Ep #1: H.E. Chief Justice Wayne Martin, DIFC Courts

Welcome to Aiken asks, the Middle Easter Sputes podcast co-hosted by me, Shane Jury. And by me, Graham Lovett, Shane and I co-lead Aiken's Middle Easter Sputes practice. In this series, we host discussions with leading figures in the Middle Easter Sputes community. In each segment, we speak with judges, institutional leaders and eminent practitioners to hear their perspective on topics of the heart of Middle Easter Sputes, including jurisdiction, enforcement and regional trends in dispute resolution. Our aim is to inform, entertain and to offer a bite-sized flavor of the issues on the top of our guests, minds and agendas. Now, to today's guests. Shane, today we have someone who, when he speaks, people listen and occasionally leading counsel start to sweat. Indeed, Graham, and we certainly have personal experience of that. We are delighted to be joined by Chief Justice Wayne Martin, Chief Justice of the D.I.F.C. courts. And for those of you who don't know him, the Chief Justice is one of the most distinguished jurists to come out of Australia. He served as Chief Justice of Western Australia for more than a decade before bringing his considerable talents to Dubai. A career at the bar is a silk, then years on the bench, and a long-standing reputation as a reformer, particularly on access to justice and getting cases moving. And those are talents that he has certainly brought to bear in his capacity as Chief Justice of the D.I.F.C. courts. Chief Justice, you lead a court that sits right at the center of the questions this series is about. Enforcement, cross-border disputes, and of course the interface between the D.I.F.C. and everything around it. And with amendments to the D.I.F.C. arbitration law on the horizon, and Dubai arbitration week, fast approaching, there is a great deal to talk about. Chief Justice Wayne Martin, welcome to the podcast. I'll try to be here, thank you for having me. As part of our E.K.N.R. series, we ask our guests and quick-fire questions to soften them up a bit. It's not every day, of course, that one gets the chance to do this with the Chief Justice, so this is an element of the podcast that we're very much looking forward to. So without further ado, let's jump into the first question. Chief Justice, I think I know the answer to this question, but I'm going to try my luck anyway, because we've got you here. So arbitration or litigation, if you had to pick one to resolve your own dispute, which would you pick and why? Depends if I want confidentiality and enforcement. If it's an international dispute and I want enforcement, I would go for arbitration. Whatever kind of dispute is, if I don't want to read about it in the newspaper, I would go for arbitration. But otherwise, if I'm relaxed about confidentiality and I don't have an enforcement problem, then litigation is pretty efficient. I think it's reached the stage now where I think litigation contemporary courts are at least as arguably more efficient than arbitration. I've got a big advantage over arbitration because they can make coercive orders. That's a great point, which we'll come on to. I think the next question complete the sentence. The Middle East disputes market in 2030 will be bigger than it is now and will organized. Chief Justice, what's one thing about your job that gets you up in the morning? It's fascinating. It's very interesting, especially the Middle Eastern component. Because before I got this job, I knew very little of the Middle East. I'd flown over it on the way to somewhere else, changed planes. That's all I've done. It's opened a whole new region to me and it's fascinating. If you weren't in the law, what would you be doing? Perhaps a journalist? I like words. I like the drama. I'm a bit of a shaman, so journalists sort of that sort of thing maybe. If not a journalist, maybe an actor. I mean, I have been approached to be a politician at times, but I've rigorously resisted that and I'm very glad that I did. That's not a great direction these days, I think. No, no, exactly. Not many political careers in Happily. No, exactly. That's an entirely separate podcast we could have there. Chief Justice, to buy arbitration week in three words. I'm looking forward to attending my first. I haven't been able to get to one yet, but I have to go this year. For the quick fire questions, Jonathan Sumpchin once said that most of the law is common sense with bells and knobs on. What do you think about that? I would take off the bells and knobs. I think it's mostly just common sense. I've been adjudicating this speech now for 20 years. It's surprising how often the law corresponds to common sense. Thank you, Chief Justice. You're our first guest who had a different opinion to Jonathan Sumpchin, so that's wonderful. If we could now. And dare I say you're the only person that could get away just doing with Jonathan Sumpchin. Well, I don't have a brain the size of a planet that's probably the difference between it. Moving on to other topics. Now that we've done the quick fire, we're going to take a deeper dive on some questions around jurisdiction, enforcement and arbitral practice. All of which are really at the heart of this podcast and are dear to our hearts as practitioners in the DIC courts. First off the mark is a question about enforcement, which of course is an issue of fundamental importance to our clients when considering the DIC courts as a forum. So Chief Justice, enforcement of foreign awards and foreign judgments in the region, do you think it's genuinely improving or better on paper than in practice? Well, implicit in the question is that it looks good on paper and that's certainly right because you've got the Gulf Cooperation Council, you've got the ReAD convention and you've got within the UAE, you've got cooperation amongst the courts of the various Emirates. So on paper, it looks very good and indeed it ought to be terrific. I don't think the reality actually lives up to that quite as well as it should. And I think that the highest the courts to cooperate better with each other. I think certainly it's improving that cooperation is improving and certainly as between us and the Dubai courts outside the DIAFC, we collaborate and cooperate very well. I think we can improve that with other Emirates and we can improve that with other countries within the region as well. The framework is there, we've just got to improve day-to-day cooperation and collaboration, I think. Could I just ask a follow-up on that? How is it that you're fostering collaboration with the Dubai courts and courts in other Emirates? What strategies and tools does the court have in its armoury? Well, we have communications at a number of levels. I communicate at the level of Chief Justice, of course, the registrars communicate regularly. Next time I'm in Dubai, I hope to go up and visit ADGM and we've had joint sessions, seminars with our court with Qatar with ADGM. We do try and cooperate and the director of the DIAFC Court is a judge of the Dubai courts and sits there one day a week. Focusing on the relationship between the DIAFC courts and the Dubai courts, of course, we've got the conflicts of jurisdiction tribune order, I think was formally known as the Joint Judicial Committee, which was meant to resolve overlaps between the DIAFC and onshore, the Dubai courts and so far as jurisdiction is concerned. From the bench, where is that mechanism working and where do you think it's still presenting some challenges? I think it's working terrifically well. Compared to the JJC, the problem with the JJC was that it basically became moribund and there was a period of almost two years there where it didn't make any decisions. The problem with that is that it created an incentive for defendants who didn't want to pay the money to create a conflict of interest and get a de facto staya of proceedings for a couple of years. Now, the CJT is making most of its decisions within 30 days and that removes that incentive to manufacture conflicts and disputes. So I think it's working terrifically well. I probably should say that because the DIAFC Court has taken over the registry function in relation to that tribunal, so we're able to move it along quickly. There will be differences of opinion from time to time and there was a recent issue where CJT took a different view to the scope of our courts power to conduct examination of judgement debt is under part 50. And we're working our way through that using our lines of communication with the Dubai courts to work out a practical solution. That will be in the best interests of the Emirate of Dubai because we are obviously we're both courts of the same Emirate. We need to work collaboratively and make sure that the best result for the Emirate is achieved. So that's interesting to follow up question for me if I may. So even if there is a decision made by the CJT that's not necessarily the end of it, there will still be collaboration. If there's an issue that that one side or another thinks needs to be resolved or formalized in some way, then there is there is also the potential for follow up. Well, the issue basically is the CJT only has jurisdiction where there is a conflict. So that's only where both courts are exercising the jurisdiction at the same time. An enduring solution is one that applies across the board to all cases, whether there's a conflict or not. The CJT decision is a starting point, but then we have to move into policy and legislative modes and make sure that we have policies and procedures that work for all cases irrespective of whether or not there happens to be concurrent proceedings in both jurisdictions. So that's what we need to collaborate and collaborate and bring in other entities, rulemaking powers. legislative commission, so I think you know a bit about that grant. So those are the sort of things we use. I think from a practitioner standpoint, Chief Justice, we'd certainly echo what you said about the improvements that the CJT has brought to bear. I have in mind an old case that took three and a half years for a determination under the JJC mechanism, so it's good we've moved into new territory and I think that's a relief to all practitioners in the market. Absolutely. If we can change gears now and move from litigation to arbitration, what do you think are the most significant amendments that are proposed to be made to the DIFC arbitration law? Okay well I think the headline change really is the introduction of a mediation section into that law, so there is a mediation provision. The effective which basically is to provide the same opportunities within our court as exist under the Singapore Convention, so that mediated agreements can then effectively be enforced as if judgments of the court. That I think is a giant step forward and should encourage the use of mediation. Other than that, there are a lot of smaller, much smaller changes made by the proposed law. It's basically bringing up to date the law that was passed in 2008, borrowing heavily on the changes that were made in the UK, and also introducing into law a number of the provisions that are commonly found in institutional rules for supervising institutions, relating to such things as electronic communication, remote hearings, extensions of time, the law applicable to arbitration agreements, statutory provisions relating to confidentiality, exparte applications for interim measures, which is a step forward provision of security for costs, consolidation of arbitral proceedings, jointer of parties, summary determination of awards, where there is no real prospect of us of a claim or a defence, preemptory orders relating to disobedience with the tribunal's orders, emergency arbitrators, disclosure of third party funding, cost fees and interest. So there's a miscellaneous raft of provisions that basically intended to bring the arbitration law of the DIFC up to international best practice. I think it's fair to say that one of our objectives in assisting with those amendments to the law was to stamp out what we call due process paranoia, or indeed, I believe, Lord Newburger used that expression recently, London arbitration to speech week. So just on that topic of the relationship between the courts and arbitration and avoiding undue interference in arbitral procedures, how do you see the relationship between the DIFC courts and arbitration evolving under the new law? Well, the DIFC courts are what would be called arbitration, friendly or arbitration-supported courts. I think that's clear in common with courts in Singapore or Australia, the UK and the most Western European courts. So that's clear, but on the other hand, that doesn't mean that you don't need to fear at all. So the courts have an important supervisory role. And that means that when the arbitral body moves outside its jurisdiction or breaches rules of procedural fairness, then the courts have to intervene. And you may have seen that this year, the Court of Appeal set aside an award and a single judge set aside an award. Now, that doesn't mean that we're arbitration unfriendly. What it means is that we are doing our job by requiring arbitral tribunals to play by the rules and to make sure that everybody gets procedural fairness. And that, I think, is arbitration supportive and arbitration friendly. So I think our Court is very supportive of arbitration. Most of the judges are part-time arbitrators, including myself. So we have a great familiarity with arbitration to how it works. And I think we're very keen to promote greater use of arbitration within the region and to support that arbitration as a Court. And the follow-up question from me, which leads on to one of your answers from the quickfire questions, which is where you express the preference for arbitration or litigation. I think paraphrasing, I said, you know, litigation is a bit more of a discipline sport in many ways. And judges can sort of grasp the sort of case management function with the introduction of these new laws and the new institutional rules relating to sort of procedure largely and trying to expedite and sort of remove this due process paranoia. Do you see that it's going to be one day where arbitration is as efficient as a domestic court system? I mean, not all court systems are the same, but I say, for example, a common law court system, which is case managed by a judge. I think it's hard because, of course, the foundation of arbitration is consensus. It's the consensus of the appartis. It's an agreement. So the agreement defines the amity of a jurisdiction. But to take an example, as a judge, if party doesn't comply with a procedure order, you can strike out their claim or defences the case may be. You can't do that as an arbitrator. You can direct it. I don't be heard. You can limit their right. But of course, you then get into the area of procedural due process paranoia, which I think is more imagined than real to be brutally frank. I mean, a lot of arbitrators are aware that denial of procedural fairness is basically the only ground for challenging an award. But you can't use that as an excuse for procedural acety because there have been a number of surveys, and I did some work on this myself. In what I might call the arbitration friendly jurisdictions, I haven't been able to identify a case in which an award has been set aside because of a robust case management decision by an arbitral tribunal. The cases in which that occurs and, as I say, we had two in our court this year, it's where there has been the arbitral tribunal has gone outside the boundaries of the case set by the parties and made a decision based on something that wasn't actually before the tribunal. But in terms of the notion of an award being set aside because you order somebody to do something in 21 days instead of the 42 days they've asked for, that's not going to happen. Most courts will not count and it's a challenge on that sort of basis. So I think arbitrators can be a little more robust in relation to exercising their case management powers and get a bit closer to the sort of robustness that we see in contemporary commercial courts without fear of jeopardising the stability of their award. Just sort of changing tack back to the DFC courts. The court, of course, the DFC court is open to advocates from any jurisdiction and there are guidelines provided they've got a minimum competence and they're fully conversant with DFC rules and procedure. What are some of the best and worst examples of advocacy that you've seen in any court, not just the DFC court but whether in this region or otherwise. I mean, perhaps you can't talk about it. I'm not going to name names, I think that would be poor form. But both the courts I've served on the court in Australia and the DFC court, it's been the same experience and that is you get a vast spectrum of calibers of advocacy. So that in the DFC courts we're often got the benefit of very senior English council who are excellent, of course, and the same in Western Australia, but at the other end of the spectrum you get some lawyers who are not as familiar as they ought to be with the skills of advocacy. All I can say is I guess what I look for in advocacy is is preparation and I used to teach advocacy and the old saying in real estate, there are three important things in real estate. They are location, location and location. I think the three important things in advocacy are preparation, preparation and preparation. You've got to know your brief, you've got to be on top of your brief, you've got to be ready to deal with any question the judge might ask or statement the witness might throw back at you. So I like to see advocates fully prepared and I like to see them having thought through the strategy. And what drives all judges mad is repetition. So we're not stupid. You only need to tell us things once and we'll get it. So going on and on and on and history on X is something that has no place in a courtroom either. They're just the sort of things that the pluses and the minuses if you like what you see. On the topic of preparation, my first supervising partner once told me you've got to remember your five P's, proper preparation prevents poor performance. There's a lot of wisdom in that. There's another version of that I think which we've just as just turning then to you've touched a little bit on on your years leading the Supreme Court of Western Australia there and some of the examples of advocacy you've seen. More generally, what lessons from that experience as the leader of that court have proved most useful and which have proved least applicable in your experience in the DIC courts? Well, thanks, that's an interesting question. I mean, one of the things about the Chief Justice is that you are common expression is you're the first among equals. You don't have power to direct. You don't make decisions on behalf of the court. The judges collectively make decisions. And so in Western Australia, I was very keen on making sure that I had very strong and regular lines of communication with all my judges and knew what they were doing and any decisions would be made by a consensus of the judges. It's the same on the DAFC, but with the practical problem that the judges have spread all over the world. And we only gather in Dubai together once a year at most. So nevertheless, I try and maintain communications as much as I can with the judges and insist on building any significant decisions. For example, with we're currently looking at introducing AI systems, I'm firmly of the view that any decision of that kind must be made by the judges as a whole. So it's been important for me to learn that lesson to ensure that I'm bringing my colleagues along with me. Probably the least relevant was what I learned in terms of dealing with government in Australia. Governments in Australia regard courts as some necessities that they have to fund unwillingly and don't produce any votes for them. When I go cap in hand, And saying we need more judges, because we're drowning in calcium. they'll be very unsympathetic. In Dubai, the DOFC court has seen as an aspect of business development. So if we can persuade the government that we can be more efficient and encourage more investment in Dubai, we get appropriate levels of budget and resourcing. And we are properly resourced, we've got great technology, we've got really good people, and we've got some really good judges. So it's a very different environment, very difficult political environment in which to operate. And that's actually a nice segue to the penultimate question of this podcast. What's your message then to international parties still deciding whether to choose the DOFC courts? Come on down, you'll get very good, very friendly judges, a well-resourced and efficient court. I mean, we've got, if you look around the world in England, Australia, we've got some of the best judges renowned in the countries from which they come. It's a very efficient well-resourced court, the IT is first level, and it works. The court certainly has an embarrassment of riches in terms of the judicial talent. We would say from a practitioner standpoint. And finally, Chief Justice, bearing in mind all of the significant changes we've seen in recent years, not least of which includes a new DOFC court law that came into effect in 2025. Are there any further changes that you'd like to see introduced in the coming years? Well, the big change is one that I think has just sort of happened through the court's law and through the change to the arbitration law. Is that in the encouragement of mediation? I think we've got a long way to go in terms of increasing the rate at which mediations are conducted in Dubai. And I'd very much like to see that happen and do everything we can to support that. Enforcement is another area we've touched upon. I think we can do better in relation to enforcement. I'd like to see some changes there. And of course, AI. The courts are not immune. Nobody is immune from AI. So we need to make sure that we use AI as a tool rather than it using us. And I'm looking forward to using those systems to improve efficiency without surrendering the importance of the judicial function. I think they're the main areas for change, I'd say. Chief Justice Wayne Martin, that's been a fascinating, albeit a brief foray through the DRC courts. But thank you so much for sharing your thoughts and observations with us. And we look forward to seeing you at Dubai arbitration week. It's been my absolute pleasure, Graham. Thank you very much for having me. Absolutely. Very much look forward to it.