![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
The Dubai International Financial Centre |
||||||||||
|
THE FUTURE OF BAILII DEPENDS ON USERS LIKE YOU
If you want to be able to use BAILII in the future, please consider making a donation to celebrate BAILII's 25 years of providing free access to law.
Your donation, no matter the size, will help BAILII maintain the legal databases that you and many other users rely on. If every visitor this month gives just Ł5, it will have a significant impact on BAILII's ability to continue providing this vital service.
| ||||||||||
|
You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Ovya v Oshie [2026] DIFC ARB 023 (24 April 2026) URL: https://www.bailii.org/ae/cases/DIFC/2026/DARB_023.html Cite as: [2026] DIFC ARB 023, [2026] DIFC ARB 23 |
||||||||||
[New search] [Help]
ARB 023/2026 Ovya v Oshie
April 24, 2026 Arbitration - Orders
Claim No: ARB 023/2026
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
BETWEEN
IN THE COURT OF FIRST INSTANCE
Claimant
and
OSHIE
Defendant
RULING OF H.E. JUSTICE MARK PELLING KC
I thank the Claimant for its further written submissions concerning the effect of the first instance decision inOrabelle v Orzenia(ARB 7/2026).
It is greatly to be regretted that the judgment inOrabelle v Orzeniawas not referred to at the hearing on 8 April 2026 of the Claimant’sex parteapplication for a worldwide freezing order (the “Hearing”). The duty of full and frank disclosure arises where applications are made without notice. The reason for that was explained inTugushev v Orlov [2019] EWHC 2031 (Comm), [7(ii)]:
“It is a high duty and of the firstimportance to ensure the integrity of the court’s process. It is the necessary corollary of the court being prepared to depart from the principle that it will hear both sides before reaching a decision, a basic principle of fairness. Derogation from that principle is an exceptional course adopted in cases of extreme urgency or the need for secrecy. The court must be able to rely on the party who appears alone to present the argument in a way which is not merely designed to promote its own interests but in a fair and even-handed manner, drawing attention to evidence and arguments which it can reasonably anticipate the absent party would wish to make” (emphasis added).
The“basic principle of fairness”is that a person whose interests are directly affected by a Court order ought to be given an opportunity to make representations about whether that order should be made or, exceptionally, a chance to make representations about why it should be revoked after it is made. That is a long standing common law requirement. The duty of full and frank disclosure is critical to the expeditious disposal of without notice applications and the faith that Judges can place in the information supplied to them by party representatives at such hearings. The duty is to use all reasonable endeavours to identify relevant material, and it is for the court not the applicant to decide what is material and what is not.
That said, I accept the explanation that the failure to disclose Orabelle v Orzenia was inadvertent. It was not, however, blameless since the Judgment was had been available at the date of the Hearing.
However, more importantly for present purposes, had this authority been drawn to my attention, it would not have made any difference to the outcome in light of the decision of the Court of Appeal inTrafigura PTE LTD and others v (1) Mr Prateek Gupta (2) Mrs Ginni Gupta [2025] DIFC CA 001 at [128] - [138]. In light of that decision, I would have held thatOrabelle v Orzeniawas either (i) inconsistent withTrafigurawhich was and is binding on all CFI Judges because it is a decision of the Court of Appeal or (ii) at least realistically arguably inconsistent withTrafiguraand in any event had been decidedper incuriamof the Court of Appeal’s decision inTrafigura. I am less convinced that there is a credible distinction between the two but that does not matter for present purposes given my conclusions as to the binding effect ofTrafigura.
Given that:
I accept the non-disclosure was inadvertent; and
Orabelle v Orzeniashould not be followed as long asTrafiguraremains authoritative and so would not have made any difference to the decision I reached on the without notice application;
I have decided to take no further action in relation to the non-disclosure.
The Claimant and its advisors are reminded however that where there is a failure to comply with the duty of full and frank disclosure, the usual result will be either that the order obtained at the Hearing where the breach of duty took place will be discharged and not regranted or discharged and regranted with an adverse costs order being made in respect of the hearing at which the breach of duty occurred.
A copy of this Ruling is to be supplied to the Respondent as and when the Order is served on it, together with the Court's email to the Claimant's advisors and the response from the Claimant's advisors.
Issued by:
Hayley Norton
Assistant Registrar
Date of issue: 24 April 2026
At: 10am