ADGM comprises three authorities: the Registration Authority; the Financial Services Regulatory Authority; and Abu Dhabi Global Market Courts (ADGM Courts). While the United Arab Emirates is predominantly a civil law jurisdiction, much influenced by French and Egyptian law, ADGM has its own system of law. It is not subject to the civil and commercial laws of the UAE. However, it is subject to the UAE criminal law. ADGM Courts do not have jurisdiction in family law. ADGM Courts and their jurisdiction are modelled on the English judicial system. The foundation of the system of civil and commercial law is provided by a set of regulations made in 2015. They make English common law, including the rules and principles of equity, together with a wide-ranging set of English statutes on civil matters directly applicable in ADGM. The rules of procedure, which are supplemented by a comprehensive set of practice directions, are derived from the Civil Procedure Rules of England and Wales. There is also a supervisory jurisdiction in relation to arbitration proceedings where ADGM is the seat of arbitration.
ADGM Courts comprise a Court of First Instance, within which there is currently a Civil Division, an Employment Division and a Small Claims Division, and a Court of Appeal. The judges are drawn from a variety of common law jurisdictions around the world. They are headed by a Chief Justice, Lord Hope of Craighead KT, who before his retirement was the Deputy President of the UK Supreme Court. They include a former Justice of the UK Supreme Court, Lord Saville of Newdigate PC; a former Justice of the High Court of Australia, Kenneth Hayne AC; a former judge of the Supreme Court of New Zealand, Sir Peter Blanchard KNZM; a former judge of the High Court in Hong Kong, William Stone SBS QC; two former judges of the Queen’s Bench Division of the High Court of England and Wales, Sir Michael Burton and Sir Andrew Smith; and a former Chairman of the Scottish Land Court, Lord McGhie. The registrar and chief executive is Linda Fitz-Alan, a former chief executive and principal registrar of the Supreme Court of New South Wales.
All aspects of ADGM Courts’ business and operations are fully digitised via a unique “eCourts platform”. The platform includes electronic filing, a digital court file, a dedicated digital judges portal, electronic case management and embedded evidence bundles provided by the court at no cost to the parties. The platform also facilitates case management from remote locations as the judges are non-resident. ADGM Courts also have a full digital courtroom with a bespoke bench, multi-party capacity bar tables and capability for multiple remote witness or party connections with the court. ADGM Courts opened for business in 2016 and are now building a caseload in the Court of First Instance.
Dubai International Financial Centre (DIFC) Courts
The UAE’s DIFC Courts administer an English-language common law system – offering swift, independent justice to settle local and international commercial or civil disputes. The Courts, based in Dubai, provide certainty through transparent, enforceable judgments from internationally-recognised judges.
Currently, the DIFC Courts has ten sitting judges, drawn from various common law jurisdictions across the world, including the UK, Singapore and Australia, as well as three Emirati judges. All ten judges sit on the Court of Appeal, and 3 of those judges are members of the Small Claims Tribunal, in addition to other members of the Registry. Court of First Instance cases are heard by a single judge, with Court of Appeal cases being heard by three judges, usually with the Chief Justice or Deputy Chief Justice presiding.
The DIFC Courts are independent from, but complementary to, the UAE’s Arabic-language civil law system – offering a choice that strengthens both processes. The Courts’ have jurisdiction over civil and commercial matters only and do not have jurisdiction over criminal matters.
In October 2011, Dubai Law 16 of 2011, opened the DIFC Courts’ jurisdiction to businesses from across the GCC region and beyond to provide the international business community with access to the services of the DIFC Courts.
The work of the DIFC Courts includes banking and financial services, construction, insurance and reinsurance, contract disputes and many other forms of civil and commercial disputes. In 2017, DIFC Courts launched the region’s first specialised Technology and Construction Division (TCD), which draws on specialist judges and a new set of industry-specific rules to fast-track dispute resolution, providing greater certainty to businesses in court. The Division will only hear technically complex cases.
In line with Dubai’s vision of becoming a ‘smart city’, the DIFC Courts’ Small Claims Tribunal (SCT) was the first dispute resolution service of its kind in the region when it was established in 2007 and in 2016 the region’s first ‘smart’ SCT was introduced, allowing parties in dispute, as well as the judge, access to the case from remote locations and smart devices. It has grown in popularity handling claims totalling AED 30.6 million (USD 8.33 million) in the first six months of 2018, up 17% from the same period in 2017.
In 2017, the DIFC Courts launched the Courts of the Future Forum to tackle legal implications of disruptive technology and design guidelines and prototype a commercial court that can operate anywhere worldwide. The initiative will help create certainty for businesses, investors and entrepreneurs currently unsure of the legal implications of rapid technological change.
In 2018, the DIFC Courts partnered with Smart Dubai to create the world’s first Court of the Blockchain. Building on existing dispute resolution services, the alliance will initially explore how to aid verification of court judgments for cross-border enforcement.
Over 2,000 cases have been resolved through the DIFC Courts since 2008, while over 80% of Small Claims Tribunal cases are concluded within four weeks. The Courts’ community-focused approach encourages early settlement, while their successful track record supports Dubai’s growing status as an international business hub.
Innovation remains enshrined as a cornerstone of the DIFC Courts’ doctrine; setting regional and world firsts include conversion of judgments to arbitral awards, TISSE and 5-Star accreditation, the Academy of Law Pro Bono Programme, e-bundling, and, the Mandatory Code of Conduct for Legal Practitioners, as well as the first court in the UAE to appoint a female judge to its bench.
The DIFC Courts, aside from litigation, act as the curial court for the DIFC-LCIA. The DIFC Courts also have provisions to enable these to accept the ratification and enforcement of judgments worldwide, through treaties and reciprocal arrangements with common law courts, including The Supreme Court of Singapore and the Commercial Court of England and Wales.
In a 2016 study of Governing Law and Jurisdictional choices in cross-border transactions in the Middle East, legal practitioners reported a preference for choosing DIFC law as the governing law and DIFC Courts for dispute resolution.
Based on the inputs from respondents from across the legal sector in Dubai, UAE and beyond, the study found that DIFC is the preferred dispute resolution venue for 42% of legal practitioners involved with cross-border transactions in the Middle East. Some 79% are familiar with the DIFC Courts’ opt-in jurisdiction clause, whilst 57% have used the opt-in clause in contracts for cross-border transactions
These results reinforce the DIFC Courts’ continued attraction as a jurisdiction of choice for commercial law, particularly in the light of the belief of 62% of respondents that cross-border business in the Middle East is on the increase.