In an interview with April French of Who’s Who Legal, Mark Beer, Registrar of the DIFC Courts, provides an insight into the workings of the Dubai International Financial Centre’s Courts, an independent common law judicial system within the financial centre of Dubai.
As Registrar of the DIFC Courts my main role is to help people solve their problems. I am involved in the day-to-day running of the court as well as exercising some judicial discretion such as handling urgent applications and actively managing the progress of cases.
My experience in civil and commercial disputes stems from the synthesis of my varied career. I have worked as a private practice lawyer in the UK and UAE, spent time building financial products for Man Investments in Switzerland and served as general counsel for Mastercard Worldwide throughout South Asia, the Middle East and Africa. By having a well-rounded experience of commercial situations I am able to better understand the mindsets of businesses selecting the DIFC Courts as their jurisdiction and the solutions that they are seeking. In particular, as general counsel, I learnt that the key considerations when choosing which court or jurisdiction to litigate in are: (i) will I be able to enforce the decision if I win?; (ii) is the dispute resolution centre efficient, transparent and fair?; and (iii) are there lawyers in the jurisdiction capable of handling my dispute?
The function of the DIFC Courts is simple, it’s to help people and businesses solve the problems they can’t by themselves. We have to achieve this professionally, transparently, efficiently, fairly and in a way that is accessible to all – no one should be denied access to justice on the basis of their financial situation.
The DIFC Courts premises were officially inaugurated in 2007. In 2008 all elements of a commercial court came together: premises, rules, judges and a full registry team. Since then we have heard close to 600 cases across the various courts ranging from significant and complex cross-border commercial disputes to property disputes and employment disputes.
Parties turn to the DIFC Courts for a variety of reasons, one of which is our efficiency. Our court users committee, which comprises senior lawyers and law firms, informs us that this is one of the court’s key attractions. “Justice delayed is justice denied”, and this is particularly true when dealing with businesses: they want an answer as quickly as they can get it.
The rate at which cases are resolved in the courts is something we are very proud of. Ninety per cent of small claims are resolved in three weeks or less, and in the main Court of First Instance, where the most complex of cases are heard, on average 95 per cent are settled before trial.
The DIFC Courts are set up to promote settlement. Settlement not only saves parties time and money but it allows them to work together in the future and to continue doing business.
A real differentiator between our courts and others is our commitment to client service. An independent survey found that 100 per cent of all people using the courts would recommend the courts and 92 per cent were extremely satisfied. This is a remarkable figure for a court.
The remit of the DIFC Courts was recently expanded by law to allow non-DIFC companies – effectively, any international companies seeking potential benefit from our services – the option of having their disputes heard. Since our remit was expanded, our caseload of complex claims has doubled. But more importantly, contracts can now specify that their disputes shall be heard in the DIFC Courts. Previously, if parties had no link to the DIFC they couldn’t choose the DIFC Courts: now they are free to use the court of their choice. Since the moment the law was changed, we were inundated with phone calls from general counsel and law firms asking how they could incorporate the DIFC Courts into their contracts. We have since issued a practice direction with recommended clauses to allow people access to this information through our website.
We are the first fully operational English language court in the region. A vast amount of business is conducted in English across the region and now businesses have a choice whether to enforce their contracts in Arabic in a civil court or in an English common law court. This is a further testament to Dubai’s pro-business stance.
We handle any civil or commercial dispute, from high value cross-border financial disputes between banks and between banks and their customers, to real estate disputes, debt work and employment-related matters.
Our judges are brilliant and it is this which equips the courts to be able to handle the most complex financial disputes. We have judges bringing expertise from Singapore, the UK, New Zealand and Malaysia and we also have the first female judge in the UAE. The international dimension means that the courts are uniquely positioned to handle international cross-border disputes.
The courts have the full sweep of remedies that would be available in London at their disposal, including injunctions, specific performance, search and seizure and pre-emptive applications. Why not go to London? The answer is that it’s not easy to enforce foreign judgments and nigh on impossible to enforce foreign arbitration awards in the Middle East. A judgment from the DIFC Courts is enforceable by treaty throughout the entire Arab world, saving parties from having to re-litigate matters. Businesses and banks tell us that this gives them a much higher chance of enforcement, which allows them to lend more freely in the region and offer a lower cost of credit. This aids the entire economy of the region; credit is the lifeblood of an economy and is particularly important for the growth of small to medium-sized enterprises.
In this way, the DIFC Courts help provide for the growth of the financial services industry and capital markets. Rightly or wrongly, international financial institutions are more comfortable operating in the English language and the choice of an English language court will help them to extend more services to the region and at better pricing. It is equally good for the development of the non-oil sectors of the economy, which is critical for the Middle East as this is where jobs are created. As a very young region it is important to promote job creation.
We have established the first code of professional conduct for lawyers in the region. This sets the minimum ethical standards to which any lawyer operating in the DIFC Courts must adhere. From a client’s point of view, it is critical that they know their lawyers are governed by codes of practices, ethical codes and codes relating to confidentiality, conflicts of interest, proper advice and so on. In order to develop our code, we looked at codes of conduct all around the world, in the UK, US and Australia and in smaller jurisdictions such as the Cook Islands. We put the code out for consultation among all lawyers who would be bound by it and then it was published. It is such a positive step for the region and provides a standardisation and levelling of conduct that is familiar to clients all around the world. If lawyers fail to meet this standard they can be sanctioned privately, or publicly, suspended from practice in front of the DIFC Courts, struck off the DIFC Courts register of practitioners or fined.
Our pro bono programme is the first of its kind in the region and receives no government funding. Many pro bono schemes cost their governments huge amounts of money and in times of austerity this makes them difficult to maintain. With our scheme, we wanted to show the world that it can operate without government funding. We worked with the IBA to develop the scheme and there are now 30 or so law firms registered to help people who cannot afford legal advice. We also run clinics that operate on a walk-in basis. Access to justice involves being blind to the financial resources of parties and the pro bono scheme is a critical way of making sure that no one is denied access to their rights.