UK: Green pastures

Last Updated: 19 June 2007
Article by Edward Brown and Jern-Fei Ng

This article was originally published in The Brief magazine May 2007 - www.tmf.ae

The Dubai International Financial Centre (DIFC) Justice Building officially opened its doors on April 17, 2007, and with it opened up opportunities for new sources of work for senior and junior lawyers throughout the common law world. This article looks at the opportunities for practitioners, and in particular junior lawyers, available for international practice in Middle East and Far East jurisdictions.

The main opportunities presented in the Middle East are the DIFC and the Qatar Financial Centre (QFC). Now that the DIFC courts are officially open for business, what cases are the courts likely to find before them?

Clearly, the main area of work for international lawyers will be in the field of international commercial litigation. Contracts that are concluded within the DIFC will be subject to the laws of the DIFC, which, as a common law jurisdiction, will draw heavily upon the developed law in the key jurisdictions including England and Wales, Canada, Australia, Malaysia, Singapore and Hong Kong. The reach of the DIFC laws remains a matter for judicial consideration. It will be particularly interesting to see whether the fact of signing a contract within the precincts of the DIFC is enough to confer jurisdiction. If the DIFC court wishes to attract business at an early stage, it is likely that it will seek to be expansive as possible in its reach. However, the Court will also be mindful that of the policy objective of bringing business into the Centre as a whole and not just the Courts.

Associates in international law firms with a background in litigation may wish to join an existing or emerging team focused entirely upon the Middle East. In this respect, some international law firms are trailblazers. Of the English firms, Clyde & Co, Holman Fenwick and Willan and Clifford Chance have been quick off the mark in establishing substantial Dubai-based practices. Junior solicitors with litigation experience could do worse than contemplating a move to the year-round sun of Dubai if they harbour an interest in being a rainmaker of the future. A period at a Dubai office may prove to be as significant an opportunity as developing contacts in Hong Kong and New York in the future.

It is likely that junior barristers practising in commercial law will have little difficulty in adapting to practice before the DIFC courts. The bulk of the Court's work is likely to concern commercial disputes between DIFC registered parties or those involving the Centre's institutions. Commercial injunctions are likely to prove as important in the DIFC as they currently are elsewhere in the common law world. Further, practitioners who combine commercial and public law work are likely to see opportunities arising in relation to challenges to the decisions of DIFC institutions, such as the Dubai Financial Services Authority (DFSA).

As previously discussed, the English CPR applies to cases before the Court at the present time. Further, the draft Rules of Court published in December 2006 (drafted by English counsel) draw heavily upon the CPR and the English Commercial Court Guide. As the pool of expertise in this field remains narrow, junior barristers may consider it a worthwhile investment to study the new Rules of Court and to be in a position to offer speedy advice to potential clients.

All common-law lawyers are likely to be comfortable with the surroundings of the DIFC Courts. Proceedings are conducted in public and in English. The building has been designed to the highest standards, with the needs of complex, international litigation in mind. Indeed, court users may find that the facilities on offer in the DIFC compare favourably with those available in other centres (not least London, pending the development of the Business Court Building). Hearings are likely to be conducted along traditional lines with high standards of oral advocacy to be expected. Those appearing before the Court should expect a level of judicial intervention comparable with that of, for example, the English Commercial Court. For those unfamiliar with the practice of that Court, this means that advocates should be prepared and able to deal with judicial intervention in relation to any aspect of the case at any point during submissions.

Those seeking to practice in the DIFC will require rights of audience. At the present time, interim arrangements provide for a two-part Register of Practitioners, distinguishing between rights of litigation and rights of audience. The Register is open to qualified practitioners with a sufficient command of English, upon production of specified supporting documents to the Registrar of the Court. Usually, this will require attendance upon the Registrar, by appointment, at the Justice Building in Dubai.

The QFC is structured along similar lines, although it is still catching up to some extent with the DIFC. Time will tell whether the region can support more than one international financial centre (and if so which). Again, junior lawyers with an eye on the future will be likely to try to keep a finger in each pie. There is clearly no objection to registering in both centres' register, and indeed to familiarising oneself with both sets of rules. Both centres draw upon the same pools of resources in respect of the judges to be recruited (and may in the future see some overlap here).

What next? At present, the DIFC Practitioners' Register has entries from over 50 individual practitioners representing several nationalities. Not all of these are from common law backgrounds, although the UK, USA and UAE dominate. As such, it seems that the opportunities that are being presented in the Middle East appeal to lawyers from all backgrounds. Enthusiastic common law lawyers are in the strongest position to make the most of these opportunities now that Courts are open for business.

The expansion in opportunities for common law lawyers is, however, not confined to the Middle East alone but is discernible also in the Far East, particularly with the rapid emergence of China as a place in which large volumes of business are transacted. China is poised to become the world's largest economy and its increasing integration with the rest of the world presents many opportunities to business people and lawyers alike.

Notwithstanding the civil law origins of the Chinese legal system, a growing proportion of the international commercial transactions concluded in the country are governed by either English law or other common law-based legal systems. This is arguably a reflection of the confidence held by the wider business community in the strong traditions of the common law. The exponential growth rate of the Chinese economy and in the foreign investment which accompanies it is therefore likely, in the long term, to feed into an increase in demand for common law-based legal services. Those far-sighted enough to establish legal practices in, or links with, China now, are well-placed to reap the rewards in years to come.

Moreover, a large (and increasing) number of agreements involving Chinese counterparties contain clauses providing for any disputes arising under such agreements to be resolved by way of arbitration, not uncommonly under the rules of the China International Economic and Trade Arbitration Commission (CIETAC) or those of a "neutral" jurisdiction. There are currently no prohibitions on non-Chinese legal practitioners acting as counsel or sitting as arbitrators in CIETAC arbitrations, thereby enhancing the attractiveness of China to common law dispute resolution practitioners.

In a similar vein, there are few restrictions on the ability of non-domestic practitioners to act as counsel or sit as arbitrators in international commercial arbitrations in many other jurisdictions, such as Singapore and Malaysia, both of which have common law-based legal systems. It is not uncommon to find legal practitioners from different countries representing competing parties in the context of the same arbitration. The relatively unfettered right of non-domestic practitioners to participate in international commercial arbitrations in these jurisdictions have, in turn, contributed to the growth of their popularity as centres for alternative dispute resolution.

It is clear that these are exciting times for legal practitioners in the common law world - the reach of the common law is poised to extend beyond its natural borders which, in time to come, is expected to translate into great opportunities.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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