from permitting or regulating any such insurance by the FFZ Law“. There is no embargo on recognition in the DIFC or the DIFC Courts of “onshore insurance”, whether insurance written elsewhere in the UAE or insurance between onshore parties, and I am unable to accept this further argument for abuse of process.
44. I turn to the second way in which Horizon contended for abuse of process. At least initially, the argument was a complaint that although ABNIC had not previously disputed the availability of the Article 110 dispute resolution procedure, having received notice of Horizon’s complaint on 7 November 2021 it did did not properly engage with that procedure, but brought these proceedings to frustrate, or as it was also put to stymie, that procedure. It was said that ABNIC rushed to issue the proceedings first, by the instructions on 3 November 2021, contrary to its representation to Horizon on 2 November that it would consider the matter and revert in due course.
45. At the hearing, the argument turned to the doctrine oflis alibi pendens(the“doctrine”) which had received but passing mention in the skeleton argument; not as an argument for a stay, but as a factor in finding abuse of process.
46. ABNIC’s submissions included that the doctrine had no application when the parties had agreed to confer jurisdiction on the court in which it had brought its proceedings, but I do not think that is correct: it remains that invoking the agreed jurisdiction may bring the doctrine into play. But the question arose, and was the subject of supplementary written submissions, whether the dispute resolution procedure under Article 110 enlivened the doctrine. Other questions could be asked about the relationship between the doctrine and forum nonconveniensand its place in the UAE judicial system, but it is sufficient to go to that question.
47. Horizon referred toLehman Brothers Finance AG (In Liquidation) v Kraus Tschira Stiftung GmbH [2014] EWHC 2782 (“Lehman Brothers”), in which it was held that a mandatory conciliation process prior to litigation under the Swiss Civil Procedure Code amounted to court proceedings and came within a Convention provision for a stay of “proceedings involving the same cause of action and between the same parties… brought in the courts of different States bound by this Convention”. The reasoning was that the conciliation authority was an integral part of Swiss civil procedure as a mandatory first step in the resolution of civil and commercial disputes within the court system, and that the trial process could not be commenced until it had taken place (see at [63]). With reference to other decisions to the same effect and decisions on tribunals whose decisions could give rise tores judicataestoppel, Horizon submitted that the Authority by its committees was to be regarded as a judicial body whose proceedings were alis pendens.
48. However, this is not aLehman Brotherssituation. Complaint to the Authority and the decision of a committee may be a mandatory first step where an insured disputes the full or partial rejection of a claim or raises some other dispute, but not where the insurer brings proceedings. The dispute resolution process is not an integral part of the judicial system. It is an administrative process of partial application, with the committees reporting to the Authority (the Decision, Article 1), and by cl 4 of Article 110 its result may be challenged in a court. There is a clear distinction between the Authority by its committees and the courts, and the committee’s decision is not in the workings of the judicial system but something which may be challenged in that system. I do not think the doctrine is attracted.
49. That is not the end of the matter. The considerations underlying the doctrine, avoidance of a party having to litigate in two places at once and avoidance of possibly inconsistent decisions, may be added to Horizon’s complaint earlier described when asking whether in all the circumstances the bringing of these proceedings by ABNIC was an abuse of process. However, when the parties have agreed to confer jurisdiction on the DIFC Courts, as I have held, it should not readily be found that invoking that jurisdiction is an abuse of process: courts exist to quell disputes, and good reason is needed for them to decline to do so.
50. There are difficulties with the complaint. There was no occasion for ABNIC to dispute the availability of the Article 110 dispute resolution procedure until November 2021, and deliberate frustration or stymieing of Horizon’s invocation of that process in response to notice of the complaint cannot readily stand with the instructions on 3 November 2021, before any such notice, to decline cover and bring the proceedings. Those instructions may be seen as rushed in the light of the email of 2 November 2021, but equally it can be said that Horizon and ABIS were the ones who rushed, because under Clause 1c of Article 110 the right to submit a complaint only arose when there was dispute concerning a claim, and ABNIC had not rejected the claim but had said that it was considering it. Horizon’s attention to providing information had not been satisfactory, and its unilateral imposition of the seven days in the notification of 25 October 2021 did not reasonably create a dispute on the expiry of the seven days. Nor indeed has bringing these proceedings frustrated or stymied the course taken by Horizon and ABIS in filing their complaint with a view to a decision by a committee: there was no evidence that the existence of the proceedings would cause the committee to hold its hand, and the dispute resolution process initiated by Horizon and ABIS can continue.
51. It is a consideration that Horizon will need to fight on two fronts, prosecuting its complaint before a committee and defending ABNIC’s proceedings. It is evident that ABNIC will not participate in the proceedings before the committee, and an excessive burden on Horizon is not clear. It is likely that if there is a decision by the committee adverse to ABNIC, it will challenge the decision and the challenge will end up in tandem with these proceedings, so that Horizon will have the double burden in any event and will be where it is now. Even if ABNIC had engaged with the Article 110 process, it would have been entitled to challenge an adverse result in the DIFC Courts as a court of competent jurisdiction: there is no real risk of inconsistent decisions.
52. Taking all matters together, I do not think that in the circumstances in which Horizon and ABIS on the one hand and ABNIC on the other hand acted to make their complaint and to bring these proceedings, respectively, there was an abuse of process by ABNIC, nor is the continuation of the proceedings by ABNIC an abuse of process.
Orders
53. Horizon’s application must be dismissed. ABNIC’s Statement of Costs is AED 385,927.40 in total; Horizon’s is AED 269,327.25 in total. It is curious that according to the Statements of Costs ABNIC’s lawyers spent three times as long in attendances on opponents than did Horizon’s lawyers, and some of the time claimed by ABNIC’s lawyers was misdirected in the witness statement of Mr Mahmoud Shalab being more submissions than factual. I take Horizon’s Statement of Costs as a better measure of the reasonable costs of the application; but it does not include Counsel’s fees and an amount for lawyer’s fees in relation to the supplementary submissions. Necessarily as an estimate, the costs are assessed at AED 300,000.
54. I order that the application be dismissed, and that the Defendant pay the Claimant’s costs of the application assessed at AED 300,000.