3VB success in DIFC anti-suit injunction
In Ivankovich v KJM Marine LLC & ors [2024] DIFC CFI 068 (26 Mar 2025), the DIFC Court granted only the second known anti-suit injunction restraining proceedings in the Dubai Court on the ground that those proceedings were vexatious, oppressive and unconscionable. The decision is also notable as the first injunction issued by the DIFC Court since DIFC Law No. 2 of 2025, which came into force only days before the hearing, and the first anti-suit injunction concerning proceedings in the Dubai Courts since the introduction of Dubai Decree 29 of 2024.
The Claimant commenced proceedings in the DIFC Court seeking a declaration that a joint venture agreement with the First Defendant (which contained an exclusive jurisdiction clause in favour of the DIFC Courts) had not been terminated and consequential orders to enforce the agreement. The First Defendant counterclaimed, inter alia, for sums due under purchase orders alleged to create a contract between the First Defendant, the Claimant and a US company called AquaForm Watercraft LLC. The First Defendant joined AquaForm to the DIFC proceedings on the basis tat claim against AquaForm under the purchase orders would be tried in the DIFC.
However, the Claimant discovered that the First Defendant had also commenced proceedings in the Dubai Court against him and AquaForm claiming sums due under the purchase orders. The Claimant applied to the DIFC Court for an anti-suit injunction restraining the First Defendant from pursuing the Dubai claim.
Granting the anti-suit injunction, H.E. Justice Sapna Jhangiani KC, giving her first substantive judgment in the DIFC Court, held that the First Defendant’s pursuit of the Dubai claim was vexatious, oppressive and unconscionable and that the DIFC was the natural forum for the claim. There was no legitimate purpose to the Dubai proceedings, when the DIFC Court was the only forum that could hear and determine all the parties’ claims and thus was the natural forum.
Justice Jhangiani rejected the First Defendant’s submission that Decree 29, and a petition to the Conflicts of Jurisdiction Tribunal (the CJT) was the sole basis on which jurisdictional issues could be resolved. In doing so, she relied on recent dicta from the Court of Appeal in Nael v Niamh Bank [2024] DIFC CA 015 (9 Jan 2025) and Justice Martin’s decision in Emirates NBD v KBBO CPG [2020] DIFC CFI 045 (16 Aug 2021), in which Tom Montagu-Smith KC and Matthew Watson of 3VB obtained an anti-suit injunction to restrain vexatious proceedings notwithstanding a pending petition to the Joint Judicial Committee (the predecessor to the CJT).
Justice Jhangiani also considered AquaForm’s position, even though it had not yet been served and was not before the DIFC Court. She concluded that the First Defendant’s pursuit of parallel proceedings against it was vexatious and an abuse of the DIFC Court’s process and that Article 24E of the new DIFC Law No. 2 of 2025 afforded the DIFC Court a power of its own motion to make any order “necessary for the proper administration of justice”. However, exercising her discretion, she declined to make any order in respect of AquaForm. That did not prevent the DIFC Court from granting anti-suit relief as regards the claim against the Claimant.
This decision shows the DIFC Court’s continued willingness to take a robust attitude to litigants who use claims in the onshore courts to disrupt DIFC proceedings. Whilst Decree 29 has gone some way to ameliorating that problem, this decision confirms that the Court retains its own wide powers to prevent abuse. The decision also shows the DIFC Court already giving thought to the width of its powers under the new DIFC Law No. 2.
Matthew Watson acted for the successful claimant, instructed by Matthew Showler, Dan Smith and Tania Singla of Trowers & Hamlins LLP.
