Rania Tadros Managing Partner
Submission to Jurisdiction in the UAE: An English Court Judgement sheds some light
In Navigators Insurance Company Ltd. V Alkahtani Jlawi Mohammed and Another , the High Court in England considered whether it was able to exercise its jurisdiction in relation to an insurance matter which was arguably already decided in Abu Dhabi Court proceedings. Given the UAE laws on jurisdiction, this decision of Mr. Justice Eder has shed some valuable light on what the English Court considers to be submission by a party to the jurisdiction.
The case before the Abu Dhabi Court concerned an accident in 2008 in which a vessel damaged an underwater cable offshore Abu Dhabi owned by Etisalat (communication company) . A claim was brought in Abu Dhabi by Etisalat against the Owners of the vessel – named as United International Bitumen Company LLC (UIBC) and its insurer, Navigators Insurance Company Ltd. (Navigators). The Abu Dhabi Court considered that it had jurisdiction to determine the matter on the basis of its own procedural laws. In due course the Abu Dhabi Court found UIBC was liable to compensate Etisalat and Navigators were ordered to indemnify UIBC once Etisalat had been paid.
There was an exclusive jurisdiction clause under the insurance policy in favour of English High Court and an express choice of English Law. Navigators therefore brought proceedings in England for a declaration of non-liability on the grounds that the defendants were in breach of various warranties and conditions precedent under the insurance policy. Navigators also participated in the proceedings in Abu Dhabi but presented an objection to jurisdiction, as they must at the first hearing. Thereafter it appears that whilst they maintained their objection to the jurisdiction of the Abu Dhabi Court, they made submissions dealing with the substantive issues in the case.
In the English proceedings Navigators required permission to serve the Claim out of the jurisdiction on the registered Owners of the Vessel (not UIBC, but Alkahtani Jlawi Mohammed) and Navigators obtained such permission from the Court.
When finally served , the Defendant in the English Court proceedings disputed the English Court’s jurisdiction and applied to set aside Navigators’ application on the basis that matters in issue had already been decided by the Court in Abu Dhabi and Navigators found liable. Accordingly the English Court had to determine whether Navigators had submitted to the jurisdiction of the Abu Dhabi Court during the course of proceedings; if it had, the English Court would not be able to exercise its jurisdiction.
At the hearing, the Defendant argued (i) that the matter was already decided (res judicata) as a matter of English law, and (ii) that although Navigators had challenged the jurisdiction of the Abu Dhabi court, they had in fact engaged with the merits of the case, thereby submitting to the jurisdiction. The Defendant relied on a memo issued by Navigators and submissions made by Navigators to the Abu Dhabi court which it said constituted an express submission. It was argued that aspects of Navigators’ later submissions went beyond jurisdiction and in effect addressed matters of substance, which Navigators did not have to put in, in order to challenge jurisdiction. The Defendant also put forward a statement from a UAE lawyer stating that as a matter of UAE Court proceedings, jurisdiction is submitted to if an engagement is made with the merits of the case.
As a matter of English law, submission to jurisdiction is set out in section 33 of the Civil Jurisdiction and Judgements Act 1982 which provides that ‘a litigant who has voluntarily submitted to the jurisdiction of a court by appearing before it cannot afterwards dispute its jurisdiction.’ An appearance to contest the jurisdiction in foreign proceedings does not amount to submission.
Parties contracting on the basis of English law and jurisdiction where there is a UAE nexus, may find themselves before the courts in the UAE, with limited chances of contesting jurisdiction successfully. What transpires from this example is that a defendant to proceedings in the UAE may have no choice but to engage in the merits and risk losing the protection of the jurisdiction clause in the agreement, although on this occasion Navigators did maintain the jurisdiction of the English Court.
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