In 2014, Dubai played host to several significant Africa related conferences, such as the Africa Global Business Forum and West Africa Mining Investment Summit. These conferences brought together heads of state and business leaders from across the Middle East and Africa. Dubai's role as a host to such conferences is not surprising given that trade ties between various African countries and the UAE continue to strengthen from year to year, and several major African companies are using Dubai as an operational hub. Further evidence of Dubai's commitment to developing and strengthening its ties with African countries is the memorandum of guidance ("MOG") entered into by the Dubai International Financial Centre Courts ("DIFC Courts") and the High Court of Kenya (Commercial & Admiralty Division) on 27 November 2014. There is no treaty between the UAE and Kenya for the reciprocal enforcement of judgments, but the MOG now provides detailed guidance as to both the criteria and procedure for the recognition and enforcement of money judgments of the Kenyan High Court in the DIFC and vice versa. In short, it is an officially sanctioned guide by each court for how cross border enforcement can be conducted.
1. The terms of the MOG
The DIFC Courts and Kenyan High Court both apply the common law approach to the enforcement of foreign judgments. This approach requires that: (a) the court which rendered the judgment must have had jurisdiction to determine the subject matter of the dispute; (b) the parties to the original court proceedings and the enforcement proceedings must be the same or derive their title from the original parties; (c) the judgment must be final and conclusive (even though it may be subject to appeal); and (d) the judgment must be a money judgment (judgments ordering fines, taxes or penalties do not constitute money judgments). If these criteria are satisfied, neither court will re-examine the merits of any judgment which is sought to be registered. However, it should be noted that the terms recorded in the MOG between the DIFC Courts and Kenyan High Court do not apply to the enforcement of money judgments in the local UAE courts.
2. Why is the MOG noteworthy?
The signing of this memorandum of guidance between the DIFC Courts and Kenyan High Courts is noteworthy as this is the first MOG entered into by the DIFC Courts and an African state. The DIFC Courts have also entered into MOGs with the Commercial Courts of England and Wales, the New South Wales Supreme Court and the Federal Court of Australia. These MOGs demonstrate Dubai's commitment to providing another layer of certainty for investors in these jurisdictions doing business in Dubai as they provide some reassurance and guidance about the procedures for enforcing money judgments in the respective jurisdictions.
3. What does it mean for business?
For businesses investing in East Africa, the MOG means that the DIFC Courts are now a serious option for the resolution of disputes for those who want to use a court system outside the African continent