50 Defining Moments of 2025: Part 4
THE AUTHOR:
Joseph Chedrawe KC, Independent International Arbitrator
This article is part of “Middle East Arbitration: 50 Moments That Shaped 2025,” a series exploring 50 significant developments in international arbitration across the Middle East. Spanning the UAE, Saudi Arabia, Qatar, Bahrain, and beyond, the series highlights key judicial decisions, legislative reforms, and institutional developments that shaped the region’s evolving arbitration landscape in 2025.
DIFC Court Determines Seat and Grants Freezing Order
In Neville v Nigel [ARB 006/2024], the DIFC Court of First Instance granted a freezing injunction and disclosure order in support of an arbitration agreement, which subjected disputes to “Dubai arbitration” (without specifying whether the seat was the DIFC or onshore Dubai or identifying any arbitral institution) (Neville v Nigel [ARB 006/2024], DIFC Court of First Instance, Reasons for the Order of H.E. Justice Shamlan Al Sawalehi dated 22 May 2024, para 10; the clause at issue stated: “THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH ENGLISH LAW, DUBAI ARBITRATION”).
The respondent challenged the DIFC Court’s jurisdiction to grant the injunction, arguing the clause referred to an onshore Dubai seat. Nigel argued that “the true construction of clause 13, or more specifically the reference to ‘Dubai arbitration’, is not only that it is an ad hoc arbitration stipulating an arbitral seat but also that such arbitral seat can only mean non-DIFC Dubai” (para 14). On 22 May 2024, H.E. Justice Shamlan Al Sawalehi upheld the injunction (para 9). While agreeing that “Dubai arbitration” likely meant ad hoc arbitration, the Court determined the seat by considering contextual factors, including the contract’s English governing law and the international nature of the parties and the transaction: “I am unable to accept that in this case by merely using the two words ‘Dubai arbitration’ the parties intended to stipulate a DIAC institutional arbitration pursuant to Decree 34, the DIAC Statute and the DIAC Rules 2022. It appears to me that if the parties intended it to be a DIAC institutional arbitration there would be at least some indicia demonstrating such an intent. There is none” (paras 18-20).
Applying principles of contractual interpretation and business common sense, the Court concluded, on a balance of probabilities, that the parties had intended the DIFC as the seat, thereby grounding the Court’s jurisdiction to issue interim measures in the DIFC Arbitration Law: “the express choice of English law as the substantive law governing the dispute… seems to me a relevant factor pointing to the parties’ preference to be governed by common law principles and by extension also an indicator pointing to a preference to be subject to the arbitral law and supervision of a common law court, such as the DIFC Courts.” The Court further held that “except for Nigel’s incorporation in the onshore Dubai freezone, the international nature of the subject matter of the contract and the parties or their principals are factors that tip the balance in favor of DIFC instead of a non-DIFC Dubai seat” (paras 29-31).
Subsequently, in an order dated 31 July 2024, Justice Al Sawalehi granted the defendant permission to appeal the jurisdictional finding to the DIFC Court of Appeal, but only on the specific issue of interpreting “Dubai Arbitration” as a choice of DIFC seat.
DIFC Court of Appeal Defines Standard for Public Policy Challenge
On 9 January 2025, the DIFC Court of Appeal dismissed an appeal in Nael v Niamh Bank. The appellant bank sought to set aside a DIFC Court order recognizing an arbitral award, arguing that its enforcement would create a “conflicting judgment” with parallel orders from the onshore Dubai Bankruptcy Court, which had granted permission to suspend the liquidation and disbursement of the underlying bank guarantees (paras 1, 19). The appellant bank contended that this conflict violated the UAE’s public policy of avoiding inconsistent court orders (para 22).
The Court accepted that avoiding conflicting judgments is a public policy of the UAE (paras 30, 82). The Court also confirmed that Article 44(1)(b)(ii) of the DIFC Arbitration Law allows courts to refuse enforcement where it would be contrary to public policy (38, 83). However, the Court stressed that this public policy defense is an “exceptional discretionary remedy” and must be “construed narrowly” (paras 84, 42). The Court reiterated the high standard that a public policy refusal is only justified where enforcement would “violate the forum state’s most basic notions of morality and justice” (paras 46, 75, 85).
In dismissing the appeal, the Court held that the Bank had failed to establish the existence of a true conflict (para 86). The Court reasoned that, even if a conflict existed, the public policy of avoiding inconsistent orders was outweighed by the more fundamental public policies of ensuring banks honor unconditional on-demand engagements and the international, pro-enforcement regime for arbitral awards (paras 74, 86).
DIFC Courts Law Creates New Gateway for Arbitral Awards
On 10 March 2025, Dubai issued a new law for the DIFC Courts, Dubai Law No. (2) of 2025 (the “DIFC Courts Law”), which replaced the 2004 Judicial Authority Law and the 2004 Courts Law. (Art. 43(A)).
Among other developments in the new law, Article 14(5) creates a new gateway for the “ratification or recognition of Arbitral Awards”, by which the DIFC Courts are granted exclusive jurisdiction to hear claims and applications for the ratification or recognition of arbitral awards in accordance with the DIFC Arbitration Law. Article 14(A)(6) grants the DIFC Courts exclusive jurisdiction over claims arising from arbitration proceedings where the seat is the DIFC, or where the arbitration takes place in the DIFC and the parties have not agreed on a seat.
The law also clarifies the court’s “conduit” role for enforcing foreign judgments (Article 32), establishes a new Mediation Centre (Article 13: “An organisational unit called the ‘Mediation Centre’ shall be established at the DIFC Courts to consider disputes and resolve them amicably. The President shall determine its operational framework, functions and procedures followed therein.”), allows the court to appoint “Court Assessors” to act as independent experts on technical issues (Article 24(A): “For the purposes of any case pending before any of the DIFC Courts, a Judge may appoint one or more Assessors who shall be independent and experts in their field, to assist the DIFC Court in the determination of any of the issues arising in a proceeding before the DIFC Courts. … If an Assessor appointed under sub-paragraph (A)(1) of this Article provides advice to the DIFC Courts, the parties to the proceedings shall be given an opportunity to make submissions on the Assessor’s advice.”), authorizes the Chief Justice to permit virtual or remote hearings (Article 4(A)), and gives the court broad powers to issue interim orders (Article 24C; “The DIFC Court has power to issue any interim orders it considers just or appropriate including restitution, disgorgement, compensation, damages, or damages in substitution for an injunction; or award any other form of compensation set out in the DIFC Laws and DIFC Regulations.”) and to grant interim relief in support of foreign proceedings (Article 15(4)).
DIFC Court Declines to Set Aside Tribunal’s Procedural Orders
On 9 May 2025, the DIFC Court of First Instance in Naidoo v Nofret (ARB 011/2025) dismissed an urgent application seeking to halt evidentiary hearings and set aside an arbitral tribunal’s procedural orders, reaffirming that procedural rulings do not constitute “awards” subject to court review and that the DIFC Courts will not intervene absent serious procedural irregularity (para 2).
The case arose from an arbitration seated in the DIFC (para 4). The applicant (respondent in the arbitration) sought extensions of time to file its defence and counterclaim as well as a reinstatement of the document production phase, both of which the tribunal dismissed in a procedural order (para 8). The applicant then filed an urgent application before the DIFC Courts seeking injunctive relief to stop the evidentiary hearing and to set aside the tribunal’s procedural decisions (para 9).
The Court held that the tribunal’s procedural rulings were case management decisions falling within the tribunal’s discretionary authority under Article 23 of the DIFC Arbitration Law, and did not constitute “awards” within the meaning of Article 41, which may be set aside by the Court (para 25). The Court added that, while Article 11 provides for the Court’s supervisory power over arbitrations seated in the DIFC, it does not confer a general appellate jurisdiction over procedural rulings issued by an arbitral tribunal (para 19).
The Court reiterated the DIFC Court’s approach of “maximum support, minimum interference” with arbitration (para 24). Citing Lachesis v Lacrosse (DIFC ARB 005) and Nazeer v Noah (DIFC ARB 011), the Court confirmed that judicial intervention is not warranted in response to minor procedural irregularities and will only occur where there is demonstrable prejudice affecting the integrity of the arbitral process (para 22).
DIFC Court Says Awards with Peremptory Orders are Enforceable
On 15 May 2025, the DIFC Courts affirmed their jurisdiction to recognize and enforce arbitral awards that grant interim or anti-suit relief by incorporating earlier procedural orders (Nalani v Netty [2024] DIFC ARB 027, para 21). In Nalani v Netty, H.E. Justice Shamlan Al Sawalehi dismissed a respondent’s application to set aside a prior DIFC Court order that had recognized and enforced a London-seated LCIA partial award (paras 1(a), 3, 37).
The respondent challenged the Court’s jurisdiction, arguing the partial award was not a true award under Article 42 of the DIFC Arbitration Law, but rather a non-enforceable “Peremptory Order” that the partial award had only referenced (para 13).
The Court rejected this argument, holding that the partial award was an “award” within the meaning of Article 42 (para 21). The Court held that a tribunal decision qualifies as an award if it finally resolves the substantive issues before it (paras 20, 21). The Court found that the tribunal’s dispositive text, which granted the relief in the terms of the Peremptory Order, was a clear adjudication (para 21). The Court held that this “incorporation by reference” was “sufficient to transform its contents into binding arbitral relief” and was consistent with the “international practice” of embedding interim measures within final awards (paras 21, 23).
DIFC Court of Appeal Clarifies Interplay Between Bribery and Act of State Doctrine
On 16 June 2025, the DIFC Court of Appeal dismissed an appeal in Korek Telecom Company LLC v Iraq Telecom Ltd [2024] (DIFC CA 016), upholding an ICC arbitration award valued at approximately US$1.7 billion.
The underlying arbitral award found the appellants liable for an unlawful means conspiracy (para 1). The arbitral tribunal concluded that the appellants had procured an adverse regulatory decision from Iraq’s Communications and Media Commission (“CMC”) through the bribery of state officials, which forced the respondents out of their telecoms business (para 57; “the Tribunal found on the balance of probabilities that there was an unlawful means conspiracy under which Mr Mustafa and his associates procured the CMC Decision with a view to using that Decision to force the Respondents out of Korek”).
The appellants sought to set aside the award, arguing that the tribunal had exceeded its jurisdiction. (para 78(a); “pursuant to Articles 41(2)(a)(iii), 41(2)(b)(i) and 41(2)(b)(iii) of the Arbitration Law” on the basis that “in failing to properly engage with and/or dismissing the [Appellants’] jurisdictional objections on the basis of the act of state principle and thereafter proceeding to consider evidence and rule on IT Ltd’s allegations in relation to the decision of the Iraqi Communications and Media Commission dated 2 July 2014 (the ‘CMC Decision’) the Tribunal exceeded its jurisdiction.”). They contended that the “act of state” doctrine, which generally prevents a domestic court from ruling on the validity of an official act by a foreign government, made the dispute non-arbitrable (paras 1, 78(a)). They further argued that the award was in conflict with UAE public policy (para 78(a)).
The Court of Appeal dismissed the appeal, holding that the act of state doctrine did not preclude the tribunal from ruling on the matter (paras 1, 49). The Court reasoned that the tribunal did not investigate the validity of the Iraqi CMC’s decision (para 49; “The Tribunal held that the foreign act of state doctrine, whether or not recognised by the DIFC Courts in the same manner as in the English Courts, had no application to IT’s claims. IT was not challenging the legality or validity of the CMC Decision or that of the CMC Appeals Board. The claim had been advanced on the basis that the CMC’s Decision stood.”). Rather, the tribunal investigated the conduct of the private parties (the appellants) who used bribery to procure that decision (para 50; “The subject of the inquiry was the conduct of the Appellants and not the validity of the CMC’s decree under Iraqi law.”; para 71; “the evidence firmly established on the balance of probabilities that the Appellants bribed the CMC through the purchase of properties in London in order to procure the CMC Decision”).
The Court next found that the appellants’ question did “not involve any investigation of the validity of the CMC Decision” (para 314). The Court held that the CMC’s “Decision was taken to be effective and a link in the causal chain from the acts of the appellants to the loss suffered by the respondents” (para 314).
The Court also stated that UAE public policy “stands firmly against conduct involving the bribery of foreign officials” and that this public policy “will not allow the use of the foreign act of state doctrine to blindfold the Courts or DIFC-seated arbitrators in cases where the disputes before them have arisen out of the corrupt conduct of one of the parties” (para 317).
The Court also dismissed a second challenge regarding the tribunal’s reliance on allegedly illegally obtained evidence, finding the tribunal had not relied on the contested hearsay evidence and noting that, in any event, public policy would likely not “preclude the use of evidence of corruption even if that evidence had been unlawfully obtained” (paras 328-329).
DIFC Court Rules Law of the Seat (Not the Contract) Governs Arbitration Agreement
On 16 September 2025, the DIFC Court of First Instance issued a ruling on the law governing an arbitration agreement in Oswin v (1) Otila (2) Ondray (ARB 032/2025). The Court confirmed that where a contract’s governing law differs from the seat of arbitration, the law of the seat (in this case, DIFC law) governs the arbitration agreement, absent an express choice to the contrary (para 11).
The dispute arose from a Joint Venture Agreement (“JVA”) governed by UAE law (para 10). The JVA contained a multi-tiered dispute resolution clause, which stipulated that any unresolved disputes would be “finally resolved by arbitration under the Arbitration Rules of the DIFC-LCIA Arbitration Centre… The seat, or legal place of arbitration shall be DIFC” (para 10).
The applicant sought an interim injunction from the DIFC Court in support of the DIFC-seated arbitration (para 1). The respondent challenged the Court’s jurisdiction, arguing that the contract’s UAE governing law clause, combined with other related agreements, gave the Abu Dhabi courts exclusive jurisdiction and rendered the DIFC arbitration clause invalid (paras 5, 14).
The Court rejected the challenge and affirmed the separability of the arbitration agreement from the main contract (para 11). The Court held that, by agreeing to a DIFC seat, the parties had implicitly agreed to the supervisory jurisdiction of the DIFC Courts and that the arbitration agreement itself was governed by the law of the DIFC, and not the UAE (paras 11, 16).
The Court commented that “…it is now clear, both as a matter of common law as well as English statute, that it is the law of the seat which constitutes both the lex curiae (lex arbitri) and the law of the arbitration agreement, absent clear indicia to the contrary” (para 11). The Court also found that the JVA’s “exclusive jurisdiction” clause for Abu Dhabi courts was “subject to clause 21.2 and clause 21.3 [the arbitration clause]” and therefore did not override the agreement to arbitrate (para 15).
DIFC Court of Appeal Says Interim Relief Possible Without Local Assets
On 22 September 2025, in Trafigura v Gupta [2025] (DIFC CA 001), the DIFC Court of Appeal confirmed its power to issue freezing orders in support of foreign court cases, even if the entity or person being sued does not have assets in the DIFC.
The lower court had declined to grant a worldwide freezing order intended to support a fraud case in England based on the lower court’s reading that the DIFC Courts Law required a “direct asset link” to the DIFC to grant support of that nature (paras 8, 26-27).
The Court of Appeal disagreed. Examining Article 15(4) of the DIFC Courts Law, the Court concluded that the DIFC Courts Law can handle interim requests for foreign cases, provided that “suitable precautionary measures are taken within the DIFC” (paras 87, 133).
The Court decided that the simple act of filing the application for the freezing order counted as taking a “suitable precautionary measure” in the DIFC, without the need for physical assets in the jurisdiction (paras 120, 124). The Court emphasized that its powers are broad for a reason: to stop parties from hiding or moving assets before a judgment is rendered (paras 1, 130).
DIFC Court of Appeal Discharges Anti-Suit Injunction
On 20 October 2025, in (1) Oran (2) Oaken v Oved, the DIFC Court of Appeal allowed two appeals, discharged an anti-suit injunction, and upheld a jurisdictional objection (DIFC Court of Appeal, Case No. CA 004/2025, Order dated 20 October 2025, Reasons dated 28 October 2025, para 2).
The underlying dispute arose from a contract for emergency air ambulance services containing an arbitration clause referring to the “DIFC-LCIA Rules” with a seat in “Dubai, United Arab Emirates” (para 6). The contract was entered into after Dubai Decree No. 34 of 2021 (“Decree No. 34”) had abolished the DIFC-LCIA Arbitration Centre (para 7).
The appellants had commenced proceedings in the English High Court, while the respondent had filed a request for arbitration with DIAC and sought an anti-suit injunction from the DIFC Courts to restrain the English proceedings (paras 8-14).
The first instance judge granted the anti-suit injunction, finding that, although he was “not satisfied enough that the high probability threshold has been met”, as the arbitration was seated in the DIFC, Article 32 of the DIFC Courts Law provided “an independent power irrespective of the seat” to grant interim relief in “exceptional circumstances” (para 32, quoting Reasons of the Judge at First Instance).
The Court of Appeal rejected this reasoning (para 55). The Court held that Articles 22 and 32 of the DIFC Courts Law “confer power upon the Court to grant injunctive relief in respect of cases falling within the jurisdiction of the Court” but “are not sources of jurisdiction in themselves” (para 68).
The Court emphasized that the Judge’s interpretation would mean “the Court has jurisdiction to determine disputes between any parties anywhere in the world in respect of disputes arising anywhere in the world without any need for any connection with the DIFC whatever” (para 55).
The Court distinguished between the jurisdiction to grant freezing orders, which derives from the Court’s jurisdiction to enforce prospective awards or judgments under the “enforcement principle,” and the supervisory jurisdiction to grant anti-suit injunctions in support of arbitration, which “is limited to arbitrations seated in the DIFC” (para 63).
The Court of Appeal also held that, even if the arbitration were seated in the DIFC, the arbitration agreement would be unenforceable under Article 12(2) of the DIFC Arbitration Law because it formed part of a consumer contract (para 109). The Court found that the individual who contracted for the air ambulance services was acting “for a purpose which was outside his trade, business or profession” and was therefore a consumer (para 112).
The Court rejected the argument that the contract was not a consumer contract just because the services were provided to a third party, stating that Article 12(2) “is directed toward the quality of the transaction rather than the end use of the goods or services” (para 115).
ABOUT THE AUTHOR
Joseph Chedrawe KC is an international arbitrator based in the Middle East, with two decades of dispute resolution experience. He has acted as counsel in more than 50 international arbitrations and as arbitrator in over 50 proceedings across a wide range of seats, rules, and governing laws.
Joseph sits as chair, sole arbitrator, and co-arbitrator in institutional and ad hoc proceedings, including under the ICC, LCIA, SIAC, DIAC, QICCA, arbitrateAD, SCCA, and HKIAC Rules. He is also a member of several leading institutional panels of arbitrators.
Previously, Joseph was a Partner and Vice Chair of Disputes (EMEA) at Covington & Burling and Office Managing Partner and Head of Disputes in Dubai at Vinson & Elkins. He is a visiting professor at Dalhousie University and formerly lectured at the University of Oxford. A Canadian-qualified lawyer fluent in English, French, and Arabic, Joseph was appointed King’s Counsel in 2024.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
