In the recent judgment in The Chancellor, Masters, and Scholars of the University of Cambridge v The Holding [2025] QIC (A) 6, the Appellate Division of the Qatar International Court (the "Court") held that it is not permissible for two non-QFC entities to opt in to the jurisdiction of the Court. This is a landmark decision which clarifies a longstanding issue as to the proper parameters of the Court's jurisdiction.
Sultan Al-Abdulla & Partners acted on behalf of the Respondent, The Holding.
Background
By way of brief background, The Appellant, The Chancellor, Masters, and Scholars of the University of Cambridge ("Cambridge") had entered into an agreement with Technolab Co. ("Technolab") for curriculum development services to be rendered onward to the Ministry of Education and Higher Education of Qatar. Technolab is The Holding's subsidiary.
Subsequently, a first demand guarantee and indemnity agreement was executed between Cambridge and The Holding ("Guarantee"), for monies that were payable under the agreement between Cambridge and Technolab.
The Guarantee provided that the Court "shall have exclusive jurisdiction to settle any dispute or claim" arising thereunder.
On or around 4 September 2024, Cambridge brought proceedings against The Holding in the Court (First Instance Circuit), which was followed by an application for summary judgment on 10 October 2024. The Holding did not participate in the proceedings at that stage.
When considering the summary judgment application, the First Instance Circuit considered the question of jurisdiction on its own volition. Cambridge had contended that the Court had jurisdiction under Article 9.2 of the QFC Court Rules and Regulations the ("Court Rules") and invited the Court to exercise that jurisdiction following the decision in Amberberg Limited and another v Thomas Fewtrell and others [2022] QIC (F) 3 ("Amberberg"). Whilst the First Instance Circuit accepted the principle in Amberberg, namely that jurisdiction existed under Article 9.2 of the Court Rules, it refused to exercise that jurisdiction pursuant to Article 9.4 of the Court Rules. In doing so, the First Instance Circuit held that no "particular circumstances" existed that would have persuaded the First Instance Circuit to exercise that jurisdiction.
Subsequently, on Cambridge's request, permission to appeal was granted by the Court. In ¶10, the Court records the following: "In view of the importance of resolving the question as to whether the Rules confer jurisdiction on the Court under article 9.2 to accept jurisdiction under a jurisdiction clause in a contract, and, if so, the principles under which the discretion under article 9.2 should be exercised, we granted permission on 18 February 2025."
It appears that the threshold applied for granting permission was more nuanced than the test prescribed by Article 35.1 of the Court Rules: "A first instance judgment or decision of the Court will usually be final. However, if there are substantial grounds for considering that a judgment or decision is erroneous and there is a significant risk that it will result in serious injustice, then a Court consisting of three Judges (whether the first instance Court or a differently constituted Court) can give permission for an appeal to the Appellate Division of the Court. Any decision to refuse permission to appeal is final." (emphasis added)
As The Holding had not participated in the proceedings at that stage, the Court appointed an Amicus Curiae to assist it in the appeal.
Importantly, on 10 March 2025, as recorded in ¶11, the Court posed 10 questions to Cambridge and the Amicus on which it required assistance from them. (Whilst all of those questions do not feature separately in the judgment, their substance and principles have been addressed by the Court.)
On 13 March 2025, The Holding entered the proceedings. Our firm was instructed as the counsel. Very shortly after instructing counsel, The Holding sought an adjournment to the submission of the skeleton arguments (originally scheduled for 30 March 2025) and the appeal hearing (scheduled for 6 April 2025). The adjournment application was not based on The Holding's request to file a substantive defence, but rather to avoid conflict with the Eid holiday period. As recorded in ¶12, the Court refused that application but amended the date of skeleton submissions to 27 March 2025, with the hearing as originally scheduled on 6 April 2025 (the judgment erroneously refers to 7 April 2025).
Article 9.2 of the Court Rules
The primary question before the Court was to decide the application of Article 9.2. In doing so, the Court (rightly) asked the parties to explore the vires of that provision, in the context of the constitutional framework of the State of Qatar.
Under the Qatari Constitution, a distinction is drawn between primary legislation, which are laws passed by the Shura Council and promulgated by HH The Emir of Qatar; and secondary legislation, such as regulations or rules, which derive their authority from specific enabling provisions in primary law.
As recorded in the judgment, there were three distinct positions that were proffered by the participants:
- Cambridge invited the Court to find that Article 9.2 granted opt-in jurisdiction to non-QFC parties especially where the dispute has a connection to Qatar, and that such jurisdiction was wrongly declined to be exercised at First Instance.
- The Holding contended that jurisdiction of any Court in Qatar is a matter to be determined by primary legislation. And where the primary legislation expressly delegates that authority, jurisdiction may be determined by secondary legislation. According to The Holding, whilst Law No. 7 of 2005 (the "QFC Law") expressly set out the limits of the Court's jurisdiction (see Article 8.3(c) thereof), paragraph 5 of Schedule 2 of the QFC Law expressly delegated the authority to the Court to make regulations on jurisdiction "in connection with activities carried out in the QFC". Therefore, The Holding contended that Article 9.2 of the Court Rules (which is a secondary legislation) could only expand the Court's jurisdiction beyond the four corners of Article 8.3(c) provided that the dispute was connected to activities carried out in the QFC. Because this dispute involved a guarantee and, in turn, curriculum development services that had no connection to activities carried out in the QFC, the First Instance was correct in declining jurisdiction. Alternatively, at the hearing, The Holding submitted that, if the Court was not minded to accept the position based on paragraph 5 of Schedule 2, then it should find that jurisdiction cannot be expanded by Article 9.2 of the Court Rules, similar to position submitted by the Amicus.
- The Amicus contended that jurisdiction is a matter to be determined by primary legislation only and, therefore, the Court's jurisdiction could not be expanded via Article 9.2 of the Court Rules.
After considering the parties' positions, the Court held that its jurisdiction cannot be expanded or modified by Article 9.2, whether in the broad manner proposed by Cambridge or in the limited circumstances suggested by The Holding (see ¶54). The basis is that jurisdiction is determined by primary legislation only, and secondary legislation cannot expand or modify jurisdiction of a Court. The Court heavily relied on the reasoning of the Qatari Court of Cassation in Decision No. 28 of 2015, in which the Qatari Court of Cassation provides an excellent crash course on Qatari constitutional law.
Notably, the Court also referred to two judgments of the Pakistani Supreme Court cited by The Holding (see ¶18) to affirm the principle that parties cannot "confer jurisdiction upon any court when otherwise the court has no jurisdiction". The reliance on these judgments reinforces the principle that the Court is truly an international court which is open to applying relevant principles from common law jurisdictions (such as Pakistan) where necessary.
In reaching this decision, the Court overturned the Amberberg judgment, indicating that the Court got it wrong by accepting jurisdiction in that case, even though the factual matrix was very limited and had a close connection to the QFC (dispute between a non-QFC buyer and non-QFC sellers of shares in a QFC company).
Residual Uncertainty: QFC Arbitration and Non-QFC Parties
Whilst the judgment is indeed comprehensive and has "ruled definitively" that there is no opt-in jurisdiction for non-QFC entities, there is perhaps one lacuna that remains unaddressed: the QFC Arbitration Regulations 2005.
As confirmed in B v C [2024] QIC (F) 20 (in which Sultan Al-Abdulla & Partners were involved on behalf of the Applicant), it is permissible for two non-QFC entities to agree to QFC as the seat of arbitration. Where QFC is the seat, the QFC Arbitration Regulations 2005 are the applicable curial law and, more importantly, the Court has supervisory jurisdiction as the competent court.
This scenario is distinct from where non-QFC entities in a Doha-seated arbitration have agreed to the Court as the "Competent Court". This is because the entitlement to elect the Court as the "Competent Court", and therefore the Court's curial jurisdiction over two non-QFC entities, arises from a primary legislation: Law No. 2 of 2017 or the "Qatari Arbitration Law".
However, the QFC Arbitration Regulations, 2005 are not primary law; they constitute secondary legislation. Nor does granting curial jurisdiction to the Court by two non-QFC entities fall within any of the prescribed categories of jurisdiction in Article 8.3(c) of the QFC Law. Accordingly, the unavoidable question that arises is this: in light of the University of Cambridge judgment, are non-QFC entities entitled to agree to QFC as the seat of arbitration and therefore submit to the Court's supervisory or curial jurisdiction?
Costs
On costs, there were two important points in the judgment; one perhaps more controversial than the other:
- First, no order as to costs was made in favour of The Holding because of its failure to participate at First Instance and at the permission to appeal stage. This underscores the importance for parties to ensure that proceedings do not go unanswered. Even if ultimately successful, lack of proper engagement may result in an unfavourable finding on costs.
- Second, Cambridge's unorthodox attempt to seek its costs from the Court in the event that Article 9.2 was held to be ultra vires. It is important that the Court has set the tone that such ambitious costs submissions are not made in the future, especially where – as the Court indicated – "it was Cambridge which sought to rely on [A]rticle 9.2 as giving the Court opt-in jurisdiction in the present case". In other words, the decision wrongly to invoke Article 9.2 of the Court Rules (and then pursue the issue on appeal) was Cambridge's decision, for which it should bear its own costs.
Where do we go from here?
The University of Cambridge judgment marks a doctrinal shift in QFC jurisprudence, rejecting Amberberg's permissive reading of opt-in jurisdiction and reaffirming the statutory limits prescribed by Article 8.3(C) of the QFC Law. Given the clarity of the Court's decision, no amendment may therefore be required to Article 9.2 of the Court Rules. However, it may be beneficial for publicly available information and guides of the Court to be updated. By way of example, the Official Practice Guide of 2012 should be updated to amend paragraph 1.4 thereof, which expressly addressed Article 9.2 and states that one of the considerations in exercising the discretion under Article 9.2 is "whether the dispute between the parties has a connection with Qatar."
For practitioners based in Qatar, particularly those advising non-QFC entities (whether in mainland Qatar or outside), it is important to stay abreast of these latest developments. More particularly for contract drafters, jurisdictional clauses that involve the Court will require careful consideration, to ensure that they do not fall foul of the University of Cambridge principle.
Arbitration of course is a valid (and popular) alternative in this region. For two non-QFC entities seeking to utilise the curial jurisdiction of the Court, it may be advisable to agree Doha as the seat (as opposed to the QFC) and expressly designate the Court as the "Competent Court" under Law No. 2 of 2017. This may avoid any potential issues arising in the context of the QFC Arbitration Regulations, 2005. Indeed, it may well be that any tension in this regard is resolved by judicial or legislative intervention in the future.
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.
