Monday, 22 February 2016

Abu Dhabi Global Market - Yet Another Common Law Enclave in the Gulf

The Abu Dhabi Global Market ("the ADGM") describes itself as "a broad-based international financial centre for local, regional and international institutions, established in accordance with the Federal Law No (8) of 2004, Federal Decree No (15) of 2013, Cabinet Resolution No (4) of 2013, and Abu Dhabi Law No (4) of 2013." It is located on Al Maryah Island which is a 114 hectare island to the North East of the capital. Like the Dubai International Financial Centre and the Qatar Financial Centre, the ADGM will have its own legal system based on English common law.

S.1 (1) of the Application of English Law Regulations 2015 provides:
"The common law of England (including the principles and rules of equity), as it stands from time to time, shall apply and have legal force in, and form part of the law of, the Abu Dhabi Global Market—
(a) so far as it is applicable to the circumstances of the Abu Dhabi Global Market;
(b) subject to such modifications as those circumstances require;
(c) subject to any amendment thereof (whenever made) pursuant to any Abu Dhabi Global Market enactment; and
(d) notwithstanding any amendment thereof as part of the law of England made pursuant to an Act or any legislative instrument adopted thereunder at any time after the date of enactment of these Regulations, which amendment shall not apply and have legal force in, or form part of the law of, the Abu Dhabi Global Market, unless and until an Abu Dhabi Global Market enactment expressly provides that it applies and has legal force in, and forms part of the law of, the Abu Dhabi Global Market."
Accordingly, it would appear that the English law of confidence and the action for passing off are imported directly into the law of the ADGM.

S.2 (1) of the same Regulations imports a number of UK statutes into ADGM law with certain modifications. The governing body of the ADGM have made their own laws on companies, data protection, employment, insolvency and partnerships which are based on English law. All the ADGM's laws will be in English.

The ADGM Courts will be governed by the ADGM Courts, Civil Evidence, Judgments, Enforcement and Judicial Appointments Regulations 2015. S. 1 (2) of those Regulations establishes a Court of Appeal and a Court of First Instance. S.12 (1) provides for the Court of Appeal to be a superior court of record and the court of final instance in the ADGM and s.16 (1) for the Court of First Instance to be a superior court of record.  The Court of Appeal shall consist of the Chief Justice of the ADGM and any other judge directed to sit in that court by the Chief Justice (see s.26 (1)). The Court of First Instance shall consist of the Chief Justice and any other judge directed to sit in that court by the Chief Justice.

The Chief Justice has power under s.187 (1) and s.191 (1) of the Regulations to make rules and practice directions to be known as the “ADGM Court Procedure Rules” (see s.186 (1)). These rules shall govern and provide for all the practice and procedure to be followed in the Court of Appeal, the Court of First Instance and any other court as may, from time to time, exist.

The Courts are likely to open in the next few months.  The judiciary has now been appointed. Lord Hope of Craighead will be the first Chief Justice and Lord Saville, the Hon. Kenneth Hayne AC, the Rt. Hon. Sir Peter Blanchard KNZM and William Stone QC will also sit on the bench. Lord Hope must now compile draft ADGM Court Procedure Rules and Practice Directions for consultation.  When the courts open, any lawyer who has practised or been employed as a lawyer for a continuous period of 5 years or more anywhere in the world may appear before the ADGM courts by virtue of s.219 (1) (a) of the ADGM Courts etc Regulations 2015.

Should anyone wish to discuss this article of the ABGM courts generally he or she should not hesitate to call me during office hours on +44 (0)20 7404 5252 or get in touch through my contact form.