Issuu

ISSUE 3 - SEPT 2026

MAGAZINE The Next Chapter:

Latest from the Middle East

Thought Leadership for and by the Middle East Community

ThoughtLeaders4 Middle East Magazine • ISSUE 3

INTRODUCTION

CONTENTS

“Change is the beginning of every new chapter”

Uncertainty Has a Price Tag -

- Anonymous Welcome to Issue 3 of the TL4 Middle East Magazine: The Next Chapter: Latest from the Middle East The Middle East continues to be a region defined by ambition, innovation, and resilience. As markets evolve and opportunities emerge, professionals across the region are navigating change while helping to shape its future direction. In this issue, we bring together insights from leading practitioners on the developments, challenges, and opportunities influencing the Middle East today. Their expertise offers valuable perspectives on a region that continues to grow and adapt at an impressive pace. We extend our sincere thanks to our Corporate Partners and contributors whose insight, expertise, and continued support make this publication possible.

ThoughtLeaders4 Middle East Team Chris Leese

Danushka De Alwis

Founder/Chief Commercial Officer 020 7101 4151 email Chris

Founder/Chief Operating Officer 020 7101 4191 email Danushka

Paul Barford

Founder/ Managing Director 0203 398 8510 email Paul

Jamie Biggam Strategic Partnership Executive 020 3398 8592 email Jamie

Melody Mok

Ben Sullivan

Conference Portfolio Manager 020 3997 8527 email Melody

Commercial Director 020 3965 4386 email Ben

Yelda Ismail

Rachael Dinneen

Group Marketing Lead 020 3398 8551 email Yelda

Strategic Partnership Manager - Private Client 020 3398 8560 email Rachael

CONTRIBUTORS Hannah Howlett, Burford Waleed AlSammak, Burford Daisy Bovingdon, Collas Crill Shabana Saleem, Outer Temple Chambers Dan Toft, Praxis Darren Toudic, Praxis Tom Zierer, Praxis Dominic de Mariveles,Praxis John Medina, Praxis James Newman, Selborne Chambers Barnaby Hope, Selborne Chambers Thomas Williams KC, Selborne Chambers Natasha Dzameh, Selborne Chambers Paul Leggett, Deloitte Jennifer Frenis, Deloitte

Catherine Hammerson-Jones, Lewis Silkin

What Article 1006 Means for UAE Creditors ................ 3 Jersey’s Approach to Asset Freezing -

Cross Border Cooperation ............................................ 6 60 Seconds with... Shabana Saleem ............................. 10 Building Resilient Offshore Structures -

For Globally Connected Families ................................. 11 60 Seconds with... Dominic de Mariveles .................... 13 Fireside Chat with... John Medina ................................. 15 | S elborne Chamber s Supplement |

Fraudulent Misrepresentation Recent Developments on Elements,

Proof, Causation and Remedies ................................... 18 60 Seconds with... Barnaby Hope ................................. 22 Enforcing Awards Against GCC-Linked Wealth Recognition, Execution and

The Structures In Between ............................................ 23 Navigating Financial Distress in Times of Uncertainty -

A Practical Guide for UAE Businesses ........................ 27 Force Majeure, Frustration and Hardship The Importance of Choice of Law and

Risk Allocation in Uncertain Times ............................. 32 Tokenization of Assets in The UAE ............................... 34 A Judgement Is Not The Finish Line ............................ 36

Martin Khoshdel, 33 Chambers Dr. Laura Voda, Fichte & Co Legal

The DIFC VCC - A New Structuring

Florian Herkommer, Fichte & Co Legal

Option for Private Capital .............................................. 38

Fatima Akram, Balfaqeeh Advocates & Legal Consultants

The United Arab Emirates -

Shantanu Mukherjee, Ronin Legal Varun Alase, Ronin Legal Dr. José A. Campos Nave, Spencer West Middle East Rajah Abusrewil, Walkers Anouksha Patel, Walkers Sabrina Devenish, Harneys Robert Maxwell Marsh, Harneys Caitlin Murdock, Harneys

As a Hub for The International Economy ..................... 41 Structuring Wealth in The Middle East -

Private Client Horizons .................................................. 43 From The Middle East to The BVI, Cayman and Bermuda: Managing Family Office Disputes in The Gulf -

Why The Real Battle May Be Offshore ......................... 45

ThoughtLeaders4 Middle East Magazine • ISSUE 3

UNCERTAINTY HAS A PRICE TAG

WHAT ARTICLE 1006 MEANS FOR UAE CREDITORS Authored by: Hannah Howlett (Senior Vice President) & Waleed AlSammak (Associate, Dubai) - Burford Article 1006 of the UAE’s new Civil Code has introduced a significant degree of uncertainty for lenders, creditors and businesses that rely on guarantees as part of their recovery strategy. The provision appears to impose a strict six-month deadline for creditors to start judicial proceedings against both debtor and guarantor after the underlying debt matures, or risk losing the guarantee entirely. While the courts have yet to provide definitive guidance on how Article 1006 will be interpreted and applied, the commercial implications are already being felt. Businesses cannot afford to wait for complete legal clarity before assessing the potential impact on their claims and recovery strategies. Instead, they should be taking proactive steps now to identify risks, preserve recovery rights and ensure they have the resources needed to act quickly if circumstances require.

While the legal position is still developing, businesses should ask a more practical question: What steps should we take now to ensure valuable recovery rights are not lost while the courts provide clarity?

Legal Uncertainty Creates Commercial Pressure Legal change often requires businesses to act before definitive judicial guidance is available. In the case of Article 1006, creditors may feel compelled to take protective action sooner than they otherwise would—commencing proceedings earlier, pursuing claims while commercial discussions continue or allocating resources to matters that might previously have been monitored rather than actively pursued. Important practical questions remain unresolved, including how the courts will interpret and apply the new requirements in more complex financing and dispute scenarios.

ThoughtLeaders4 Middle East Magazine • ISSUE 3 For businesses, this uncertainty creates more than a legal challenge, it creates a commercial one. The key issue is how to preserve recovery rights and respond quickly to changing circumstances without diverting capital from growth or operations.

A Proactive Approach to Claims and Recoveries Rather than waiting for greater clarity, businesses should consider whether now is the time to review their claims and recovery strategies. Key questions include: • D o we have clear visibility over claims, guarantees and recovery opportunities across the business? • A re there matters that may require earlier action than previously anticipated? • Do we have the resources, capital and internal bandwidth to protect valuable legal rights and pursue multiple recovery actions simultaneously? For many businesses, answering these questions may reveal that legal assets are under-managed compared to other balance sheet assets. A receivable is tracked closely; a legal claim or guarantee often is not. Yet these rights can represent significant unrealized value, and like any asset, can lose value if they are not actively managed. For larger businesses, the challenge is not identifying a single claim or guarantee, but managing a portfolio of recovery opportunities and deciding where to deploy finite time, capital and management attention.

Preserving Optionality One of the greatest risks during periods of legal uncertainty is losing flexibility. Businesses may recognize the value of a claim or enforcement opportunity but hesitate to commit capital while the legal position remains unclear. The consequence can be delay, underinvestment or missed opportunities. By ensuring that capital constraints do not dictate legal strategy, businesses retain the ability to act when needed — whether commencing proceedings, maintaining pressure in negotiations, or adjusting their approach as the law develops. Maintaining optionality means ensuring that capital constraints do not

dictate legal strategy. Businesses that have the flexibility to act can commence proceedings when needed, maintain leverage in negotiations and adapt their approach as the law develops. Even well-capitalized businesses increasingly view disputes through a capital allocation lens. Every dollar spent pursuing a claim is capital that cannot be deployed elsewhere in the business.

Looking Ahead

How Legal Finance can Help

The full implications of Article 1006 will become clearer over time as the courts begin to interpret and apply it.

Many businesses think about disputes as a cost. Increasingly, sophisticated businesses view them as assets.

In the meantime, businesses should focus not only on understanding the evolving legal position, but also on ensuring they are practically prepared to respond.

Legal finance allows companies to unlock value from those assets by using third-party capital to fund litigation, arbitration or enforcement. In return, the legal finance provider receives a share of any successful recovery. If the claim fails, the business owes nothing. Importantly, legal finance is not just about paying legal fees. Many businesses use it as a broader financial tool to support enforcement strategies, manage litigation risk, improve liquidity or unlock value from existing claims and awards. Even businesses that could comfortably fund disputes themselves often choose legal finance because it allows them to deploy capital more efficiently elsewhere in the business. In the context of Article 1006, this is particularly valuable. A business may identify multiple claims or guarantees requiring immediate attention but lack budget for a sudden increase in legal spend. Legal finance allows matters to proceed without affecting working capital or delaying other initiatives.

Legal uncertainty need not result in inaction. Businesses that understand their legal assets, actively monitor potential risks and ensure they have access to the resources to act quickly will be best placed to protect value as the implications of Article 1006 continue to unfold.

Hannah Howlett is a Senior Vice President with responsibility for assessing and underwriting legal risk as part of Burford’s EMEA investment team, with a focus on asset recovery. Waleed AlSammak is an Associate with responsibility for assessing and underwriting legal risk as part of Burford’s EMEA investment team, with a focus on asset recovery.

Perhaps most importantly, it allows management teams to make decisions based on the merits of a claim and the value of a potential recovery, rather than the constraints of an annual legal budget. As the world’s leading legal finance firm, Burford works with corporates, financial institutions and law firms to unlock the value of legal assets. Whether financing litigation and arbitration, supporting enforcement or helping businesses manage legal risk more efficiently, legal finance provides flexibility when preserving optionality matters most.

Unlock the value of your judgments and awards. When debtors don’t voluntarily satisfy court judgments or arbitration awards, creditors are forced to commit further capital and internal resources to pursuing enforcement. Burford Capital’s market-leading team provides capital and expertise to help clients enforce high-value judgments and awards.

With a proven track record of recovering hundreds of millions of dollars for clients, we help you move past obstacles and realize value. HOW WE HELP •

Capital to cover day-to-day enforcement costs including legal fees and other expenses

•

Immediate liquidity through advance capital against the value of judgments and awards

•

Capital unlocked through the purchase of judgments and awards, with enforcement fully managed

•

Non-recourse financing— no repayment unless there’s a successful recovery

•

In-house experts trace assets of individual, corporate or sovereign debtors informing enforcement strategy across jurisdictions

HANNAH HOWLETT Senior Vice President

+44 20 3530 2000 hhowlett@burfordcapital.com

ThoughtLeaders4 Middle East Magazine • ISSUE 3

JERSEY’S APPROACH TO ASSET FREEZING

CROSS BORDER COOPERATION Authored by: Daisy Bovingdon (Senior Associate) - Collas Crill One of the ways in which the Courts of Jersey maintain the reputation and integrity of the island as an international finance centre is by granting freezing injunctions, in appropriate circumstances, to provide support to overseas courts. In the leading case of Solvalub Ltd v Match Investment Ltd [1996] JLR 361, the Jersey Court of Appeal aptly explained the policy behind Jersey’s approach to freezing injunctions in the following way : ‘…the availability of the relief is desirable in the interests of comity with the courts of other countries and in the interests of Jersey’s reputation as a financial centre.’ per Le Quesne, J.A at (page 369, line 22 – page 370, line 45). Solvalub is now some 30 years old. However, this sentiment holds true today. International comity underpins the approach of the Jersey Courts. That comity is complemented by a restraint which ensures that limits are placed on both the Jersey Courts’ own ability to

assume jurisdiction over a non-Jersey resident defendant; and a foreign court’s ability to assert jurisdiction over Jersey assets.

Common Jersey Asset Freezing Scenarios There are three scenarios that commonly arise for parties in relation to asset freezing, in Jersey: 1. Will the Jersey Courts grant a freezing injunction in aid of a set of foreign proceedings? 2. Will the Jersey Courts assume jurisdiction over a particular defendant? 3. How will the Jersey Courts deal with a worldwide freezing order granted by a foreign court? This article addresses these scenarios, before considering the use of disclosure obtained in Jersey in support of foreign proceedings, and finally the unique handling of a Jersey trust structure.

Will the Jersey courts grant a freezing injunction in aid of a set of foreign proceedings? The Jersey Courts have the power to grant freezing orders in aid of foreign proceedings, including where no other relief is sought in Jersey (Solvalub Ltd v Match Investment Ltd [1996] JLR 361). Freezing orders are granted at the pretrial stage, and also post-judgment, in aid of enforcement. Ancillary disclosure orders invariably accompany the order; with post judgment disclosure being more freely given, the defendant already having been found liable on the merits, in the foreign court or arbitration.

Will the Jersey Courts Assume Jurisdiction Over a Particular Defendant? Jurisdiction: Jersey Resident Defendants A Jersey Court will make a worldwide disclosure and/ or freezing order over a Jersey company, or a Jersey resident

ThoughtLeaders4 Middle East Magazine • ISSUE 3 defendant because it has in personam jurisdiction over that defendant (Africa Edge S.a.r.l. v Incat Equipment Rental Limited and others [2008] JRC 175).

Freezing Order Procedure in Jersey An application for a freezing order is made by Order of Justice (being the pleading), and supporting Affidavit. There is a user-friendly Practice Direction (RC20/12) setting out procedural requirements and a standard form of Order. Any proposed changes to the standard form must be highlighted and explained.

Jurisdiction: What about NonJersey Resident Defendants? Personal jurisdiction can extend to nonresident defendants who are properly before a Jersey Court. This was the scenario in Dalemont Limited v Senatorov [2012] (1) JRC 014. In that case, the Court did consider that it had jurisdiction to make worldwide disclosure orders against a Russian individual and Cypriot company who had been joined as necessary and proper parties to proceedings which involved a Jersey Foundation, over which the Jersey Court had clear jurisdiction. Bearing in mind that a Plaintiff must obtain the Court’s permission to serve a pleading out of the jurisdiction, with reference to one of the ‘service-out gateways’ set out in Jersey’s Service of Process Rules 2019, the Court will already be satisfied that there is an actual connection to Jersey for the relevant defendant to be brought before it in the context of a particular case. So it is unsurprising that the Court considers it has jurisdiction to make a worldwide disclosure order against that non-resident defendant, again in the context of that case.

Will the Jersey Court Will Exercise its Discretion to Make the Order? The question then arises as to whether the Court’s discretion ought to be exercised, to order disclosure. In Dalemont, as the Cypriot company was the alleged recipient of assets being claimed by the plaintiff, it was a proper party to the claim in Jersey. An application for leave to appeal the disclosure order failed. It was highly relevant that Dalemont was a post-judgment case. In exercising its discretion to grant the disclosure, the Court highlighted that the use of the Island’s financial services to hide assets so as to defeat a judgment creditor is, as a matter of policy, something to be strongly discouraged. It was therefore ‘just’ to grant the worldwide disclosure order.

How Will the Jersey Courts Deal with a Worldwide Freezing Order Granted by a Foreign Court? Worldwide freezing orders granted by a foreign court, are not automatically recognised in Jersey. The Jersey Courts will consider the matter afresh. The legal test for the grant of a freezing order is helpfully summarised in the case of Cornish v Brelade Bay Limited [2019] JRC 091 (RC) (Blf), and broadly mirrors the test applied in England and Wales. The applicant must: • e stablish a good arguable case on the merits of the underlying action; • give full and frank disclosure; • g ive particulars of their claim, and points against their claim; • s et out the grounds for believing that the defendant has assets in Jersey; • e xplain why there is a real risk that those assets will be dissipated, unless the defendant is restrained by order of a Jersey Court; and • give an undertaking in damages. It is important for a party with the benefit of a foreign worldwide freezing order, to seek to obtain the order in Jersey. Banks and other financial institutions, trust companies and so on holding assets will generally ignore the foreign order, as they know it won’t be directly enforceable in Jersey, without that mirror order from a Jersey court.

The affidavit must evidence that all limbs of the legal test are satisfied; set out the procedural steps taken in the foreign Court, the orders handed down there and any subsequent steps taken by the plaintiff. Whether or not the order is granted, is ultimately within the Court’s discretion. Whilst the procedure is well trodden ground in Jersey, the courts often cites a passage from Holyoake and Another v Candy and Others [2017] EWCA Civ 92] T at 40, that : ‘… it is necessary to maintain the close regulation of the availability of injunctions which have the nuclear effect of prohibiting the affected party from dealing with his assets.’

Use of Disclosure Obtained in Jersey, in Support of Foreign Proceedings The Jersey Court has recently taken a reasonably liberal approach to the use by parties of disclosure ordered in Jersey, in aid of foreign proceedings. In Emirates NBD Bank P.J.S.C v GlenQ Nominees Limited and Ors [2026] JRC 038, the Jersey Court made disclosure orders in support of post-judgment enforcement of an award of the Dubai Court of Cassation. The issue that arose was whether the disclosure obtained, could be used in support of English bankruptcy proceedings for the purpose of establishing residency.

Whilst this may sound obvious, it is a point that can be overlooked by clients.

ThoughtLeaders4 Middle East Magazine • ISSUE 3 The facts were that Emirates Bank (the Bank) had the benefit of an order of the Dubai Court, which found a Qatari national, Mr Al Saad, liable to pay the equivalent of £14.5m pursuant to a guarantee. The Bank sought, and was granted, certain disclosure orders in Jersey. The Bank had undertaken that, other than with leave of the Jersey Court, any information obtained would only be used for the purpose of identifying assets which could be the subject of freezing orders ; disclosure orders; and / or substantive claims brought by the Bank to enforce the Dubai judgment, in Jersey or elsewhere. The Bank then received some 6,000 pages of disclosure in relation to a trust structure, the settlor of which was the debtor, Mr Al Saad. The Bank applied to the Jersey Court for permission to use that disclosure in English bankruptcy proceedings, for the sole purpose of confirming Mr Al Saad’s residency there, to assist in establishing the relevant jurisdiction. The Jersey Court had no difficulty with the Bank’s application. The entity holding the trust assets was entirely unsuccessful, in opposing it.

Jersey Trust Structures

Article 9 of the Trusts Jersey Law 1984 (as amended) sets out powerful firewall provisions which have the effect that the Jersey trust remains valid whether or not any foreign law recognises the concept of a trust; or the trust or a transfer into trust avoids or defeats rights conferred by any foreign law in relation to matrimonial, or forced heirship law.

Asset Freezing Conclusions

These firewall provisions also defend Jersey trusts by ensuring that, subject to the terms of the trust, which prevail, all questions in relation to the trust or any disposition of property to it, are determined in accordance with Jersey law, without reference to the law of any other jurisdiction.

The Courts have repeatedly shown their commitment to international cooperation and also to ensuring that the reputation of Jersey as an international finance centre, is protected.

Firewall provisions of this type are common across the offshore world. What this means in the context of freezing injunctions, is that if the Jersey Court is presented with an application seeking the preservation of assets of a Jersey trust in support of foreign proceedings which, if successful, would offend Jersey law, then, subject to the terms of the trust itself, the application would fail.

The Jersey Courts are used to dealing with applications for freezing orders and disclosure orders quickly and on an ex parte basis to ensure that effective remedies are available to preserve assets in Jersey where appropriate.

The Jersey Courts do so without compromising their own jurisdiction, in considering any worldwide freezing order granted by a foreign court, afresh. The Jersey Courts have also demonstrated that they will take care not to overreach their own jurisdiction, over foreign defendants.

The Unique Customary Law Remedy of Pauline Action There remain strong remedies within Jersey’s armoury to assist creditors, not least in the form of the Pauline action, which deserves brief mention.

Firewall Provisions It is often the case that an individual resident abroad over whom the Jersey courts do not have in personam jurisdiction, holds an interest in Jersey trust assets.

The Pauline action is a customary law remedy by which a transfer undertaken in fraud of creditors may be set aside. It requires a plaintiff to prove that it was a creditor at the time of each transfer of assets, that the debtor was insolvent at the time of each transfer or rendered insolvent by it, and that the transfer was carried out with the substantial intention of defeating the creditor (see Emirates NBD Bank PJSC v Almakhawi and Others [2024] JRC 256 – enforcement of orders of the Dubai Court). Freezing orders can be granted to preserve assets pending the outcome of a Pauline action.

The answers you need but didn’t expect When you need offshore expertise, you need advisers who go beyond. Beyond insight to foresight. Beyond options to decisions. At Collas Crill, we go further to solve your challenge, delivering clear solutions that have real-world impact.

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ThoughtLeaders4 Middle East Magazine • ISSUE 3

60 SECONDS WITH... SHABANA SALEEM BARRISTER

OUTER TEMPLE CHAMBERS

hat has been the most valuable W lesson you’ve learned in your career?

What industry trend are you most excited about over the next five years?

he most valuable lesson I have learnt is T to keep under review where you can add the most value to each client. It can be instinctive to focus on meeting immediate client demands and in doing so, lose sight of the ‘bigger picture’. I learnt an enormous amount from working with outstanding teams in London and Dubai, but I have realised that the most fulfilling work comes from building a practice that reflects your strengths and values and one which maximises the impact you can have.

I am excited by the potential of technology to make legal services more accessible and efficient. Technology has already played an important role in helping me build and develop my own practice and will transform how smaller and more agile practices are able reach clients. The opportunity now is to use technology responsibly to improve client experience and access to legal services, although it does come with risks and challenges.

What aspect of your work do you find most rewarding? elping families resolve difficult moments H through mediation is incredibly rewarding. There is something powerful about supporting people through one of the most challenging periods of their lives and helping them move from conflict towards understanding and agreement. Helping couples reach resolutions, avoid the financial and emotional cost of court proceedings, and create a more constructive path forward, particularly where children are involved, is what makes this work so meaningful. If you could travel anywhere in the world tomorrow, where would you go? J apan. I have always been fascinated by places where history, tradition and innovation exist alongside each other, and Japan seems to embody that balance beautifully. We are hoping to spend a month there in early 2027, so if anyone reading this has recommendations for places to visit, hidden gems, or experiences not to miss, I would love to hear them! What quality do you believe is essential for success in your profession? eople skills. Legal knowledge and P technical ability will always be fundamental, but as technology and AI continue to transform how we work, the ability to build trust, listen carefully and understand people will become increasingly important. Particularly in family law and mediation, clients are not simply looking for answers; they need someone who understands their concerns and can help them navigate difficult decisions.

What is the best piece of advice you have ever received? “ If you are not enjoying the marketing, don’t do it.” James Freeman at Charles Russell Speechlys gave me that advice years ago. It took time to fully appreciate that advice, but I now understand that the best work, client experience and business development happens when you enjoy the company of the people with whom you work, and the purpose behind what you are working towards. What is a hobby or interest that people might be surprised to learn you have? I love scuba diving. There is something awe-inspiring about entering a completely different world beneath the surface. It is peaceful, challenging and constantly surprising. I enjoy exploring new countries, but discovering what lies underwater adds another dimension to that experience. It is a reminder that there is always more to learn and discover.

If you could have dinner with any historical figure, who would it be and why? I would choose Abdul Sattar Edhi and his wife, Bilquis Edhi. Together, they demonstrated the extraordinary impact that a small number of people can have when compassion is combined with action. Through the Edhi Foundation, they built one of the world’s largest private social welfare organisations, providing support to millions of people regardless of their background. I would be fascinated to understand how they built such extraordinary trust across communities and maintained such a strong sense of purpose throughout their lives. Their commitment to protecting the vulnerable, particularly children and families, resonates deeply with me given my work in family law and mediation. What is one book that has had a lasting impact on you? he Hobbit. It was one of the earliest T books I remember reading in primary school, and it left a lasting impression on me. The story of Bilbo Baggins (an unlikely adventurer stepping beyond the familiar into a world that was socially, culturally and linguistically different from his own) opened my mind to the possibilities of exploring the wider world and creating my own path. Looking back, I think that theme has stayed with me throughout my career: the importance of curiosity, embracing unfamiliar challenges and having the courage to step outside your comfort zone.

What advice would you give to someone starting their career today? eed your curiosity. It is easy, particularly F early in your career, to focus on the next promotion, financial reward or immediate client demand, but the most valuable investment you can make is developing your expertise by continuing to learn and explore. Curiosity leads you towards the areas where you can add the most value and, over time, helps you build a reputation and practice that align with your strengths. Never lose the mindset of a student; the best lawyers remain lifelong learners.

ThoughtLeaders4 Middle East Magazine • ISSUE 3

BUILDING RESILIENT OFFSHORE STRUCTURES

FOR GLOBALLY CONNECTED FAMILIES Authored by: Dan Toft (Senior Executive Officer, UAE) , Darren Toudic (Executive Director, Jersey) & Tom Zierer (Senior Executive Director, Hong Kong) - Praxis For internationally connected families, offshore structuring is no longer just about where assets are held. As family members, operating businesses, investment portfolios, and advisers become more geographically dispersed, the key question is how governance, control, and succession can continue to function effectively across jurisdictions over time.

and advisers, that means treating complexity as a governance challenge rather than an administrative process.

This was the central theme of a recent Praxis webinar, hosted by ThoughtLeaders4, exploring how families are approaching offshore assets in an increasingly fragmented world. The discussion brought together perspectives from the Middle East, Jersey and Asia, with a clear message: enduring structures are designed around the family’s long-term objectives, not a single jurisdiction or product.

Complexity is Now the Baseline

As Dan Toft, Senior Executive Officer – UAE, observed during the panel: “Complexity is almost a given, and needs to be met head-on.” For families

Operating businesses may remain closely tied to the family’s home market, while investment portfolios and real estate holdings sit elsewhere.

Against that backdrop, the traditional distinction between “local” and “offshore” planning is becoming less clear. The more practical issue is how to create a framework that can respond to changes in regulation, family residence, succession expectations, and risk appetite across generations.

Families using cross-border structures today are often managing several layers of complexity at once. Assets may be held across the GCC, Europe, the UK, Asia, and the US, with beneficiaries who may be educated, resident, or taxconnected in different jurisdictions.

In the Middle East, families are responding to developments such as VAT, corporate tax, regulatory alignment, and broader expectations around compliance and cybersecurity. In Asia, similar pressures are emerging as regulation increases and families contend with foreign ownership rules, capital controls and reporting obligations. Tom Zierer, Senior Executive Director – Hong Kong SAR, summarised the direction of travel clearly: “Professionalisation of these structures is becoming increasingly more important.”

ThoughtLeaders4 Middle East Magazine • ISSUE 3 Family charters, councils, protocols and statements of intention can help create a shared reference point for how the family interacts with the structure, how decisions are escalated and how wealth is intended to support future generations.

Governance is The Anchor The panel repeatedly returned to the importance of clear governance architecture: who makes decisions, where those decisions are made, what is reserved for the family, what is delegated to professionals and how the structure demonstrates substance in the relevant jurisdiction. Darren Toudic, Executive Director in Jersey, emphasised that structures need appropriate records, reporting and decision-making processes, as well as clear evidence of mind, management and control. “Good governance allows a structure to remain functional when circumstances change,” Darren said. “This is particularly important where a family wants to retain appropriate involvement while benefiting from professional fiduciary oversight. Careful drafting, clear reserved powers and appropriately composed boards or councils can help maintain that balance.”

Structures Must be Designed to Evolve One of the strongest messages from the discussion was that resilience depends on early-stage design. Structures put in place quickly, or based on standard documentation, may address an immediate need but can create limitations later if family circumstances or regulatory expectations change. Dan warned against relying too heavily on generic documentation, particularly where families have complex wishes, multiple branches or cross-border beneficiaries. That point is especially relevant for succession planning. Families often begin with an informal understanding between the wealth creator and the next generation, but as families grow, marry, relocate and diversify, informal arrangements become harder to sustain.

Darren also emphasised the value of building succession into governance rather than treating it as a separate exercise. This can involve successor directors, allowing younger family members to observe meetings and giving the next generation exposure to decision-making, which can help avoid a “cliff-edge moment” when a founder or senior family member passes away.

Jurisdictional Choice Should Follow the Family’s Needs The panel also explored the relationship between asset location and governance location. Recent years have seen growth in the use of UAE foundations, particularly among local families seeking familiar structures that allow them to retain involvement and transact efficiently. At the same time, geopolitical uncertainty and the practical experience of managing global assets have prompted some families to consider the benefits of diversification. For some, that may mean pairing regional structures with governance in jurisdictions such as Jersey or Guernsey. For others, it may involve a blended approach across the UAE, the Channel Islands, the BVI, Cayman or Asia, depending on where assets, beneficiaries and advisers are located. Legal and regulatory suitability is only part of the assessment. Structures also need to be practical to manage, with decision-makers, advisers and fiduciaries able to instruct, consider and execute matters in a timely way. A BVI or Cayman structure may work well from a legal framework perspective, for example, but advisers must also consider whether it makes sense operationally if key family members or decision-makers are in very different time zones. If delays become a recurring feature of the structure, families may lose confidence in it, even where the underlying legal framework remains appropriate. The key is not to begin with the location of the structure, but with how it needs to work in practice. A jurisdiction-agnostic approach allows advisers and trustees

to ask more useful questions: where key decision-makers live, where assets are located, where beneficiaries may become resident, how quickly decisions may need to be made and what level of substance, reporting or banking support will be required.

Succession Planning Must Reflect Culture, Law and Family Intention For Middle Eastern families, planning may need to take into account Shari’a principles, common law concepts, or a hybrid approach. The panel discussed the importance of avoiding assumptions and understanding what the family wants to achieve. In practice, structures can often be designed to reflect Shari’a-compliant outcomes, hybrid arrangements or distinct approaches for different asset pools and family branches, subject to appropriate legal and tax advice. The important point is clarity- families need to understand how succession principles will apply, what will happen on the death or incapacity of a key decision-maker and how different beneficiaries will be treated.

A More Deliberate Approach to Offshore Structuring The discussion made clear that the future of offshore structuring is not about choosing between local control and offshore resilience. It is about designing structures that connect the two in a coherent and practical way. For families, that means starting with purpose: what the structure is intended to protect, how the family wants decisions to be made and what continuity should look like across generations. For advisers, it means coordinating legal, tax, fiduciary and administrative input from the outset, rather than layering solutions onto a structure after problems emerge. The most resilient structures are those that are clearly designed, properly governed, and regularly reviewed. They give families enough flexibility to adapt, enough structure to avoid fragmentation and enough professional oversight to meet regulatory and operational requirements.

Please contact dan.toft@praxisgroup.com, darren.toudic@praxisgroup.com or tom.zierer@praxisgroup.com to find out more about Praxis’ Private Wealth services.

ThoughtLeaders4 Middle East Magazine • ISSUE 3

60 SECONDS WITH... DOMINIC DE MARIVELES CHIEF COMMERCIAL OFFICER

PRAXIS hat is one work related goal you W would like to achieve in the next five years?

hat has been the best piece of W advice you have been given in your career?

o continue building a genuinely T international platform that can support clients wherever their personal, family or business interests take them. The needs of private clients, family offices and corporate structures are becoming more sophisticated, particularly as regulation, governance and crossborder planning continue to evolve. The opportunity is to combine technical expertise with commercial judgement, so advisers and clients feel supported in making confident long-term decisions.

o the job at the level above before D asking for the title. In a client-led business, progression comes from demonstrating judgement, ownership and consistency before they are formally required of you.

hat cause are you passionate W about? upporting young entrepreneurs and S emerging business leaders through mentoring and soft-skills development. Ambition and technical knowledge are important, but so are confidence, judgement and resilience. Helping people understand how to build trusted relationships, manage opportunity and think commercially is hugely rewarding. ou relocated last year - what are Y you enjoying most about living in Dubai? ubai has an energy that is hard to D replicate. It is ambitious, international and highly entrepreneurial, which makes it a natural place to speak with families, advisers and business owners who are thinking globally. I also value the courtesy and sense of safety here; it creates a strong environment in which to live, work and build long-term relationships.

What is the best film of all time? he Founder, about Ray Kroc and T McDonalds. The story is controversial, but the film is a fascinating study of ambition, scale, brand discipline and execution.

hat is one important skill that W you think everyone should have? he ability to build relationships in T person. In private client and advisory work, trust is built over time through judgement, consistency and genuine understanding. Technology is valuable, but it cannot replace the nuance of a strong professional relationship. hat are your go to relaxing W activities to destress after a long day at work? walk with my wife and our two A dogs, ideally without my phone. It is a simple way to switch off, get some fresh air and create a little space from the pace of the working day.

hat do you see as the most W rewarding thing about your job? elping teams across different H jurisdictions bring the right expertise together for clients. Great service is rarely about one discipline in isolation; it often involves private wealth, corporate administration, governance and international structuring working together. Seeing colleagues collaborate across markets is a real privilege. ow do you deal with stress in H your work life? I try to pause before responding. Taking time to think usually leads to a better answer, especially when clients or advisers are dealing with complex, multi-jurisdictional matters. Being busy is not the same as being effective, and maintaining perspective is essential.

Forward thinking A leading independent provider of private wealth and corporate services, we work with individuals, families and international corporate clients. Operating from offices in Dubai and Abu Dhabi, our 20-strong multi-disciplinary teams meet the challenges of the most complex structures, and provide a knowledgeable, personal service that delivers peace of mind. By delivering tailored solutions on the ground, we empower our clients to succeed in both local and global markets.

praxisgroup.com PraxisIFM Trust Limited Company Registration Number 000000255. Regulated by the Financial Services Regulatory Authority in Abu Dhabi Global Market to provide Trust Services (as a Trustee of an express trust) and act as the administrator of a Collective Investment Fund pursuant to the Financial Services and Markets Regulations 2015. Licensed by the Abu Dhabi Global Market to provide Company Service Provider services (including the provision of Foundation Services).

ThoughtLeaders4 Middle East Magazine • ISSUE 3

FIRESIDE CHAT WITH...

Authored by: John Medina (Group Head of Private Wealth) - Praxis

Q: What does Praxis’ latest STEP Private Client Awards shortlisting mean to the firm? The STEP Private Client Awards are among the most respected accolades in the international private wealth profession and are widely regarded as a benchmark for excellence, because they are judged by experienced practitioners who understand what good fiduciary work looks like. To be shortlisted for Trust Company of the Year (Large Firm) for the third consecutive year is something we are genuinely proud of. Recognition from independent peers carries real significance because it reflects the quality of our people, our professional standards and the consistency of the service we provide to clients and their advisers. Ultimately, it is recognition of the relationships we have built over many years and the trust our clients place in us.

Q: Why do you think the firm continues to be recognised? I think consistency is a major factor. For more than 50 years, Praxis has remained focused on independent fiduciary services while continuing to evolve alongside our clients. Families are increasingly international, regulations continue to change and structures have become more sophisticated, but our approach has remained remarkably consistent: provide sound advice, exercise good judgement and build relationships that last. At the same time, we continue to invest in our people, technology and international capability because standing still is not an option.

respected peers within the profession recognise the quality of a firm’s work, governance and service. For advisers introducing clients to a long-term fiduciary partner, that additional reassurance can be valuable. Awards cannot replace due diligence, but they provide useful validation of a firm’s standards, expertise and commitment to professional excellence. For clients and advisers choosing a long-term fiduciary partner, that external recognition can offer additional confidence in the depth and consistency of the service being provided.

Q: What differentiates Praxis in today’s private wealth market?

Q: Why is independent recognition such as the STEP Awards important to clients and their advisers?

Our independence is fundamental. It allows us to focus on what is right for each client and to work collaboratively with advisers rather than promoting proprietary products or predetermined solutions.

Independent recognition provides useful validation. It demonstrates that

Equally important is our culture. Clients work with experienced decision-makers

ThoughtLeaders4 Middle East Magazine • ISSUE 3 who remain closely involved throughout the relationship. Many of our senior people have spent decades with the business, which provides continuity that is increasingly rare within our industry.

Q: What should advisers look for when selecting a fiduciary partner for their clients?

Q: How does an independent business model benefit clients?

Technical expertise is expected, but what really distinguishes a fiduciary partner is judgement, responsiveness and the ability to work collaboratively with the client’s wider advisory team.

Independence allows us to remain objective. Our role is to understand what a family is trying to achieve over the long term and work alongside their legal, tax and investment advisers to help deliver those objectives. Because we are not constrained by product agendas or ownership structures, we can concentrate on providing impartial fiduciary advice and long-term stewardship.

Q: What trends are you seeing among Middle East families and family offices? We are seeing families becoming increasingly international, not simply in where they invest but in how they live, educate future generations and organise family wealth. That naturally creates greater emphasis on governance, succession planning and decision-making across multiple jurisdictions. Many family offices are also becoming more institutional in their outlook, with greater focus on continuity, resilience and preparing the next generation to assume leadership responsibilities.

Q: What should Middle East families consider as their wealth becomes more international? International structures should reflect the reality of how a family operates rather than simply where assets are located. Good governance, clearly defined decision-making and succession planning become increasingly important as families grow across generations and borders. The strongest structures are those that provide both protection and flexibility, allowing families to adapt as circumstances evolve.

For advisers, trust is paramount. They need confidence that their clients will receive thoughtful advice, excellent service and absolute respect for the relationships they have spent many years building.

Q: You have spent more than 30 years at Praxis and are widely recognised across the industry. What has kept you motivated throughout your career? Over three decades, I have been fortunate to work with families across generations, often supporting children and grandchildren of clients I first met many years ago. That continuity is one of the most rewarding aspects of this profession. The technical landscape has changed enormously during my career, but trust, integrity and good judgement remain as important today as they were when I joined Praxis.

Q: Why is the Middle East strategically important to Praxis? The region is home to some of the world’s most sophisticated entrepreneurial families and family offices, many of whom have increasingly international interests. Over many years we have invested in building relationships across the Gulf and developing local capability, allowing us to combine international fiduciary expertise with a strong understanding of the regional business and cultural environment.

Q: What advice would you give to an adviser meeting an internationally mobile family for the first time? Don’t begin with structures. Begin by understanding the family - their ambitions, how decisions are made and what success looks like for them. Once those conversations have taken place, the appropriate legal and fiduciary structures usually become much clearer. That approach has served me well throughout my career, and I believe it continues to be the foundation of successful long-term relationships.

Q: Looking ahead, what will define excellence in private wealth over the next five years? Technology will undoubtedly continue to improve efficiency and provide better information, but it will never replace experience. As families become more international and their affairs more complex, the firms that stand apart will be those able to combine technical expertise with deeply rooted client relationships. Understanding family dynamics, listening carefully and exercising sound judgement will remain just as important as understanding the legal and regulatory framework.

Independent. Owner-managed. Built for generations. Headquartered in Jersey, with offices in Dubai, Kuwait, Singapore and Madeira, Fairway is committed to delivering client-centric solutions that endure. We offer seamless, director-led services and bespoke fiduciary, family office and wealth structuring solutions to internationally minded families and their advisers. Our award-winning team combines innovative solutions with administrative and technical excellence, ensuring each client's unique needs are met with precision and care. Trusted by international families across the Gulf and beyond, our services are tailored to manage and transfer family wealth across generations. Our offerings are designed to support long-term family wealth preservation and succession planning.

Consciously independent.

Jersey | Dubai | Kuwait | Singapore | Madeira E: privateclient@fairwaygroup.com T: +44 (0)1534 511700 Fairway comprises a number of companies operating in multiple jurisdictions, for further information on the regulatory status of our group companies, please visit fairwaygroup.com/legalandregulatory

ThoughtLeaders4 Middle East Magazine • ISSUE 3

| Selborne Chambers Supplement |

FRAUDULENT MISREPRESENTATION

RECENT DEVELOPMENTS ON ELEMENTS, PROOF, CAUSATION AND REMEDIES Authored by: James Newman (Barrister) - Selborne Chambers Given the DIFC’s status as a leading international financial centre operating within a common law framework, fraudulent misrepresentation claims assume particular importance in its courts. Commercial parties entering transactions in the DIFC routinely rely on pre-contractual statements concerning financial performance, investment risk, regulatory compliance, corporate authority, and asset values. The integrity of those representations is fundamental to market confidence. Where parties are induced into transactions by dishonest statements, the DIFC Courts have shown a willingness to deploy the full range of remedies available under the DIFC Law of Obligations, including rescission and damages in deceit, while drawing extensively on established English common law principles. The relevance of fraudulent misrepresentation in the DIFC has increased alongside the growth and sophistication of the jurisdiction’s financial and commercial disputes. Recent cases before the DIFC Courts have involved allegations of

fraudulent inducement in trade finance facilities, investment products, real estate transactions, and professional advisory relationships. These disputes demonstrate that questions of honesty, inducement, reliance, and causation frequently arise at the heart of highvalue commercial litigation. The courts have emphasised both the seriousness of allegations of fraud and the need for cogent evidence to support them, while recognising the public interest in ensuring that parties do not retain benefits obtained through deception. The DIFC’s legal framework is particularly well suited to the development of this area of law. Chapters 4 and 5 of The DIFC Law of Obligations expressly recognises claims based on misrepresentation and deceit, and the DIFC Courts regularly look to English authorities when interpreting these provisions. DIFC decisions such as GFH Capital Ltd v Haigh and Others, Alawwal Capital JSC v Rasmala Investment Bank Limited [2023] DIFC CFI 038 Obie v Osric CFI 095/2025 have reaffirmed key principles concerning inducement,

materiality, rescission, limitation periods in fraud cases, and the distinction between fraudulent and non-fraudulent misrepresentation. In doing so, the courts have contributed to a growing body of jurisprudence that provides valuable guidance to investors, financial institutions, corporate entities, and legal practitioners operating within the jurisdiction. Against that backdrop, an examination of recent developments in fraudulent misrepresentation is not merely of academic interest. It is directly relevant to the conduct of business within the DIFC and to the litigation strategies adopted by parties seeking to vindicate their rights in one of the region’s foremost commercial courts. This article considers those developments, focusing on the elements of the tort, the evidential burden associated with proving dishonesty, the principles governing inducement and causation, and the remedies available where fraud is established. Fraudulent misrepresentation remains a potent and exacting cause of

ThoughtLeaders4 Middle East Magazine • ISSUE 3 action. It carries a high threshold on dishonesty, a relatively generous approach to causation and inducement, and a remedial arsenal that tends to favour claimants once fraud is established. Recent authorities have refined the constituent elements and practical contours of the tort, while reinforcing the distinctive features that set fraud apart from negligent and innocent misrepresentation. This article considers those developments, focusing on the elements of the tort, the standard of proof and the inference of dishonesty, causation and inducement, and the scope of remedies, with particular reference to Bell v Singh [2022] EWHC 3272 (Comm), Groen v Heath [2024] EWHC 1654, Takhar v Gracefield Developments Ltd [2024] EWHC 1714 (Ch) and [2020] A.C. 450, BV Nederlandse Industrie van Eiprodukten v Rembrandt Enterprises Inc [2018] EWHC 1857 (Comm), and Man Nutzfahrzeuge AG v Freightliner Ltd [2005] EWHC 2347 (Comm).

The Core Elements of Fraudulent Misrepresentation The modern touchstone remains Derry v Peek (1889) 14 App.Cas.337: a representation is fraudulent if it is made knowingly, without belief in its truth, or recklessly as to whether it is true or false. From this definition flow the core elements: 1. A representation of fact (including statements of present intention) that is false. 2. Knowledge of falsity, lack of honest belief, or recklessness as to truth. 3. Intention that the claimant rely on it. 4. Actual and induced reliance by the claimant. 5. Resultant loss. Courts distinguish carefully between false statements of existing fact and promissory statements about the future. However, a statement of future intention is actionable if, when

made, the representor lacked that intention. Equally, half-truths and misleading omissions can amount to misrepresentation where a duty arises to correct a statement that has become false by supervening events. In commercial contexts, the representor’s state of mind and corporate knowledge are often central. Companies act through individuals; the dishonest state of mind must be established in those whose knowledge and actions are attributable to the company for the relevant transaction. This attribution analysis is fact sensitive and tends to turn on who was the controlling mind in relation to the impugned statements.

The High Threshold for Dishonesty and the Standard of Proof Although the standard of proof in civil fraud is the balance of probabilities, the seriousness of the allegation requires cogent evidence commensurate with the gravity of the allegation. That does not raise the standard; rather, it reflects the common-sense proposition that improbable conduct calls for more convincing proof. The dishonesty threshold itself remains demanding: the claimant must show that the defendant did not honestly believe the statement was true or was reckless as to truth, which is a species of dishonesty. In Groen v Heath, the court’s approach illustrates the insistence on clear evidence of dishonesty rather than mere negligence or over-optimism. The court scrutinised contemporaneous documents and conduct to determine whether the representor truly held the belief professed at the time, rejecting attempts to retrofit honesty by ex post rationalisations. The judgment underscores that recklessness entails a conscious disregard of the risk that the statement is false; a failure to make reasonable enquiries, without more, does not suffice. Where defendants put forward a positive case of honest belief, the court will interrogate the plausibility of that belief against objective material, but the inquiry remains focused on subjective honesty at the time of the representation. Takhar v Gracefield Developments Ltd, although procedurally focused, powerfully reinforces the policy that fraud unravels all. The Supreme Court confirmed that a party who seeks to set aside a judgment on the ground that it was obtained by fraud need not show

| Selborne Chambers Supplement | that the fraud could not have been discovered with reasonable diligence before the original trial. This principle reflects the distinct moral quality of fraud and the courts’ unwillingness to allow a dishonest party to retain an advantage secured by fraud. While Takhar is not itself a misrepresentation case, it signals the judiciary’s steadfast stance on dishonesty: where fraud is proved, the law will accommodate robust corrective measures. Man Nutzfahrzeuge AG v Freightliner Ltd further highlights the court’s readiness to find fraud where the representor shuts their eyes to the obvious. In that case, the analysis emphasised that recklessness is not a mere failure to check; it is a conscious decision to speak indifferent to the truth. The case is frequently cited for the proposition that deliberate abstention from inquiry, designed to avoid confirmation of falsity, can be tantamount to knowledge of falsity. The practical lesson is that pleading and proving fraud demands meticulous pleading of the knowledge limb. Claimants must identify the individuals responsible, the content and context of the representation, the specific facts showing absence of honest belief, and the causal link to reliance and loss. Defendants, for their part, should be prepared to evidence contemporaneous grounds for belief and the process by which the statement was formed.

Causation and Inducement: A Distinctive and Claimant-Friendly Approach The causation and inducement rules in fraudulent misrepresentation are notably favourable to claimants. Once a materially false representation is proved and shown to be fraudulent, the law adopts a presumption of inducement where the representation was of a kind likely to induce a person to act, and the claimant did in fact act. The claimant need not prove that the misrepresentation was the sole or even predominant cause of entry into the contract; it suffices that it was a real and substantial cause. Bell v Singh is instructive on inducement and the practicalities of proof. The court accepted that in commercial dealings multiple factors inform decision-making, but reaffirmed that the representation need only be one of the causes that

ThoughtLeaders4 Middle East Magazine • ISSUE 3 materially contributed to the decision. The claimant’s burden is to establish factual reliance. This can be done by witness testimony supported by contemporaneous documents. Where a representation is fraudulently made, the court is generally disinclined to allow arguments that the claimant’s reliance was unreasonable. The wellsettled position is that reasonableness of reliance is not an element in fraud; even a gullible claimant may recover, provided the claimant was in fact induced. Disclaimers and non-reliance clauses are scrutinised with particular rigour in a fraud setting, given the policy that parties cannot contract out of liability for their own fraud. Man Nutzfahrzeuge AG v Freightliner Ltd also speaks to causation, in that the court will not require the claimant to conduct hypothetical inquiries into what would have occurred absent the misrepresentation with unrealistic precision. The test remains whether the misrepresentation materially influenced the claimant’s decision. Defendants’ attempts to argue that the claimant would have proceeded in any event face a high evidential bar, particularly where the fraud concerned matters fundamental to price, risk, or contractual allocation. The modern emphasis is on a practical evaluation of business decision-making. Courts recognise that commercial parties often proceed at pace and on imperfect information. Where the representor’s dishonesty has tainted the negotiation, causation will commonly be found, and only clear evidence that the claimant placed no weight on the false statement will defeat inducement.

Remedies: Rescission, Damages in the Tort of Deceit, and the Measure of Loss Remedies for fraudulent misrepresentation are both flexible and generous. The primary remedies are rescission of the contract and damages in the tort of deceit. They may be claimed cumulatively, subject to election and bars to rescission. The remedial themes in recent cases continue to favour claimants once fraud is established. Rescission remains available subject to the familiar bars: affirmation, lapse of time, impossibility of restitutio in integrum, and intervention of thirdparty rights. Takhar v Gracefield Developments Ltd, while not a

rescission case, exemplifies the breadth of the court’s equitable response to fraud by enabling judgments procured by fraud to be revisited. In the contractual sphere, courts lean against allowing technical bars to defeat rescission where the representor acted dishonestly, especially where counterrestitution can be achieved through monetary adjustments. The damages measure for deceit is particularly favourable. Claimants are entitled to be put in the position they would have been in had the representation not been made, measured on a tort basis. This generally means all losses directly flowing from having been induced to enter the transaction, even if those losses were unforeseeable, provided they are not too remote in the sense of being wholly unrelated to the deceit. The principle that the tortfeasor takes the victim as found, coupled with the absence of a foreseeability limitation akin to Hadley v Baxendale, makes deceit damages markedly more generous than contractual damages. Man Nutzfahrzeuge AG v Freightliner Ltd is a leading authority on the tort measure. The court affirmed that remoteness in deceit is limited only by causation; foreseeability is not the governing constraint. Once causation is established, the claimant can recover the difference between the value paid and the value received, plus consequential losses flowing from entering the transaction. The availability of interest, and sometimes compound interest in equity where appropriate, can further augment recovery. BV Nederlandse Industrie van Eiprodukten v Rembrandt Enterprises Inc provides a transatlantic commercial backdrop but applied English law principles to misrepresentation and the allocation of risk. The decision highlights the continued judicial reluctance to allow entire agreement, non-reliance, or limitation clauses to stifle recovery for fraud. Clauses purporting to exclude liability for misrepresentation will be read subject to the Misrepresentation Act 1967 and the common law rule that fraud cannot be excluded. Sophisticated contractual drafting can narrow the scope for innocent or negligent misrepresentation claims, but it cannot defeat liability for deceit. Where fraud is made out, courts will construe ambiguous contractual provisions against the wrongdoer and in favour of effective remedies.

| Selborne Chambers Supplement | importance of pleading an alternative claim in deceit, even where a Misrepresentation Act claim is pursued, to secure the more advantageous tort measure; careful attention to the timing and form of affirmation to avoid bars to rescission; and strategic consideration of whether rescission remains practicable or whether damages alone should be pursued. The availability of rescission ab initio can be particularly valuable in cases involving long-term obligations or ongoing exposure that the claimant wishes to terminate entirely.

The Evidential Architecture: Documents, Process, and Inference Recent cases reiterate that fraud is proved from the totality of the evidence, with contemporaneous documents and objective probabilities playing a central role. In Groen v Heath, the court tested the asserted honest belief against what was known, what inquiries were made or deliberately not made, and whether the representor’s conduct was consistent with honesty. The court drew the line between carelessness and dishonesty by reference to purposeful indifference to truth. The inferences available from hurried transactions, compressed negotiations, and onesided information flows will depend on the commercial realities. However, where the representor controls critical information and fails to disclose known adverse facts while making positive statements, courts are more readily prepared to infer dishonesty. In Bell v Singh, the treatment of witness credibility is salient. Fraud trials often turn on subjective states of mind, and courts look for alignment between oral evidence and documents. Inconsistencies, selective memory, and reconstruction are treated with caution. Parties should expect vigorous testing of their accounts, and they should marshal documents that demonstrate a genuine basis for any belief professed at the time. For corporate defendants, board minutes, internal emails, due diligence files, and audit trails can be decisive. Equally, claimants should assemble a timeline connecting representations to decision points, approvals, and payments to anchor inducement.

Practice points flowing from recent cases on remedy include the

ThoughtLeaders4 Middle East Magazine • ISSUE 3 such as freezing orders to preserve assets pending trial. Allegations of fraud also carry reputational and regulatory consequences; parties should anticipate, and be prepared for, elevated judicial scrutiny of pleadings and evidence.

Contractual Risk Allocation and Fraud Commercial contracts frequently contain non-reliance statements, entire agreement clauses, and sophisticated limitations. BV Nederlandse v Rembrandt underscores that, while such provisions can be effective to structure the factual matrix and limit non-fraud claims, they cannot immunise fraud. The Unfair Contract Terms Act 1977 and the Misrepresentation Act 1967 constrain exclusion of liability for misrepresentation, and the common law renders clauses purporting to exclude fraud ineffective. Courts will also resist attempts to re-characterise deceit as a warranty claim confined by contractual caps. Where fraud is pleaded and proved, limitation and exclusion clauses are interpreted strictly, and the fraudulent party cannot rely on them to curtail liability in deceit. That said, careful drafting can influence the inducement analysis. Detailed non-reliance statements and prescribed due diligence procedures may help a defendant argue that the claimant in fact did not rely on the alleged representation. But these are questions of fact rather than law. In fraud, reasonableness of reliance is not an element, and the presence of non-reliance wording is not conclusive. The decisive issue remains whether the misrepresentation was a real and substantial cause of the claimant’s entry into the contract.

Comparative Note on Procedural Consequences Takhar v Gracefield signals an enduring procedural latitude where fraud is alleged and evidenced. Post-judgment relief remains available to prevent abuse of process by fraudsters. In the interlocutory arena, courts may be more inclined to order disclosure directed at the representor’s knowledge and internal deliberations, given their centrality to the dishonesty inquiry. Where there is a real risk of dissipation, claimants may obtain interim remedies

Key Takeaways The recent authorities reaffirm several settled but vital propositions: • Elements: Fraud requires a false representation, dishonest state of mind (knowledge, lack of belief, or recklessness), intention to induce, actual inducement, and loss. Corporate attribution remains case specific. • Standard of proof and dishonesty: The standard is the balance of probabilities, but cogent evidence is required. Courts look for contemporaneous support for honest belief. Recklessness is conscious indifference to truth, not mere carelessness. Fraud unravels all, as Takhar confirms in the procedural context.

| Selborne Chambers Supplement | Fraudulent misrepresentation remains a challenging claim to advance but, when proved, it carries formidable consequences. The recent decisions demonstrate a consistent judicial posture: dishonesty will be exactingly examined, but once established, the law responds with powerful remedial tools designed to restore the victim and to deter fraudulent conduct. The practical implications for transactional lawyers and litigators alike are clear. Diligent verification and accurate statements are paramount in negotiations. For claimants, careful evidence-gathering on inducement and state of mind is decisive; and for defendants, contemporaneous records evidencing honest belief are the best defence. The courts’ message endures: in fraud, the threshold is high, but the remedies are generous.

James Newman (Barrister) - Selborne Chambers

• Causation and inducement: The claimant-friendly presumption operates once a material fraudulent statement is shown. The misrepresentation need only be a real and substantial cause; unreasonableness of reliance is not a defence. Bell v Singh and Man Nutzfahrzeuge illustrate the approach. • Remedies: Rescission is available subject to limited bars, with courts reluctant to allow technicalities to shield fraud. Damages in deceit are generous: the tort measure allows recovery of all losses directly flowing from the inducement without a foreseeability cap. Contractual clauses cannot exclude liability for fraud, as reinforced in BV Nederlandse v Rembrandt. • Practice: Plead the knowledge limb with precision, identify the individuals whose states of mind are in issue, assemble documentary evidence, and consider early strategic choices regarding rescission and deceit damages. Robust case management is essential.

ThoughtLeaders4 Middle East Magazine • ISSUE 3

| Selborne Chambers Supplement |

60 SECONDS WITH... BARNABY HOPE BARRISTER

SELBORNE CHAMBERS

hat has been the most W valuable lesson you’ve learned in your career? ot to think “that will do”. N It is both a privilege and a responsibility to be part of a profession which demands the highest standards. hat aspect of your W work do you find most rewarding?

hat industry trend are W you most excited about over the next five years?

I f you could have dinner with any historical figure, who would it be and why?

( slight rephrasing of question) Whether people can resist the temp

eneca. Practical S philosopher and by all accounts a complex and interesting person.

hat is the best piece W of advice you have ever received? Don’t be lazy.

elping people. Cliché H but true. I f you could travel anywhere in the world tomorrow, where would you go?

hat is one book that W has had a lasting impact on you? East of Eden.

hat is a hobby or W interest that people might be surprised to learn you have? Drum and bass music.

he Canadian lakes with T my wife and dog. hat quality do you W believe is essential for success in your profession?

hat advice would you W give to someone starting their career today? Don’t be lazy.

commitment to the A highest standards of work product, integrity and service. 22

ThoughtLeaders4 Middle East Magazine • ISSUE 3

| Selborne Chambers Supplement |

ENFORCING AWARDS AGAINST GCC-LINKED WEALTH

RECOGNITION, EXECUTION AND THE STRUCTURES IN BETWEEN Authored by: Thomas Williams KC (Barrister) & Natasha Dzameh (Barrister) - Selborne Chambers

Introduction An arbitral award is only as valuable as the assets that can be found and reached to satisfy it. Enforcement is therefore key. There are two stages to this. The first stage, recognition, turns an award into something a court will act on. The second stage, execution, is the harder task of recovering the assets. The distinction is particularly important when dealing with a respondent which holds its assets through a variety of structures and/or is a state or a state-linked entity, which is common in GCC disputes.

Why Enforceability Carries Particular Weight in the Gulf

the outset, and not at the time of the award being made. What follows deals with the English law tools for that.

Family businesses dominate the GCC economy and often run several generations deep. Consequently, a dispute over shareholding or succession rarely stays between the two named parties. Instead, it extends to the wider family, the standing of the family and decades-long banking relationships. In such a setting, confidentiality is worth a great deal and it is much of why arbitration is the preferred route in this market.

In most cases, recognition of foreign awards takes place by way of the New York Convention 1958 (“the New York Convention”), to which there are 172 contracting states.

Confidentiality is not a strategy in and of itself; however, privacy protects the process but it does not assist where an award cannot be turned into money. Gulf wealth generally sits in trusts, foundations and corporate vehicles established in Jersey, Guernsey, the BVI and Cayman, holding assets banked and invested in London, Geneva, Singapore and the United States. Where the award can be enforced is a question to be asked at

Legal Basis

In England and Wales or Northern Ireland, the New York Convention is given domestic effect through Part III of the Arbitration Act 1996 (“the 1996 Act”), namely sections 100 to 104. Section 103 reproduces the Article V grounds on which recognition may be resisted. These include matters such as: there being no valid arbitration agreement, failures in due process, excess of jurisdiction, the award having been set aside at the seat, non-arbitrability and public policy. The last two may be

ThoughtLeaders4 Middle East Magazine • ISSUE 3 raised by the court, whereas the others must be raised by the resisting party. Public policy is often a live issue in the Gulf and, in certain jurisdictions, thought needs to be given to the Sharia overlay.

Since the coming into force of the Arbitration Act 2025 (“the 2025 Act”) on 1 August 2025, one of those grounds has become more difficult to run. Section 103(2)(a) of the 1996 Act, and Article V(1)(a) of the NYC 1958, allow a respondent to argue that the arbitration agreement is invalid under its governing law. The English law position was relatively uncertain on the question of which law governed an arbitration agreement, despite the Supreme Court’s efforts to address the matter in cases such as Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb [2020] UKSC 38, Kabab-Ji SAL (Lebanon) v Kout Food Group (Kuwait) [2021] UKSC 48 and UniCredit Bank GmbH v RusChemAlliance LLC [2024] UKSC 30. Respondents in enforcement proceedings in foreign courts were able to exploit the uncertainty to argue the arbitration agreement was invalid. The 2025 Act inserts section 6A into the 1996 Act. Section 6A(1) of the 1996 Act provides that the applicable law is that expressly agreed by the parties and, where there is no such agreement, it is the law of the seat of the arbitration. It does not apply in the limited circumstances outlined in section 6A(3). This improvement removes a line of attack a respondent could previously open in enforcement proceedings in any New York Convention state.

The Impact of the Arbitration Act 2025 on the English Legal Position Execution is where these cases are fought and three reforms which occurred under the 2025 Act, which applies to arbitral proceedings commenced on or after 1 August 2025, are of particular note: i. Section 67 challenges no longer operate as a procedural weapon for delay. Following Dallah Real Estate & Tourism Holding Co v The Ministry of Religious Affairs, Government of Pakistan [2010] UKSC 46, a party that had participated in the arbitration and lost on jurisdiction before the

tribunal could still obtain a de novo rehearing in the Commercial Court. This meant significant extra time and cost such that, at times, the award creditor would settle at a substantial discount to the award. Section 67 applications were therefore a useful delaying tactic for well-funded respondents regardless of the merits. The 2025 Act implemented changes to section 67 of the 1996 Act, such that section 67(3B)-(3C) stipulate as follows: (3B) Rules of court about the procedure to be followed on an application under this section may, in particular, include provision within subsection (3C) in relation to a case where the application— (a) r elates to an objection as to the arbitral tribunal’s substantive jurisdiction on which the tribunal has already ruled, and (b) i s made by a party that took part in the arbitral proceedings

| Selborne Chambers Supplement | iii. Section 44 of the 1996 Act now encompasses third parties, there being an explicit reference to “any other person”. The court’s power to grant freezing orders, and other interim relief in support of arbitration being extended in such a manner, assists in circumstances where the assets sit with third parties such as banks, nominees or connected companies instead of the respondent. The powers under section 44 apply even where the seat of the arbitration is outside England and Wales or where no seat has been designated or determined, as per section 2(3) of the 1996 Act; however, the court may refuse to exercise its power in the circumstances set out therein. The English part of a system that otherwise still runs on 1958 architecture has been materially improved, and should make English seated arbitrations especially attractive to GCC clients.

(3C) Provision is within this subsection if it provides that subject to the court ruling otherwise in the interests of justice— (a) a ground for the objection that was not raised before the arbitral tribunal must not be raised before the court unless the applicant shows that, at the time the applicant took part in the proceedings, the applicant did not know and could not with reasonable diligence have discovered the ground; (b) e vidence that was not put before the tribunal must not be considered by the court unless the applicant shows that, at the time the applicant took part in the proceedings, the applicant could not with reasonable diligence have put the evidence before the tribunal; (c) e vidence that was heard by the tribunal must not be re-heard by the court.” Clearly, there are now serious restrictions on jurisdictional challenges and there will be very few instances where the Court considers it in the interests of justice to allow an oral rehearing of witnesses. ii. Emergency arbitrators are able to make peremptory orders and English courts can exercise their powers in support of such orders.

Reaching Assets Held Through Others The third reform is of particular importance because of how GCC wealth is usually held. The award is against one entity, yet the assets are in the name of another. A holding company owns the shares, a nominee holds the account, a foundation sits above both and the respondent has little or no assets of its own. English law has two long-standing answers and the 2025 Act has made both easier to deploy in support of an arbitration. The Chabra jurisdiction (TSB Private Bank International S.A. v Chabra and another [1992] 1 W.L.R. 231) enables the English courts to make a freezing order in respect of assets held by persons against whom there is no cause of action, provided there is a good arguable case that such persons hold assets beneficially owned by the defendant or that the defendant has substantive control or a claim in respect of them. That is often the position of special purpose vehicles or nominees. It is also a requirement that assets are available for enforcement and it is just

ThoughtLeaders4 Middle East Magazine • ISSUE 3 and convenient to grant relief. When dealing with a respondent located outside of the jurisdiction of England and Wales, it is also necessary to bear in mind the provisions within Practice Direction 6B of the Civil Procedure Rules 1998 relating to the service ‘gateways’, and the lessons to be learned from Gilbert v Broadoak Private Finance Limited [2026] EWHC 153 (KB) (where the court held that the absence of a service gateway was a bar to Chabra relief). Disclosure is often also necessary and Bankers Trust Orders can be of great assistance. The banking records can help in demonstrating whether the structure on paper accords with where the money actually went.

Where the Respondent Is a State or State-Linked Entity Disputes in the Gulf are more likely to involve state-linked counterparties than in other jurisdictions, given the extent in the Gulf of sovereign wealth funds, state-owned enterprises and other entities with state connections. As a matter of English law, due to the State Immunity Act 1978 (“the SIA 1978”), a state does not have immunity in respect of proceedings in the courts of the United Kingdom relating to an arbitration where the state agreed in writing to submit a dispute which arose, or may arise, to arbitration. This is subject to contrary provisions in the arbitration agreement and does not apply to such agreements as between states. Whilst securing a judgment against a state seems relatively straightforward under English law, execution is a different matter. Ultimately, unless state property is in use for commercial purposes at the relevant time or intended for such use, or the state has consented in writing, it will not be reachable. Whether state property is in use for commercial purposes is far from a straightforward matter, as observed in cases such as SerVaas Inc v Rafidain Bank [2012] UKSC 40. There may well also be a question as to the applicability of immunity and whether the property can even be considered state property, depending on how it is held. State-owned enterprises do not automatically benefit from immunity and the provisions of the SIA 1978 must be carefully considered.

| Selborne Chambers Supplement |

Tactical Considerations Once an award has been rendered, it is often the case that assets have already been dissipated. A new holding company may be interposed so that the award debtor owns nothing directly. Assets may be sold to a connected entity below their value. A charge may be granted to a connected creditor, such that it ranks ahead of an enforcement creditor. Cash may be moved to a jurisdiction with no enforcement co-operation. The award creditor is then faced with a structure which differs substantially from that at the start of the arbitration. There are various steps which can be taken to mitigate against this. An asset map should be put together when the seat is chosen, long before a dispute occurs, and updated before the notice of arbitration is served. When dealing with an offshore respondent, it is wise to obtain advice from local counsel in each relevant jurisdiction before proceedings are started, pinpointing what assets are where, and what enforcement methods are available. Where the respondent is a state or a state-linked entity, it is essential to consider the extent of any immunity and the property which is currently in use for commercial purposes. Establishing the position as early as possible is always preferable.

Thomas Williams KC (Barrister) - Selborne Chambers

Natasha Dzameh (Barrister) - Selborne Chambers www.selbornechambers.co.uk

ThoughtLeaders4 Middle East Partner The quality of barristers makes me return to using them again and again. Chambers, UK Bar Guide

An absolutely excellent set of chambers where responsiveness is superb. Chambers, UK Bar Guide

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Their barristers provide advice and advocacy in domestic and international cases and arbitrations and are highly regarded for handing complex, high-value, and often crossborder cases in these areas. Selborne is praised for providing clear, practical and innovative advice and is always mindful of clients’ commercial considerations.

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ThoughtLeaders4 Middle East Magazine • ISSUE 3

NAVIGATING FINANCIAL DISTRESS IN TIMES OF UNCERTAINTY

A PRACTICAL GUIDE FOR UAE BUSINESSES Authored by: Paul Leggett (Partner) & Jennifer Frenis (Director) - Deloitte Businesses across the UAE are operating in an environment shaped by geopolitical and economic uncertainty. While the region has historically demonstrated resilience supported by strong fiscal policy, strategic diversification, and an ability to adapt quickly to external pressures, the current situation is beginning to exert challenges across multiple sectors. In this context, the ability to identify early warning signals and act decisively is not simply good management practice, it is a critical determinant of resilience. Importantly, many businesses might not yet be suffering from financial distress, but they may be on a path towards it if early warning signs are not identified and addressed.

Logistics and Supply Chain Setbacks As a global trade hub, the UAE is particularly exposed to disruption in logistics and trade flows. Heightened regional tensions are affecting key shipping routes and air corridors, leading to delays in the movement of goods and increased freight and insurance costs. For businesses reliant on efficient inventory turnover, these disruptions may result in longer working capital cycles, margin erosion, and reduced liquidity.

Real Estate and Construction Property developers and contractors may begin to experience cashflow constraints considering the following pressures: • Project delays driven by supply chain disruption and increased material costs

Emerging Pressures Across Key Sectors While the impact of the current environment is still unfolding, early indicators are emerging across several areas and sectors in the UAE.

and will be placing pressure on business margins. For several businesses – and particularly those with energy intensive operations or more complex supply chains – these rising costs may be difficult to pass on to customers. This may contribute to a decrease in profitability, deteriorating cash flow, and the need to reassess pricing strategies, cost structures, and short-term funding requirements.

• C ontractor margin compression, particularly where fixed-price contracts are in place

Rising Input and Operating Costs Volatility in oil prices is feeding into fuel, transport, and broader operational costs,

• S lower transaction activity as investors adopt a more cautious, “wait-and-see” approach • P otential softening in off-plan demand, particularly from international buyers

ThoughtLeaders4 Middle East Magazine • ISSUE 3

Consumer Facing Sectors

and may highlight that a business is beginning to lose visibility of its financial performance.

Working Capital Optimization

Softening demand in key sectors such as hospitality, tourism, and retail are experiencing reduced footfall and occupancy rates as international travel is reduced, and residents and consumers may have adopted a more cautious approach to spending. Given their relatively high fixed cost bases, even short-term disruption can result in immediate liquidity pressure.

Reassessing Asset Values in a Volatile Market

Alongside this, there is often significant opportunity to improve working capital efficiency. Accelerating receivables, optimizing inventory levels, and renegotiating supplier terms can unlock liquidity without the potential need for additional external funding.

Financing and Investment Environment Given the period of uncertainty, it is likely that lenders might be adopting a more cautious approach, with increased monitoring on borrower performance and a greater focus on covenant compliance. Refinancing or new funding processes might be taking longer and might present challenges for businesses that are reliant on continuous funding or project-based financing.

Early Indicators The earlier financial distress is identified, the broader the range of options available to address it becomes, which is critical to preserving value.

Financial Indicators From a financial perspective, businesses may be experiencing declining cash flow generation, pressure on margins, and increased reliance on short-term funding. Receivables may begin to slow, and working capital cycles may lengthen, tying up liquidity at a time when it is most needed.

Businesses should take a proactive approach to reassessing the strength of their balance sheet, particularly given the central role of assets in financing structures. This is especially relevant for sectors with significant fixed assets, such as real estate, construction, and capital-intensive industries. Changes in market conditions may lead to softening real estate valuations, reduced value of investment assets, or lower recoverability of receivables. As a result, adjustments can have a material impact on financial ratios, borrowing capacity, and covenant compliance.

Behavioral Indicators Decision-making may become more reactive, forecasts may lean towards optimism rather than realism, and management information may lack realtime financial insight. These often signal the early stages of financial distress

Cost management might also be essential, but it must be approached thoughtfully. Poorly targeted cost reductions can erode long-term value by undermining core capabilities. The objective should be to eliminate inefficiencies while preserving the elements of the business that drive sustainable performance.

For businesses with asset-backed financing, declines in asset values may trigger loan-to-value breaches or make refinancing more challenging, and in some cases, additional equity or security will be required to maintain existing lending arrangements.

Priority Actions for Stabilization For businesses beginning to experience pressure, early and decisive action significantly improves outcomes.

Stakeholder Communication Open and transparent communication with lenders and suppliers can build trust and create flexibility. In many cases, stakeholders are more willing to provide support when they are engaged early, rather than being presented with a problem at a later stage.

Operational Indicators Operationally, supply chain disruptions may result in longer lead times and increased costs. Businesses that are heavily reliant on a small number of suppliers or customers may find themselves particularly exposed, as concentration risk becomes more evident.

Cost Optimization

Building Resilience in an Uncertain Market Cash Flow Visibility A rolling 13-week cash flow forecast is one of the most effective tools available to management. It provides a forwardlooking view of liquidity, highlights any potential funding gaps, and enables more informed decision-making. Without this level of visibility, businesses are effectively operating without a clear understanding of their liquidity position.

While immediate stabilization is critical, it is equally important for businesses to focus on longer-term resilience, and this requires a shift from reactive management to proactive planning.

Stress Testing Scenario analysis and planning play a central role in this process. By stress testing business models and modelling base, downside, and severe stress

ThoughtLeaders4 Middle East Magazine • ISSUE 3 scenarios, businesses can better understand how their financial position may be impacted under different conditions. This, in turn, allows for the development of contingency plans that can be implemented if required.

Creating Value through Early Intervention and Structured Turnaround Approach There is often a tendency for businesses to delay action until financial pressure becomes acute, which can significantly constrain available options and erode value. Early and structured intervention enables greater visibility over cash flow, clearer assessment of liquidity pressures, and a more informed distinction between short-term constraints and underlying structural challenges. This, in turn, supports more effective prioritization, timely decision-making, and stabilization of performance before issues escalate.

Financial and Cash Flow Management Businesses should prioritize cash visibility and active working capital management, alongside scrutiny of management accounts, including regular reviews of actual performance against budgets and forecasts. Understanding variances and the drivers behind them enables management to respond quickly to emerging pressures and adjust plans accordingly.

A disciplined approach to turnaround also strengthens stakeholder alignment by fostering transparent, credible communication with lenders and shareholders, which is critical in maintaining confidence and enabling viable pathways forward. As financial pressure intensifies, evaluating a broader set of restructuring and refinancing options, alongside contingency planning, becomes essential to preserving optionality. In this context, evolving insolvency frameworks across onshore courts, and specialist offshore courts such as the DIFC, QFC, and ADGM further expand the range of structured solutions available, reinforcing the importance of proactive engagement to protect value and improve outcomes for stakeholders.

Enhance Governance and Reporting Finally, strong governance and timely reporting are essential, and decisionmaking must be based on accurate, forward-looking financial information. This requires robust internal controls, clear roles and responsibilities, and the right skills and expertise to ensure effective oversight. Together, these elements support more informed, timely decisions and help maintain stability during periods of uncertainty.

Byfield – Protecting your Reputation in the Court of Public Opinion When a client is involved in a dispute or investigation, managing public and stakeholder interest is critical. We are specialists in Disputes & Investigations communications. Our team is instructed by claimants and defendants in high profile domestic and international cases, including in the Middle East, across a wide range of business sectors. Clients call on Byfield’s specialist expertise to support their legal strategy, or to provide alternative solutions that help them achieve their objectives.

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ThoughtLeaders4 Middle East Magazine • ISSUE 3

FORCE MAJEURE, FRUSTRATION AND HARDSHIP

THE IMPORTANCE OF CHOICE OF LAW AND RISK ALLOCATION IN UNCERTAIN TIMES Authored by: Catherine Hammerson-Jones (Partner) - Lewis Silkin & Martin Khoshdel (Barrister) - 33 Chambers Regional conflict, sweeping trade tariffs, disrupted supply chains and sanctions are testing businesses which operate across the Middle East and beyond. When a party cannot perform its obligations under a commercial contract, the choice of law governing the contract and key contract clauses allocating risk will determine the relief available, including whether a party can rely on force majeure, frustration or hardship. Unsurprisingly, the boundaries are being tested in litigation.

Force Majeure, Frustration and Hardship The contractual choice of law is crucial to determining the implications of contractual disruption. Focussing on England and Wales, DIFC, ADGM and the UAE Civil Code in particular, the

laws on force majeure, frustration and hardship differ.

In England and Wales and the ADGM (which directly applies English common law) force majeure is not a free-standing doctrine. It exists only if the parties have written it into their contract, and the courts construe clauses strictly in accordance with their terms. Typically, such clauses will provide for certain events outside a party’s control to excuse or modify expected levels of performance and tend to include certain notice requirements and steps to mitigate the impact of the force majeure event. Where there is no force majeure clause (or any other relevant contractual risk allocation), parties are left with frustration, a narrow common

law doctrine that discharges a contract only where performance has become impossible, illegal or radically different from what was contemplated due to an event beyond the parties’ control. Mere increased cost or inconvenience will not do. English law has no general concept of hardship. If a contract governed by DIFC law contains a force majeure clause, then that will likely be interpreted with reference to English law and other common law jurisprudence. In the absence of such clause, Article 82 of DIFC Contract Law excuses nonperformance caused by an unforeseen impediment beyond a party’s control, but expressly not where the obligation is “a mere obligation to pay”. There is no principle of frustration in DIFC law. Looking at the onshore position, the UAE Civil Code has been updated from 1 June 2026 to modernise the

ThoughtLeaders4 Middle East Magazine • ISSUE 3 law, with a new Article 236 providing that a contract will be dissolved in the event that a contractual obligation becomes impossible due to a force majeure event. If performance becomes impossible in part, a party can treat that part as having lapsed or ask the court to rescind the contract. A separate doctrine of hardship (Article 249 of the previous UAE Civil Code and Article 224 of the new UAE Civil Code) allows relief where performance remains possible but has become excessively burdensome, with the court empowered to adjust the bargain. There is a degree of flexibility afforded to the court or arbitrator, albeit before exercising their discretion they would need to be satisfied that the debtor would sustain heavy loss. This may be compared to the English law position which is that a ‘hardship’ principle is not recognised at all, with the Courts being very reluctant to interfere with the parties’ bargain.

Developments of Note The boundaries of these rules have unsurprisingly been the subject of recent dispute. The DIFC Court of Appeal’s decision in The Collection Club Restaurant Limited v MAG Development Services Limited [2026] DIFC CA (24 April 2026) is the first appellate guidance of its kind from the DIFC on force majeure. The retail tenant in this case had defaulted on rent payments on a high-value lease, then sought to rely on the subsequent Dubai floods to invoke force majeure to excuse payment. The lease agreement did not contain an express force majeure clause and consequently the tenants sought to invoke statutory force majeure under Article 82 of the DIFC Contract Law. The Court of Appeal confirmed that an obligation to pay rent is a “mere obligation to pay” outside the protection of Article 82, closing off an attempt to use force majeure tactically as a route out of a payment obligation and providing clarity on the meaning of this phrase. Statutory force majeure would only apply if the obligation is not a ‘simple’ obligation to pay. Therefore,

if there had been a payment obligation by one party which is connected to or accompanied by any other obligation on that same party, then it would be arguable that statutory force majeure could apply, though as always much would depend on the circumstances of the case. Although the factual context of the case concerned lease agreements, the principles considered have general application in DIFC law governed contracts which do not contain force majeure clauses. It was also confirmed by the DIFC Court of Appeal that English law frustration was a distinct principle different to that of force majeure. Moreover, as the DIFC Contract Law was a complete law, and did not encapsulate the doctrine of frustration, the DIFC Court of Appeal stated in obiter that there would be difficulties in establishing that the principle of frustration would have any application in DIFC law. A key case of note in England and Wales is the Supreme Court’s decision in RTI Ltd v MUR Shipping BV [2024] UKSC 18. A shipowner and charterer had agreed monthly shipments with payment due in US dollars. When the charterer’s parent was hit by US sanctions, dollar payment became difficult. The shipowner served a force majeure notice. The charterer offered to pay in euros and cover any conversion costs, which the shipowner refused. The force majeure clause required the affected party to use reasonable endeavours to overcome the impact of the event. The Supreme Court held that reasonable endeavours to overcome a force majeure event do not require a party to accept noncontractual performance absent clear wording to that effect: insisting on the agreed contract terms is neither unmeritorious nor unjust, and forcing parties to accept workarounds would introduce uncertainty and undermine the expectations of reasonable business people. The decision is a stark reminder that, under English law, the bargain as written holds.

Concluding Thoughts The divergent approaches to force majeure, frustration and hardship across jurisdictions underscore the critical importance of careful drafting when entering into cross-border commercial contracts. Parties should give close consideration to the governing law of their agreements and ensure that force majeure clauses are sufficiently comprehensive and tailored to their specific circumstances, particularly given the narrow interpretation such clauses receive in common law jurisdictions. Where a contract is silent on these issues, the available relief will depend entirely on the applicable law. In an era of heightened geopolitical and economic uncertainty, proactive risk allocation through well-drafted contractual provisions is not merely advisable – it is essential.

ThoughtLeaders4 Middle East Magazine • ISSUE 3

TOKENIZATION OF ASSETS IN THE UAE

Authored by: Dr. Laura Voda (Partner) & Florian Herkommer (Junior Associate) - Fichte & Co Legal Real estate tokenization is gaining relevance in the United Arab Emirates (“UAE”), particularly in Dubai, where real estate and other digital asset regulation are developing rapidly. Dubai has advanced this area significantly through the Dubai Land Department’s Real Estate Tokenization Project, which aims to support fractional ownership and create a more transparent framework for tokenized real estate investment. Although the project focuses on real estate, it provides an important example of how tokenization may be connected with existing systems of asset ownership.

Concept of Asset Tokenization and Blockchain Asset tokenization means representing rights relating to an asset, such as real estate, vessels, commodities or receivables, through digital tokens. Depending on the structure, a token may represent ownership, shares in an asset-holding company, fund units, contractual claims or rights to income and sale proceeds.

Tokens are generally issued and transferred using blockchain technology. A blockchain is a shared digital ledger on which transactions are verified and recorded across a network of computers. The records are linked in chronological order and are therefore difficult to alter. This can provide a transparent and auditable record of the issuance, ownership and transfer of tokens. However, ownership of a token does not necessarily amount to legal ownership of the underlying asset. For registered assets such as real estate and vessels, legal title generally remains subject to the relevant public register. The applicable law and transaction documents therefore determine the rights that token holders may enforce.

The UAE as a Jurisdiction for Tokenized Assets The UAE is well positioned for tokenization of real estate and other assets because it combines a developed real estate market, international investor demand and an increasingly sophisticated digital asset regulatory framework.

Dubai Law No. 4 of 2022 established the Dubai Virtual Assets Regulatory Authority, commonly known as VARA. VARA is the competent authority for regulating virtual assets across Dubai’s mainland and free zones, except in the Dubai International Financial Centre (“DIFC”). Depending on the structure, other regulators may also become relevant. If the token resembles a security, fund unit or collective investment product, the UAE federal capital markets regime, as updated by Federal Decree-Law No. 32 of 2025 and No. 33 of 2025, may apply. In the DIFC the Dubai Financial Services Authority (“DFSA”) regimes may apply instead.

Dubai’s Real Estate Tokenization Project In Dubai, real estate ownership is closely linked to registration with the Dubai Land Department (“DLD”) and the relevant title deed under Dubai Law No. 7 of 2006. Against this background, Dubai’s Real Estate Tokenization Project is particularly significant.

ThoughtLeaders4 Middle East Magazine • ISSUE 3 The project was launched by the DLD, together with VARA and other strategic partners, under the REES Real Estate Innovation Initiative. During the pilot phase, the regulatory, legislative and technical framework for tokenization on title deeds was tested. The project is therefore designed to link tokenized ownership with Dubai’s official title deed and real estate registration framework, rather than treating tokens as a purely private record of ownership.

Phase II introduces secondary-market trading, enabling approximately 7.8 million real estate tokens to be resold within a controlled pilot framework. Investors can buy and resell tokens through approved platforms. One example is PRYPCO Mint, which offers a marketplace for buying and selling Dubai property tokens. The purpose of Phase II is to test market efficiency, operational readiness, transparency, governance and investor protection before broader market expansion.

remains linked to registration with the competent land authority. The key issue is what the token holder actually owns, such as registered title, shares in an SPV, distribution rights or only contractual economic exposure.

a) R egulated Special Purpose Vehicles (“SPVs”) Where direct ownership cannot be transferred through a token, projects commonly use an SPV structure. The SPV owns the underlying asset, while investors acquire tokens representing rights in or against the SPV. These rights may include shares in the SPV, rights to dividends, rental or charter income, sale proceeds, voting rights, redemption rights or contractual repayment claims. The SPV structure allows the registered owner of the asset to remain a single legal entity, while investor participation is organized through corporate documents, contractual arrangements and token terms. The choice of jurisdiction of the SPV will depend on the location of the assets and the target investors. The documents must clearly state whether token holders acquire shares, contractual claims, economic rights or another type of interest.

b) Fund and Collective Investment Structures

Private Tokenization Projects Private tokenization projects may involve various assets, including vessels, art or commodities. However, they are generally more difficult to structure than transactions carried out under the DLD’s Real Estate Tokenization Project, as there may be no dedicated regulatory or registration framework directly linking the token to legal ownership of the underlying asset.

A tokenized asset project may also be structured as a fund or collective investment arrangement. Under this model, investors contribute capital to a pooled vehicle that acquires and manages one or more assets. Investors receive tokenized fund units representing their participation in the portfolio.

Conclusion Asset tokenization has significant potential in the UAE. It may facilitate fractional investment, improve access to high-value assets and create new sources of liquidity for assets such as real estate, ships, commodities and intellectual property. Dubai’s Real Estate Tokenization Project demonstrates how tokenization may be integrated with an existing public registration system. Similar principles may be applied to other asset classes, although each requires consideration of its own ownership and registration framework. However, tokenization does not replace proper legal structuring. The key question remains what rights the token represents and how those rights are made enforceable under real estate, corporate, virtual asset, capital markets and AML regulations.

This structure may be appropriate for portfolios of properties, vessels or other income-generating assets. The fund will own the assets, while token holders receive rights to distributions and/or redemption proceeds.

Legal Structuring of Tokenized Assets

Where investor capital is pooled and managed collectively, the arrangement may fall within securities, funds or financial services regulation. The establishment, management, promotion and distribution of the fund may therefore require approval or licensing from the competent regulator.

A direct model under which a token itself represents legal title to real estate is more difficult, because the legal title

Where virtual asset activities are conducted in Dubai outside the DIFC, VARA approval or licensing is required

The project must therefore rely on carefully aligned corporate, contractual and regulatory arrangements to define and protect the token holders’ rights.

for issuing, arranging, transferring or operating a platform in relation to tokens. VARA approval does not replace any separate fund or securities approval that may be required.

ThoughtLeaders4 Middle East Magazine • ISSUE 3

A JUDGEMENT IS NOT THE FINISH LINE

Authored by: Fatima Akram (Associate) - Balfaqeeh Advocates & Legal Consultants

Winning on Paper A favourable judgment or arbitral award is often treated as the successful conclusion of a dispute. In a crossborder matter, however, it may mark only the beginning of a commercially important stage: converting a legal victory into actual recovery.

Enforcement should therefore shape dispute strategy from the outset, influencing the parties pursued, the forum selected, interim protection and whether likely recovery justifies the proceedings. Success is not simply obtaining a favourable decision but ensuring that its value can be realised.

A claimant may establish liability only to discover that the respondent’s assets are located elsewhere, held through related entities, subject to competing claims or no longer traceable. An unenforceable decision may therefore carry legal significance while delivering limited commercial value.

The contracting counterparty may be only one part of a wider corporate structure. Its apparent strength may depend on assets owned by another group company; receivables paid into foreign accounts or property registered elsewhere. Those assets do not automatically become available to satisfy a judgment against the contracting party, making early identification of ownership critical. UAE civil procedure permits prejudgment attachment in prescribed circumstances where there is a risk of losing the security for a right, including where serious evidence suggests that the debtor may abscond or remove or conceal assets.2

This is not a secondary concern.

Start with the Asset Map

In 2025, the DIFC Courts recorded 341 enforcement claims with an aggregate claim value of AED 10.9 billion.1

The first question in a cross-border dispute is often: “Do we have a strong claim?” That question is essential, but incomplete. A realistic assessment must also ask what assets are available, where they are located and whether they will remain accessible when judgment is obtained.

An asset map should therefore form part of the initial merits assessment. It may affect the defendants pursued, the forum selected, the need for interim measures and legal expenditure. The strength of a claim should always be tested against the practical question: if the claimant succeeds, where will recovery come from?

1 DIFC Courts, “DIFC Courts Sets Out Five-Year Growth Strategy as It Shares 2025 Service Statistics” (11 February 2026), reporting that 341 enforcement claims were filed in 2025, with an aggregate claim value of AED 10.9 billion. 2 Federal Decree-Law No. (42) of 2022 Promulgating the Civil Procedure Code (United Arab Emirates), Article 247(1)(b).

ThoughtLeaders4 Middle East Magazine • ISSUE 3

Forum Selection Is an Enforcement Decision A jurisdiction clause is often negotiated as though it determines only where a future dispute will be heard. In a crossborder transaction, it also shapes the decision the successful party will hold, and the route required to convert it into recovery. Where assets are located in the UAE, a foreign judgment must satisfy statutory enforcement conditions, including requirements concerning jurisdiction, proper service and representation, finality, and consistency with UAE public order and existing UAE judgments.3 Foreign arbitral awards are subject to corresponding requirements, without prejudice to applicable international conventions and agreements.4 No forum is universally preferable. Arbitration may offer neutrality and international portability, while court litigation may provide advantages in the jurisdiction most closely connected to the parties or assets. The choice depends on where the outcome must take effect. Parties should therefore test jurisdiction and arbitration clauses against the likely enforcement map. Would recognition be required in several jurisdictions? Are effective interim remedies available? Could the chosen route delay recovery? Forum selection is not only about where to argue the dispute. It is also about how the claimant expects to recover when the argument is over.

Preserve Value Before It Disappears A judgment can only be enforced against assets that remain available when proceedings conclude. Where there is credible evidence of concealment, dissipation or movement of assets across jurisdictions, waiting for a final determination may defeat the commercial purpose of the claim. Interim measures should form part of the early recovery assessment. They are not automatic and must be supported by evidence but may be essential where delay creates a genuine risk to enforcement.

The Rules of the DIFC Courts recognise freezing orders restraining dealings with assets, including assets outside the jurisdiction, and orders requiring information about their location. Interim relief may also be granted before substantive proceedings commence and after judgment.5 In Carmon v Cuenda, the DIFC Court of Appeal confirmed that the Court may grant protective relief against asset dissipation in support of the prospective enforcement of a foreign judgment capable of recognition and enforcement in the DIFC. The Court nevertheless emphasised that the jurisdiction is discretionary and must extend no further than necessary.6 The point is not that interim relief should always be pursued, but that enforcement risk should be assessed before assets become difficult to trace or beyond effective reach.

One Dispute, One Recovery Strategy Cross-border disputes are often divided into separate stages: merits first, interim relief when a risk emerges, and enforcement only after a final decision. Different lawyers, experts and jurisdictions may become involved. That division may be convenient, but it can produce a fragmented strategy.

The Real Measure of Success A judgment or arbitral award remains essential, but it is not the ultimate measure of success. In cross-border disputes, success lies in preserving value and converting legal rights into recoverable commercial outcomes.

Each procedural decision may affect recovery. The defendants pursued determine which assets may be reached; early relief may determine whether those assets remain available; and the wording of the final order may influence how readily it can be recognised elsewhere. The memorandum signed by the Dubai Courts and ADGM Courts in January 2025 formalises procedures for reciprocal enforcement and encourages litigants to seek enforcement where the subject of enforcement is situated.7 Such cooperation assists enforcement but does not replace a claimant-specific recovery plan. Recoverability should also inform settlement. A reduced but immediate and secured payment may offer greater commercial value than a larger judgment requiring years of recognition, tracing and execution. The dispute may pass through several forums, but the recovery strategy should remain continuous.

3 Federal Decree-Law No. (42) of 2022 Promulgating the Civil Procedure Code (United Arab Emirates), Article 222(2)(a)–(e). 4 Federal Decree-Law No. (42) of 2022 Promulgating the Civil Procedure Code (United Arab Emirates), Articles 223 and 225. 5 Rules of the DIFC Courts, Part 25, Rules 25.1(6)–(7), 25.6–25.7 and 25.9. 6 Carmon Reestrutura-Engenharia E Serviços Técnios Especiais, (SU) LDA v Antonio Joao Catete Lopes Cuenda [2024] DIFC CA 003, DIFC Court of Appeal, judgment dated 26 November 2024, paragraphs 154–157. 7 Memorandum of Understanding between Dubai Courts and Abu Dhabi Global Market Courts Concerning the Reciprocal Enforcement of Judgments, signed on 14 January 2025, paragraphs 1–3.

ThoughtLeaders4 Middle East Magazine • ISSUE 3

THE DIFC VCC

A NEW STRUCTURING OPTION FOR PRIVATE CAPITAL Authored by: Shantanu Mukherjee (Managing Partner) & Varun Alase (Associate) - Ronin Legal The Variable Capital Company (VCC) is a new company form introduced under the Variable Capital Company Regulations 2026, effective from 9 February 2026 in the Dubai International Financial Centre (DIFC). It is designed for proprietary investment and asset-holding structures rather than for operating businesses or public fund products, creating a middle ground between a conventional private company and a fully regulated investment structure. For private clients, family offices, and investment groups, the VCC matters because it solves a long-standing structuring problem: how to house different pools of capital within a single legal platform while preserving segregation and allowing capital to move with asset values. The regime is particularly attractive where the objective is not trading, but managing investment portfolios, family wealth, or co-investment arrangements with regular subscriptions and redemptions.

The regime is built for proprietary use. It is not intended for commercial trading, public fundraising, or general third-party investment solicitation, and it is not a substitute for a regulated fund or insurance structure. Its role is narrower: to support investment holding and wealth structuring with a lighter and more adaptable legal architecture.

What Makes The VCC Different The VCC’s most distinctive feature is that its share capital must always equal the net asset value (NAV) of its underlying assets. This departs fundamentally from the fixed nominal capital model applicable to standard DIFC private companies. Rather than treating share capital as a static figure, the VCC allows capital to expand or contract in line with portfolio value, giving it the economic character of an open-ended fund within a company law framework.

Structural Design A VCC can be established in one of three forms: as a standalone vehicle with a single pool of assets and liabilities; as an umbrella with segregated cells; or as an umbrella with incorporated cells. The segregated cell model keeps the VCC and its cells within a single legal person, while preserving statutory ringfencing between each cell’s assets and liabilities. The incorporated cell model differs in that each cell is itself a separate private company, though it remains part of the broader umbrella. A VCC cannot combine both cell types within the same structure.

ThoughtLeaders4 Middle East Magazine • ISSUE 3 This cellular design allows one platform to support multiple strategies, purposes, or family branches – for example, one cell for growth assets, another for income-generating holdings, and another for philanthropic capital. Legal segregation ensures that the liabilities of one cell do not spill into another, which will appeal strongly to wealth planners and private capital sponsors.

outsourcing practical administration. The CSP requirement also gives the regulator visibility over the structure without imposing the heavier regime that attaches to a regulated fund.

Capital Flexibility and Investor Mechanics Shares, including cell shares, are redeemable in accordance with their terms and articles of association, with issue, redemption, and buyback prices linked to NAV. This allows the company to admit or withdraw capital in a way that mirrors the true economics of the underlying portfolio. Distributions may be made out of capital, provided the relevant VCC or cell has a positive NAV and the distribution does not reduce NAV below zero. This is particularly useful in wealth structures where the objective is to pass value to beneficiaries or co-investors without waiting for conventional profits to arise. The result is a corporate vehicle that can support recurring subscriptions and redemptions, asset revaluation, and capital rotation without the friction associated with ordinary share capital maintenance rules.

Administration and Regulatory Scope The VCC is licensed only for holding company activities and sits outside regulated financial services unless the DFSA specifically permits otherwise. VCCs may not employ staff directly, reinforcing that they are not operational vehicles. Unless qualifying as an Exempt VCC, a VCC must appoint a DFSAlicensed corporate service provider (CSP) to handle incorporation, registered office services, records maintenance, filings, and liaison with the DIFC Registrar. The CSP is not a mere administrator – it is central to the vehicle’s operation. This model suits family office structures and passive investment platforms well. A family or sponsor retains strategic control through governance rights, investment policies, and board oversight, while

How It Compares Against a standard DIFC private company, the VCC offers a much more dynamic capital structure. A conventional company is built around fixed capital and the usual capital maintenance principles. Changes to capital often involve more formal steps, and distributions are generally tied more closely to profits or realised reserves. The VCC, by contrast, is NAV-driven and therefore more responsive to the actual value of its assets. Against a DIFC Protected Cell Company, the VCC is generally aimed at a different use case. PCCs are more closely associated with regulated activities, particularly funds and insurance. They also sit within a more supervision-intensive environment. The VCC provides a similar ring-fencing concept, but in a setting designed for non-regulated proprietary investment. Against an SPV or prescribed company, the VCC adds something important: a multi-cell framework with fund-like capital mechanics. SPVs are excellent for singleasset or single-purpose holdings, such as real estate, shares, aircraft, or structured finance arrangements. But they do not naturally provide an umbrella structure with NAV-based capital flexibility across multiple pools. The VCC does.

and SPVs or prescribed companies can be used beneath individual cells to hold specific assets. This layered approach can be particularly effective for families with multiple branches, separate risk appetites, or different investment objectives. It also helps with succession and allocation planning. Instead of managing a maze of separate holding entities, a family can potentially use one umbrella structure to separate capital logically while preserving overall control. That can simplify administration, improve transparency, and make it easier to allocate economic rights across different beneficiaries or family lines. The VCC is also useful where capital must be repeatedly introduced and withdrawn. Family offices, coinvestment clubs, and private capital pools often need a structure that can absorb new money, redeem outgoing interests, and adjust valuations regularly. The VCC is built to do that without forcing the structure into a traditional company mould.

Conclusion The DIFC VCC fills a gap in the structuring landscape. It brings together NAV-based capital, cell-level segregation, controlled administration, and a non-regulated holding-company perimeter. That combination is rare. It gives advisers and clients a new way to design investment platforms that are more responsive to economic reality while still remaining within a clear legal framework. For clients who have outgrown a simple SPV structure but do not need the full complexity of a regulated fund, the VCC is a meaningful step up. It also strengthens the DIFC’s position as a jurisdiction for modern private capital structuring, adding to an ecosystem that already includes family offices, SPVs, prescribed companies, and regulated financial services. Where the facts fit, it can provide a cleaner, more flexible, and more scalable framework for holding and managing private capital.

Fit Within Private Wealth Planning The VCC is likely to be most powerful when used as part of a broader private wealth stack. A DIFC family office can sit at the governance level, the VCC can function as the investment platform,

ThoughtLeaders4 Middle East Magazine • ISSUE 3

THE UNITED ARAB EMIRATES

AS A HUB FOR THE INTERNATIONAL ECONOMY Authored by: Dr. José A. Campos Nave (Founder and Managing Partner) - Spencer West Middle East

The Strategic Position of The United Arab Emirates In the past, long-distance trade played an important role in the history of the Arabian Peninsula. Since the discovery of oil and gas just a few decades ago, the United Arab Emirates (UAE) has rapidly developed into an ultramodern economic region with a strong and dynamic economy. Thanks to its enormous oil reserves, the UAE is now one of the richest countries in the world. Before Great Britain, the former protector, took over the area on the Arabian Gulf in the course of the 19th century, in 1853 first the Ottomans and later the Portuguese naval power took over the protection of their trade routes to India by establishing various military bases.

On December 2, 1971, the United Arab Emirates was founded with the official introduction of the national flag. Since then, this date has been considered Independence Day. The UAE forms a federation of a total of seven predominantly autonomous emirates, which are as follows: Abu

Dhabi, Dubai, Ajman, Sharjah, Umm Al Quwain, Ras Al-Khaimah, Fujairah. The UAE is part of the Middle East & North Africa MENA region. Its population, which amounts to about 9.4 million, contains a high proportion of foreigners of around 88 percent. Most of the migrant workers needed by the high demand for labour come mostly from India, Bangladesh, Pakistan, Egypt, the Philippines and Iran.

The proportion of the local population is only around 12 percent. They are among the countries with the highest immigration rate in the world. The legal system, the “Sharia”, is based on Islam, the state religion of the UAE. Within the seven emirates, there is a financial transfer settlement. On the basis of the total income from the economy, income compensation is carried out by the funds flowing from the Emirates with higher incomes to the resource-poor and economically disadvantaged Emirates in order to enable balanced overall economic development. In recent years, the UAE’s economy has experienced rapid development. With their two economic centres Abu Dhabi and Dubai, these are now among the most dynamic and important “hubs” in

the Middle East and are now also the most important foreign trade partner of the European export industry in the Arab world. The most important export goods to the UAE include aircraft, machinery, motor vehicles and parts, electrical engineering and electronics, and chemical products. In order to become independent of oil revenues in the long term, the UAE government has set itself the goal of continuing to promote the diversification of the economy. For this purpose, various business plans have been developed, such as e.g. the Energy Strategy 2030 in the field of low-emission technologies combined with an increased awareness of environmentally friendly living. The UAE has a very well-developed modern industrial infrastructure, especially in the areas of transport, logistics, trade, aviation, highways, ports, water and sanitation. The real estate sector is also gaining in importance and contributes a not inconsiderable share to the growth of gross domestic product. In addition, modern information and communication technology has gained in importance. The UAE has also shown that it is well prepared for the introduction of the new artificial intelligence technology. After all, the goal is to continue to push ahead with their diversification efforts alongside oil and tourism.

ThoughtLeaders4 Middle East Magazine • ISSUE 3

The United Arab Emirates as a Global Logistics Hub In recent decades, the United Arab Emirates (UAE) has developed into one of the most important logistics locations in the world. Due to its strategic location between Europe, Asia and Africa, the Emirates serve as a central hub for international trade. In particular, the Emirates of Dubai and Abu Dhabi are investing billions in modern port, airport and railway infrastructure to further expand their position as the leading logistics centre in the Middle East. A key objective of these investments is to reduce economic dependence on the oil sector and to create new sources of income in the areas of trade, transport and services. The logistics industry plays a key role in this. Modern ports, free trade zones, airports and new rail connections enable fast and efficient movement of goods. The government is pursuing a long-term strategy that focuses on digitalisation, sustainability and international networking.

Etihad Rail The UAE’s most important logistics project is the national railway line Etihad Rail. It is considered one of the largest infrastructure projects in the history of the country. The rail network connects the most important industrial areas, ports and cities of the Emirates and is also to become part of the planned railway network of the Gulf States in the long term. Etihad Rail is designed to shift freight transport from road to rail. This is intended to reduce traffic congestion, reduce transport costs and reduce environmental pollution. The network connects important locations such as Abu Dhabi, Dubai, Sharjah, Fujairah and the border with Saudi Arabia. At the same time, important ports and industrial centres will be integrated into the rail network. A particular advantage is that containers and bulk goods can be transported directly between the ports and the industrial areas in the future. The national railway is thus strengthening so-called multimodal logistics, in which different modes of transport such as ships, trains and trucks are optimally linked with each other. In addition to freight transport, nationwide passenger transport will also be successively introduced

Expansion of Seaports Another focus of the logistics expansion is in the maritime sector. The Jebel Ali Port in Dubai is already one of the largest container ports in the world and serves as an important transshipment centre for trade between Europe, Asia and Africa. Through continuous expansion and the use of automated technologies, the port’s performance is constantly being increased. The Khalifa Port in Abu Dhabi is also becoming increasingly important. The port is directly connected to the KEZAD (Khalifa Economic Zones Abu Dhabi) industrial and economic zone. The connection to Etihad Rail will create a state-of-the-art logistics centre here, which will significantly speed up the transport of goods between the port, industrial companies and regional markets. In addition, the port of Fujairah on the east coast plays an important role. Due to its location outside the Strait of Hormuz, it offers strategic advantages for international shipping and serves as an important energy and logistics location. Another pipeline is currently being built in order to be less dependent on transport by ship through the Strait of Hormuz.

Expansion and Development of Modern Logistics Centres Parallel to the expansion of the transport infrastructure, the Emirates are investing massively in modern logistics and industrial parks. Of particular note are the free trade zones, which attract international companies with tax advantages, simple bureaucracy and excellent infrastructure. Key Locations include: 1. Jebel Ali Free Zone (JAFZA) in Dubai 2. Dubai South Logistics District 3. KEZAD in Abu Dhabi 4. National Industries Park in Dubai These areas offer extensive warehouse space, modern distribution centres and direct access to ports, airports and, in the future, Etihad Rail’s rail network. This creates integrated logistics clusters in which production, storage and transport are closely linked.

Airports as Modern Freight Centres Air freight is another pillar of the Emirati logistics strategy. Dubai International Airport (DXB) and in particular Al Maktoum International Airport in Dubai South are among the most important air cargo hubs in the region. Together with Emirates SkyCargo, Dubai has one of the most efficient air freight networks in the world. Highquality and time-critical goods such as electronics, medicines or luxury products can thus be transported to almost all regions of the world within a very short time. Abu Dhabi Airport is also continuously expanding its role as an air cargo hub. The combination of airports, ports and rail transport creates optimal conditions for international supply chains.

Digitalisation and Sustainability In addition to the expansion of physical infrastructure, the UAE is focusing heavily on digitalization. Modern technologies such as artificial intelligence, blockchain applications, automated warehouses and intelligent traffic control systems are expected to further improve the efficiency of supply chains. At the same time, the topic of sustainability is gaining in importance. Etihad Rail’s rail freight services help reduce truck traffic and lower emissions. The government is pursuing the goal of making logistics more environmentally friendly and energy-efficient in the future.

Conclusion The United Arab Emirates is currently investing massively in the expansion of its logistics and transport infrastructure. The focus is on the Etihad Rail project, which is a national railway network connecting the main ports, industrial areas and cities. This project will be complemented by the expansion of seaports, airports and modern logistics centres. Through the combination of strategic location, state-of-the-art infrastructure and consistent digitalization, the UAE is increasingly developing into one of the most important logistics locations in the world. The current projects will not only strengthen the country’s competitiveness but also promote economic diversification and secure the role of the Emirates as an international trade centre in the long term.

ThoughtLeaders4 Middle East Magazine • ISSUE 3

STRUCTURING WEALTH IN THE MIDDLE EAST

PRIVATE CLIENT HORIZONS Authored by: Rajah Abusrewil (Partner) & Anouksha Patel (Senior Counsel) - Walkers

Introduction The Middle East remains one of the world’s most significant concentrations of private wealth. Dynastic family enterprises, sovereign-linked capital and a rapidly diversifying entrepreneurial class combine to produce a private client landscape of extraordinary scale and complexity. Ultra-high-net-worth Middle Eastern families (“UHNW MEs”) have a variety of reasons for looking to structure assets offshore: global mobility, increasing professionalisation of families, their structures and their advisors, the intergenerational wealth transfer, succession planning, equalisation of family assets, and geopolitical diversification/consolidation, to name but a few. It is against the backdrop of this increasingly complex framework that we must consider each UHNW ME and their evolving needs.

Global Mobility Global mobility encompasses the movement of people, capital and information freely across borders and is now an everyday reality as more people have connections to multiple countries.

Therefore, we must consider this mobility and how operates across three interlocking dimensions: personal mobility (physical relocation for business, education or lifestyle); structural mobility (the capacity of asset protection vehicles to adapt or migrate); and jurisdictional mobility (the strategic selection of legal environments offering asset protection, privacy and regulatory efficiency). It is against this increasingly complex framework that modern wealth structuring for UHNW MEs should be considered.

Global Mobility Personal Personal mobility has increased significantly because UHNW MEs live in multiple countries and have businesses operating in multiple regions, The factors propelling UHNW MEs across borders are well documented: business expansion into new markets; children attending universities abroad (especially London, Boston or Zurich) who then remain in those jurisdictions and grow their families; digitalnomad visas from migration-friendly

jurisdictions including Barbados, Bermuda, St Kitts and Nevis, Italy and Portugal; political or economic instability concerns; and most significantly in recent years, tax and regulatory changes, including for example, the UK’s reform to its non-domicile regime.

Global Mobility Structural Structural mobility and flexibility are a natural follow-on from UHNW MEs being so personally mobile, so their structures must adapt accordingly. Embedding flexibility at the drafting stage is the cornerstone of modern structuring. Key considerations should include change-of-proper-law clauses; “flee clauses” that automatically transfer trusteeship, assets and governing law upon trigger events; comprehensive amendment powers; beneficiary addition and removal clauses (essential where a beneficiary relocates to an unfriendly trust jurisdiction); incapacity and “incommunicado” provisions; and cyber-security and kidnap-response protocols.

ThoughtLeaders4 Middle East Magazine • ISSUE 3 The ability to connect onshore structures with their offshore counterparts is essential to ensure that UHNW MEs can continue to do business internationally with ease.

Offshore Trusts, Foundations and PTCs Offshore trusts and foundations, such as those governed by the laws of Jersey, Guernsey and the Cayman Islands, remain enduringly popular with UHNW MEs for effecting multigenerational wealth transfer, asset protection amid political and social upheaval, and for the preservation of confidentiality. Key attractive features of these offshore structures are that they have well established legal frameworks particularly in respect of firewall provisions which protect against foreign court interference and for settlors, the ability to reserve or grant wide ranging powers, without jeopardising the robustness and validity of the trust or foundation Private trust companies are companies incorporated solely to act as the trustee of a trust, and often family members will sit on their boards. This form of structuring can help address the reluctance of many principals to place assets in the hands of an unknown third-party trustee, making private trust companies a consistently popular option for Middle Eastern clients.

Benefitting from the expertise of a rich network of lawyers, trust & corporate service providers, accountants, tax specialists and fund administrators will allow the UHNW MEs to scan the horizon not only for opportunities within their own family and business, but to anticipate and plan for any tax, legal and regulatory changes that may impact them.

Conclusion

Global Mobility Jurisdictional Jurisdictional mobility means it is crucial to really consider jurisdiction selection, legal frameworks, tax treatment and regulatory compliance. UHNW MEs have favoured pre-eminent offshore jurisdictions such as Jersey, Guernsey and the Cayman Islands for structuring their international assets. These jurisdictions benefit not only from constitutional links to the British Crown, which provides political stability, independent legal systems and the benefit of ultimate legal recourse to the UK Privy Council (which sits in London), but also from a well-developed and resilient legal infrastructure, reflected in long-established expertise and capability and substantial bodies of statute and case law. Combined with sophisticated independent regulation, tax neutrality for non-resident settlors and beneficiaries, and the ability to move structures in and out of a jurisdiction with clarity and ease, these features make them increasingly attractive for international wealth structuring.

Global mobility is no longer a trend; it is the structural reality within which Middle Eastern wealth planning operates. Families demand a governance architecture that accommodates the known and the unknown; tailored drafting mechanisms that can anticipate regulatory upheaval; and advisory ecosystems delivering co-ordinated, multidisciplinary insight that formalise generational purposes. Communication with successor generations, clear governance, and early engagement of the next generation remain key to the longevity and success of any international family and helps to reduce intergenerational conflict by preserving unity of purpose. For the private client practitioner, the Middle East represents a region where traditional trusts and estates expertise must be combined with cultural sensitivity, regulatory agility and a genuinely international outlook. Those advisers who weave personal, structural and jurisdictional mobility into the fabric of a wealth plan by embedding flexibility from the outset rather than retrofitting it under pressure, will be best placed to serve the next generation of Middle Eastern families as their capital, and their lives, continue to span continents.

Professionalisation Onshore Financial Centres: DIFC and ADGM The Dubai International Financial Centre (DIFC) and the Abu Dhabi Global Market (ADGM) continue to develop their foundation and trust regimes. For Middle East-situs business interests, a DIFC or ADGM foundation is often required for local structuring compliance, with an offshore discretionary trust or holding company acting as beneficiary to receive assets following a liquidity event.

As an UHNW ME family grows in wealth and complexity, its structure should be reviewed periodically, and that review should also extend to its advisors. With greater transparency within families planning for intergenerational wealth transfer, and the increasing professionalisation of their family offices and structures, having the right advisors is no longer optional but fundamental. The current global environment means that an UHNW ME advisor can no longer stand alone but must be part of a proactive and anticipatory multidisciplinary ecosystem to support their clients at all the generational levels.

ThoughtLeaders4 Middle East Magazine • ISSUE 3

FROM THE MIDDLE EAST TO THE BVI, CAYMAN AND BERMUDA: MANAGING FAMILY OFFICE DISPUTES IN THE GULF

WHY THE REAL BATTLE MAY BE OFFSHORE Authored by: Sabrina Devenish (Partner, Dubai), Robert Maxwell Marsh (Senior Associate, British Virgin Islands) & Caitlin Murdock (Counsel, Cayman) - Harneys The Gulf region has established itself as one of the world’s most significant centres of private wealth. Home to a rapidly increasing population of highnet-worth individuals (HNWIs) and ultrahigh-net-worth individuals (UHNWIs), the Gulf Cooperation Council (GCC) has seen family offices proliferate, and with them have come increasingly sophisticated multi-jurisdictional holding structures designed to preserve, protect, and grow generational wealth. Yet, wealth in the GCC is rarely held through a single domestic vehicle. Families commonly use layered structures comprising BVI companies, Cayman trusts, companies and partnerships, Bermuda trusts and private trust companies. These structures offer a range of benefits, including asset protection, succession planning, tax neutrality, governance flexibility and confidentiality, while providing access to well-established and internationally recognised legal systems, trusted by global banking institutions and underpinned by reliable and sophisticated judiciaries and specialist courts.

When a family or business relationship breaks down, whether through a succession dispute, sibling rivalry, divorce, contested governance or shareholder disputes — the real legal battleground is often not in a single forum. A claim may begin in the DIFC, ADGM, onshore Dubai or Saudi Arabia, while decisive relief concerning a BVI company, Cayman trust or Bermuda structure must be sought offshore. Understanding where the battle will be fought, how to settle it and worst case how to fight it effectively, is increasingly critical for advisers to GCC families and businesses.

The Offshore Architecture of Gulf Family Wealth GCC family wealth is often held through a layered architecture: a trust, sometimes administered by a private trust company, at the apex, with underlying BVI or Cayman holding companies that in turn own operating businesses, real estate portfolios and investments across the GCC and internationally. The structure separates legal and beneficial ownership across several jurisdictions, often with different governing laws, fiduciaries and decision-makers at each level. These structures are designed for stability and longevity. In a dispute, however, the very features that make them attractive, such as separation of legal and beneficial ownership, fiduciary discretion and confidentiality, can become the central points of contention. Disputes may concern the exercise of trustee or council discretion, the appointment or removal of directors, access to information, beneficial

ThoughtLeaders4 Middle East Magazine • ISSUE 3 ownership, or the dissipation of assets. The relevant forum for resolution may be determined by where the legal entity sits and that is almost invariably one of the offshore jurisdictions mentioned above.

When Family Disputes Go Offshore Family disputes in the GCC increasingly play out in offshore courts, with HNWIs and UHNWIs and their families finding themselves before tribunals and courts far from home. This is a natural consequence of where legal ownership sits. Common triggers include: (i) t he death of a patriarch or matriarch and contested succession; (ii) disagreements over the governance of the family office or its underlying investments; (iii) alleged breaches of fiduciary duty by trustees, directors or protectors; (iv) asset dissipation concerns following divorce or a wider family breakdown; and (v) minority shareholder oppression, exclusion from information or the suspected diversion of assets. Many such matters begin with an investigation rather than a court claim. Allegations of concealed transfers, undisclosed related-party transactions, misuse of fiduciary powers or misappropriation may require coordinated document preservation, forensic accounting, asset tracing and beneficial ownership analysis across several jurisdictions. An effective early investigation can identify the proper defendants, the most appropriate forum and the urgent relief required before assets or evidence are placed beyond reach. The BVI, Cayman Islands and Bermuda courts have each developed sophisticated jurisprudence for dealing with these matters. The BVI courts offer unfair prejudice remedies under the Business Companies Act and wide-ranging powers to appoint liquidators over solvent companies as demonstrated in cases such as AICO v Al Aggad, which illustrated the court’s willingness to intervene in complex family-related corporate disputes. This was a Middle Eastern family dispute before the BVI Commercial Court, in which one sibling claimed that other family members

wrongfully diverted shares in a BVI incorporated company that were purported to be held on trust on behalf of a Bahraini company (which had subsequently been liquidated) that the sibling and its late parent’s estate were entitled to inherit. The sibling sought damages and restitution for conspiracy and unjust enrichment. The decision illustrates the Court’s ability to use its cross-border insolvency jurisdiction where the family, corporate and assetrecovery issues span several legal systems.

These jurisdictions are well equipped to address the features commonly encountered in Gulf-related private wealth disputes, including Sharia law considerations, complex questions of foreign law, overlapping corporate and trust structures, and the need to protect family reputation while pursuing legitimate claims.

The BVI has therefore emerged as much more than a jurisdiction of incorporation; it is frequently the forum in which control, ownership and value within BVI structures are determined. As a common-law jurisdiction with procedure closely modelled on England and Wales, and a final right of appeal to the Privy Council in London, the BVI offers a familiar and rigorously tested legal framework presided over by an experienced and independent judiciary. The Cayman Islands likewise offer modern and flexible structures supported by experienced lawyers and fiduciaries and a specialist judiciary in the Grand Court’s Financial Services Division. The Cayman Islands courts have well-established trust litigation frameworks and a supervisory jurisdiction that enables the court to give directions to trustees. Trustees of Cayman Islands trusts are entitled under Section 48 of the Trusts Act (2021 Revision) to apply for the Court’s opinion, advice or direction on questions concerning the management or administration of trust property. Order 85 of the Grand Court Rules also provides a procedure for trustees, beneficiaries, enforcers and personal representatives to seek the determination of questions arising in the administration of a trust or estate. In AA v BB (unreported, Grand Court, 14 February 2020), the Court approved a trustee’s proposal to distribute trust assets only among heirs identified in accordance with Islamic inheritance law, notwithstanding a wider discretionary class of beneficiaries. The decision demonstrates how Cayman trust principles can accommodate carefully considered religious and succession objectives. The Bermuda Supreme Court also has deep experience in trust litigation and corporate disputes, including applications concerning trustee decision-making, the removal and replacement of fiduciaries, and relief in shareholder disputes.

Practical Considerations for Managing Offshore Disputes Families and their advisers must consider where the relevant entities are incorporated, which law governs the trusts and constitutional documents, where the parties and evidence are located, where the assets are held, and which court can grant effective relief. A poorly coordinated choice of forum can result in wasted costs, inconsistent orders, enforcement difficulties or jurisdictional challenges that delay resolution. The offshore court will not always be the only, or the first, forum involved. The DIFC and ADGM Courts provide English-language, common-law platforms for civil and commercial disputes and may grant interim remedies, subject to the applicable jurisdictional gateways. The onshore Dubai Courts, operating under UAE civil-law procedure and generally in Arabic, may be indispensable where parties or assets are located in Dubai, particularly for precautionary attachment and enforcement. In Saudi Arabia, the Commercial Courts and Enforcement Courts may be central where businesses or assets are located in the Kingdom, while SCCA arbitration provides an established institutional route for commercial disputes. Questions of jurisdiction, language, applicable law, mandatory rules, public policy and enforceability should

ThoughtLeaders4 Middle East Magazine • ISSUE 3 therefore be analysed at the outset. Urgent interim relief, including freezing injunctions, disclosure orders and the appointment of receivers or provisional liquidators, is often essential to prevent asset dissipation or preserve evidence at the outset of a dispute. The BVI, Cayman Islands and Bermuda courts have well-developed mechanisms for granting such relief urgently and, where justified, without notice. The BVI court has the power to grant freestanding, worldwide freezing injunctions against BVI-incorporated companies in support of foreign proceedings, including against persons and companies within its jurisdiction, even where no substantive claim is pursued in the BVI. This can make the BVI a critical venue for preserving assets held through BVI structures while the underlying family or commercial dispute is determined elsewhere. The BVI is also enforcementfriendly: depending on the originating jurisdiction, a foreign money judgment may be recognised by registration or through a common-law claim, provided the applicable requirements are met. Section 11A of the Cayman Islands Grand Court Act (2026 Revision) empowers the Grand Court to appoint a receiver or grant interim relief, including freezing injunctions, in support of proceedings commenced or contemplated before a foreign court, provided those proceedings are capable of resulting in a judgment enforceable in the Cayman Islands. Trezevant v Trezevant (FSD No. 314 of 2021, 10 November 2021) illustrates the practical application of this power: the Court considered a without-notice application to preserve Cayman assets in aid of overseas divorce proceedings, while recognising that the foreign court retained primary responsibility for determining the substantive dispute. Privacy and reputation are important considerations, but confidentiality should not be assumed. Offshore courts apply principles of open justice, although private hearings, anonymisation and reporting restrictions may be available where justified, particularly in sensitive trust and private wealth matters. A confidentiality strategy should therefore be considered at the outset alongside the merits and assetpreservation strategy.

single strategy for evidence gathering, interim relief, substantive claims, settlement and enforcement. The timing and sequencing of each step can be as important as the choice of forum itself.

Looking Ahead As GCC family wealth continues to grow and the region’s HNWI and UHNWI population expands and more often than not uses offshore structures for diversification and succession planning, the volume and sophistication of offshore disputes coming out of the region is set to increase. The next generation of HNWIs and UHNWI — often internationally educated and commercially sophisticated, is increasingly willing to scrutinise historic arrangements and assert legal rights where governance structures have not kept pace with the family’s evolution. Advisers who understand both the Gulf context and the offshore legal landscape will be best placed to help families navigate these disputes or, better still, to reduce the risk of them arising. Proactive governance reviews, clear succession protocols, documented decision-making and well-drafted constitutional and trust documents for offshore entities can help prevent misunderstandings from developing into costly, multi-jurisdictional litigation. For families with offshore structures, understanding the investigative, interim and dispute-resolution tools available in the BVI, Cayman Islands and Bermuda, and how they interact with courts and arbitral tribunals in the Gulf, is no longer a niche concern. It is an essential part of modern wealth governance.

Coordination across jurisdictions is essential. A dispute involving a Bermuda trust, BVI holding companies and assets in the UAE or Saudi Arabia may require parallel proceedings and a

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