Promit Chatterjee, acting for the claimant in proceedings issued in the Abu Dhabi Global Markets Court of First Instance (Commercial and Civil Division) (“ADGM Courts”), has succeeded in resisting a landmark jurisdiction challenge (the “Application”). The judgment provides clarity on the scope and meaning of the term “exclusive jurisdiction of the courts located in the United Arab Emirates”, which was much needed, given that the UAE comprises multiple distinct offshore common-law-modelled jurisdictions and onshore federal civil-law-modelled jurisdictions.

Promit was led by Rodrigo Carè and instructed by Galadari Advocates and Legal Consultants for this Application.

The underlying claim arose out of three commercial agreements, all of which contained a governing law and jurisdiction clause, which stated:

“This Agreement shall be governed by and construed in accordance with the laws of the United Arab Emirates [and the parties] hereby consent to the exclusive jurisdiction of the courts located in the United Arab Emirates for any action or proceeding arising out of or relating to this Agreement.”

Justice William Stone SBS KC approached the Application as “a pure matter of construction”, applying established English authorities, and held that:

(1) the word ‘exclusive’ in the jurisdiction clause connoted “no more than a broad geographical exclusion”, excluding courts outside the UAE; and

(2) the jurisdiction clause constituted a ‘written agreement’ for the purpose of triggering the ‘opt-in’ provision under Art 13(8) of the ADGM Founding Law, given that it embodied the parties’ choice of the “non-exclusive jurisdiction of any available UAE Court” including the ADGM Courts.

Justice Stone SBS KC also rejected the defendants’ forum non conveniens argument based on the surrounding circumstances of the underlying contracts and observed that he “remain[ed] the more impressed with the various factors enumerated by Mr Chatterjee in his address.”

This judgment is significant in many aspects:

(1) It confirms that, absent clear and express limiting language, contractual references to the “courts located in the UAE” can enable parties to bring their claims in UAE offshore common law courts such as the ADGM Courts, irrespective of the governing law of the dispute.

(2) It provides clarity regarding what constitutes “written agreement” for the purpose of triggering the opt-in mechanism under the ADGM Founding Law for bringing claims in the ADGM Courts.

(3) It indicates that the UAE onshore common law courts are usually a more appropriate forum for resolving disputes where the “transactions in … are of a cross-border global nature.”