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Nisan v Neysa [2024] DIFC SCT 174

July 18, 2024 SCT - JUDGMENTS AND ORDERS

Claim No: SCT 174/2024

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE SMALL CLAIMS TRIBUNAL OF DIFC COURTS

BETWEEN

NISAN

Claimant

and

NEYSA

Defendant

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ORDER WITH REASONS OF H.E. JUSTICE NASSIR AL NASSER

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UPON the Defendant’s Acknowledgment of Service dated 5 June 2024 setting out its intention to contest the jurisdiction of the DIFC Courts (the “Defendant’s Jurisdictional Challenge”)

AND UPON this Claim having been called for a Jurisdiction Hearing before H.E. Justice Nassir Al Nasser on 16 July 2024, with the Claimant’s and the Defendant’s representatives in attendance

IT IS HEREBY ORDERED THAT:

1. The Defendant’s Jurisdictional Challenge is granted.

2. The DIFC Courts has no jurisdiction to hear and determine this Claim.

3. Each party shall bear his own costs.

Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date: 18 July 2024
At: 9am

SCHEDULE OF REASONS

1. The Claimant is Nisan (the “Claimant”), a company registered and located in Sharjah, UAE.

2. The Defendant is Neysa (the “Defendant”), a company registered and located in Dubai, UAE.

3. On 2 May 2024, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking payment in the sum of AED 120,857.14.

4. On 5 June 2024, the Defendant filed its Acknowledgment of Service contesting the jurisdiction of the DIFC Courts.

5. A jurisdiction hearing was duly listed before me on 16 July 2024 at which the Claimant’s and the Defendant’s representatives appeared.

6. The Defendant is challenging the jurisdiction of the DIFC Courts on the basis of the contractual relationship between the parties. The Defendant submits that the Claimant established itself as a third party seller on the online marketplace of the Defendant.

7. The Defendant submits that in order to be established as a registered seller on the online marketplace, a number of onboarding processes have to be completed; the seller is required to agree to the terms of the provision of marketplace services, which includes the Defendant’s Business Service Agreement (“BSA”). The Defendant submits that the opening paragraph of the BSA sets out the seller’s acceptance of the terms of the BSA as described:

“by registering for or using the services, you (on behalf of yourself or the business you represent) agree to be bound by the terms of this agreement, including the service terms and program policies that apply in the elected country for each service you register for or elect to use”.

8. The Defendant adds that in completing the registration as a seller on the marketplace, explicit agreement was given by the Claimant to the terms of the BSA and specifically the jurisdiction clause which is set out at clause 18(b) which reads as follows:

“any dispute, claim, difference or controversy arising out of, relating to or having any connection with this agreement with Neysa or its affiliates, including your use of the services, any dispute as to its existence, validity, interpretation, performance, breach or termination or the consequences of its nullity and any dispute relating to any non-contractual obligations arising out of or in connection with it, shall be referred to and finally resolved by arbitration under the DIFC-LCIA Arbitration Rules as amended from time to time. The number of Arbitrators shall be one, to be appointed in accordance with the DIFC-LCIA Arbitration Rules. The Seat or legal place of arbitration shall be the Dubai International Financial Centre. The language used in the arbitral proceedings shall be English. Neysa and you each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action.”

9. The Defendant adds that further to the issuance of Decree No. 34 of 2021 and following the abolition of the DIFC-LCIA Arbitration Centre, this Arbitration should now be administered by the Dubai International Arbitration Centre (“DIAC”) unless both parties agree otherwise. Hence the Defendant submits that the DIFC Courts have no jurisdiction to hear and determine this claim.

10. The Claimant relies upon the legal policies of Neysa customer service “Condition of Use & Sale” which provides at clause 14 the Applicable Law, as follows:

“These conditions are governed by and construed in accordance with the laws of the Dubai International Finance Center (“DIFC”). If any dispute, claim, difference or controversy arising out of, relating to or having any connection with these conditions, including as it may relate in any way to your use of any Neysa Service, or to any products or services sold or distributed by Neysa or through Neysa.com, or the existence, validity, interpretation, performance, breach or termination and/or any dispute relating to any non-contractual obligations arising out of or in connection with them (for the purpose of this section, a “Dispute”) qualifies for determination through the DIFC Small Claims Tribunal (“SCT”), then the SCT shall have exclusive jurisdiction to settle any such Dispute. For Disputes that do not qualify for determination through the SCT, the courts of the DIFC shall have exclusive jurisdiction to settle such Dispute and each party submits to the exclusive jurisdiction of the courts of the DIFC. For the purposes of this section, you waive any objection to either the courts of the DIFC or the SCT, as applicable, on the grounds that either of them is an inconvenient or inappropriate forum to settle any Dispute.”

11. Therefore, the Claimant submits that the DIFC Courts has the jurisdiction to hear and determine the claim.

12. In response, the Defendant submits that clause 14 of the Condition of Use & Sale applies to customers shopping via Neysa.com and not third party sellers registered on the market place. The Defendant submitted evidence to show that upon registering as a third party seller, the only agreement relevant between the Seller and the Defendant is the BSA.

13. The jurisdiction of the DIFC Courts is determined by Article 5(A) of the Judicial Authority Law, Dubai Law No. 12 of 2004, as amended (the “JAL”), which provides a number of limited gateways through which the DIFC Courts have jurisdiction over a claim, which are, as relevant:

“(a) Civil or commercial claims and actions to which the DIFC or any DIFC Body, DIFC Establishment or Licensed DIFC Establishment is a party;

(b) Civil or commercial claims and actions arising out of or relating to a contract or promised contract, whether partly or wholly concluded, finalised or performed within DIFC or will be performed or is supposed to be performed within DIFC pursuant to express or implied terms stipulated in the contract;

(c) Civil or commercial claims and actions arising out of or relating to any incident or transaction which has been wholly or partly performed within DIFC and is related to DIFC activities; . . .

(e) Any claim or action over which the Courts have jurisdiction in accordance with DIFC Laws and DIFC Regulations. . .

. . . civil or commercial claims or actions where the parties agree in writing to file such claim or action with [the DIFC Courts] whether before or after the dispute arises, provided that such agreement is made pursuant to specific, clear and express provisions.”

14. Therefore, I find that the parties are non DIFC registered entities and have not agreed to the jurisdiction of the DIFC Courts, and in accordance with Article 5(A) of JAL, I find that the DIFC Courts have no jurisdiction to hear and determine this claim.