Zaya Living Real Estate Development L.L.C v China State Construction Engineering Corporation (Middle East) (L.L.C) [2023] DIFC CFI 051 (01 February 2023)

Zaya Living Real Estate Development L. L. C v China State Construction Engineering Corporation (Middle East) (L. L. C) [2023] DIFC CFI 051 (01 February 2023) [ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] The Dubai International Financial Centre You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Zaya Living Real Estate Development L. L. C v China State Construction Engineering Corporation (Middle East) (L. L. C) [2023] DIFC CFI 051 (01 February 2023) URL: https://www.bailii.org/ae/cases/DIFC/2023/DCFI_051.html Cite as: [2023] DIFC CFI 051, [2023] DIFC CFI 51 [ New search ] [ Help ] CFI 051/2022 Zaya Living Real Estate Development L. L. C v China State Construction Engineering Corporation (Middle East) (L. L. C) February 01, 2023 COURT OF FIRST INSTANCE - ORDERS Claim No. CFI 051/2022 THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS IN THE COURT OF FIRST INSTANCE BETWEEN ZAYA LIVING REAL ESTATE DEVELOPMENT L. L. C Claimant/Respondent and CHINA STATE CONSTRUCTION ENGINEERING CORPORATION (MIDDLE EAST) (L. L. C) Defendant/Applicant ORDER WITH REASONS OF JUSTICE SIR JEREMY COOKE UPON the Order with Reasons of Justice Sir Jeremy Cooke dated 25 November 2022 (the “Order”) AND UPON the Applicant’s Appeal Notice dated 13 December 2022 seeking permission to appeal the Order (the “Permission Application”) AND UPON reading the Permission Application, the Grounds of Appeal, the Second Witness Statement of Nadia Zaal dated 2 January 2023 and the Skeleton Argument of the Applicant dated 3 January 2023 AND UPON reading the Skeleton Argument of the Respondent dated 27 January 2023 AND PURSUANT TO the Rules of the DIFC Court (the “RDC”) IT IS HEREBY ORDERED THAT: 1. The Permission Application is refused. 2. The costs occasioned by the Permission Application are to be paid by the Applicant to the Respondent, to be assessed if not agreed. Issued by: Delvin Sumo Assistant Registrar Date of Issue: 1 February 2023 Time: 3pm Schedule of reasons 1. The Appeal has no realistic prospects of success and there is no other good or compelling reason why the Appeal should be heard. As to the seven grounds of appeal advanced by the Applicant, none can succeed. 2. The first ground is a new ground that was not advanced before the Court of First Instance and effectively seeks relief that was not requested from that Court. 2.1. There is no reason why the Applicant should be able to raise such a new point. 2.2. More importantly however, it is based on a misconception of the effect of the New York Convention and Article 13 of the Arbitration Law which put it into effect in the DIFC. 2.3. The provisions relied on operate where a DIFC Court is seized of a substantive dispute and a party request that it be referred to arbitration where the dispute falls within the ambit of a subsisting valid arbitration agreement. Here it is the Applicant who seeks substantive relief from the Court in the form of declaratory relief relating to an arbitration agreement. The Court is not seized of a substantive dispute and no request to refer any such dispute to arbitration has been, or could be, made. 3. The second ground does not show how the DIFC-LCIA Rules, even if taken as DIFC Regulations, can be said to confer jurisdiction on the DIFC Court in respect of an arbitration, whether seated in the DIFC or not. Article 16.1 of the Rules is not capable of doing so. Any jurisdiction so conferred would not, in any event, extend to the grant of the declaratory relief sought because of the terms of Articles 10 and 11 of the Arbitration Law (and the other Articles referred to therein), which restrict the areas in which the DIFC Court can assist the arbitration process. 4. The third, fourth and sixth grounds all depend on the argument that DIFC is the seat of the Arbitration, a proposition that is untenable in the light of decided authorities and the provision that the curial law of the arbitration is “the law of UAE and Dubai” and the “place of arbitration” is Dubai with a distinction between that and the venue for hearings in circumstances where the arbitration agreement gives power given to the Arbitrators to hold proceedings at any venue that is appropriate. 4.1. The burden is on the Applicant as Claimant to establish a good arguable case as to jurisdiction which here depends on the construction of the Contract and arbitration clause in question. 4.2. The evidence in the form of a second witness statement from Ms Zaal is inadmissible on appeal, even if admissible at first instance, because the rules for admission of fresh evidence on appeal are not satisfied and the Applicant has not attempted to satisfy them. The material in question was available to the Applicant at first instance and was not adduced. 5. The fifth ground seeks to recast the claim for final declarations as interim relief, when the Claim Form sought declarations that an Arbitration Agreement was binding, that clause 6.2 of the Addendum to the Contract between the parties was binding, that the seat of the arbitration was the DIFC, English the language of the arbitration and the place or venue of the arbitration was on shore Dubai. The claims in the Claim form are not capable of constituting “interim measures” within the meaning of Articles 15 or 24 of the Arbitration Law. 6. The seventh ground relies on Article 7 (1) of the Arbitration Law, which is only applicable where the seat of the arbitration is DIFC, which is not the case here. In any event, even where DIFC is the seat, the DIFC Court is, by Article 10 of the Arbitration Law only permitted to intervene in the circumstances set out in that Law, none of which apply here. 7. Whatever view the DIFC Court might take as to the enforceability of the Arbitration Agreement as a matter of DIFC law and the stance taken by the Respondent in relation to it, the Court cannot exercise a jurisdiction which it is not given by DIFC statute and this Court cannot interfere with an on shore Court, applying its domestic law, or question its decisions, without a jurisdictional basis for doing so. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/ae/cases/DIFC/2023/DCFI_051.html