United Arab Emirates: Positive Clarification On The Jurisdiction Of The DIFC Courts

Last Updated: 22 August 2017
Article by Susie Abdel-Nabi and Nicholas Braganza

There has been recent success in the DIFC Court of Appeal for the dispute resolution team in Clyde & Co's Dubai office in the case of Kassab Media (FZ) LLC v Sky News Arabia FZ-LLC (CA-010-2016). In essence, the decision confirms that where parties have agreed to the explicit jurisdiction of the DIFC Courts, then it will retain jurisdiction despite certain arguments that the onshore courts have exclusive jurisdiction, particularly for cases where commercial agency and distribution relationships are alleged or exist.

Clyde & Co act for Sky News Arabia, the international news channel in a dispute with one of its commercial partners, Kassab Media. Our role in this dispute has been to seek a declaration from the DIFC Courts that the contractual arrangements are terminated, and to recover the sums due pursuant to the underlying agreement (the Agreement).

The relevant governing law and jurisdiction clause states as follows:

"This Agreement...will be governed by and construed in accordance with laws of the United Arab Emirates as applicable in the Emirate of Abu Dhabi and subject to the exclusive jurisdiction of the Dubai International Financial Centre Courts." (Clause 38)

The Court of First instance

Sky News Arabia initiated proceedings in the DIFC Courts.

Subsequently, an application challenging the jurisdiction of the DIFC Courts was made by Kassab Media who argued that, notwithstanding the explicit wording of Clause 38 granting the DIFC Court exclusive jurisdiction to determine disputes arising, only the onshore Federal Courts had jurisdiction to determine the dispute in accordance with the UAE Commercial Agency Law and the Commercial Code.

The Court of First Instance dismissed Kassab's application on jurisdiction holding that the DIFC court did have jurisdiction to determine the dispute, and applying the jurisdictional gateways under Dubai Law No. 12 of 2004, as amended (the Judicial Authority Law). The Court found that the parties had explicitly agreed to opt-in to the jurisdiction under Clause 38.

The Court went further and determined that the governing law of the Agreement was the laws of the United Arab Emirates as applicable in the DIFC (ie DIFC law). This followed the decision of the previous case of Gavin v Gaynor (CFI-017-2015) but it was precedent setting because in Sky News Arabia's case there is an explicit reference to "Abu Dhabi" in Clause 38. In the previous case, there was a reference only to UAE law, while here UAE law as applicable in Abu Dhabi was interpreted to mean DIFC law.

The Appeal

The decision was appealed by Kassab Media to the DIFC Court of Appeal with a panel of three senior judges namely the Chief Justice Michael Hwang, Justice Tun Zaki Azmi and HE Justice Ali Al Madhani hearing the appeal.

Kassab Media appealed on grounds that:

  • the DIFC Courts did not have jurisdiction to determine the dispute as the claim is subject to the jurisdiction of the Federal Courts in Abu Dhabi under the Commercial Code, the Federal Courts Law, and the UAE Constitution;
  • the DIFC Courts had only a duty to review the validity of Clause 38;
  • the applicable law of the Agreement is the law of Abu Dhabi.

In the alternative, Kassab Media argued that the claim was not capable of being litigated in the DIFC Courts as it arose out of an Agreement which was made unlawfully under the Federal Commercial Agency Law and the Civil Code for various reasons including the fact that commercial agents had to be UAE nationals under the applicable legislation and Kassab Media are not a company wholly owned by UAE nationals.

In response, we argued on behalf of Sky News Arabia that:

  • the DIFC Courts had competent jurisdiction to determine the claims as the parties expressly agreed to the exclusive jurisdiction of the DIFC Courts under Clause 38;
  • jurisdiction is determined solely by the Judicial Authority Law and therefore the Commercial Agency Law and the Commercial Code relied upon by Kassab did not apply in the DIFC Court's determination of jurisdiction;
  • the clear agreement on jurisdiction between the parties satisfied one of the jurisdictional gateways under Article 5(A)(2) of the Judicial Authority Law;
  • the applicable law of the Agreement was UAE Law as applicable within the DIFC.

Court of Appeal decision

The judgment was recently issued and once again, the Court ruled in favour of Sky New Arabia.

The Court of Appeal held that:

  • the DIFC Court's jurisdiction is determined solely by the Judicial Authority Law;
  • the Commercial Agency Law, the Commercial Code and the Civil Code are not applicable in determining the issue of jurisdiction in the DIFC;
  • Clause 38 of the Agreement expressed the parties' choice of court in specific, clear and express terms. It therefore fell under the 'opt-in' jurisdiction under Article 5(A)(2) of the Judicial Authority Law;
  • the issue of applicable law was remitted back to the Court of First Instance.

Impact of the decision

This judgment is a useful clarification particularly in cases where commercial agency and distribution relationships are alleged or exist, and the onshore Courts may have exclusive jurisdiction under UAE law, the DIFC Courts will still not decline jurisdiction.

On the question of the applicable law, the Court of Appeal has declined to affirm the decision of the Court of First Instance in determining that the governing law of the Agreement is the laws of the UAE as applicable in the DIFC. The judges determined that the question of applicable law should be dealt with by the Court of First Instance during the merits phase of the proceedings rather than during the jurisdiction phase.

While the Court of Appeal did not criticise the judgment of the Court below, it felt that there would be opportunities during the merits phase to hear expert evidence or material facts relating to the execution of the Agreement, which would likely be relevant to the question of applicable law.

In conclusion, it is positive that the DIFC Courts are consistent in their approach to retaining jurisdiction when parties clearly intended for the DIFC Courts to be the legal forum of choice.

Positive Clarification On The Jurisdiction Of The DIFC Courts

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Susie Abdel-Nabi
In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions