Webcast: Why the best dispute strategies start long before a claim is filed

Hannah Howlett joined a ThoughtLeaders4 webcast panel, "One Dispute, Many Tools: Achieving Optimal Outcomes Across Courts and Funding Options," with Charlotte Songwiqi, Mosaab Aly and Daniel McCarthy of Al Tamimi & Company and Jennifer Frenis from Deloitte. 

Watch the webcast below:

Transcript: 

Charlotte: Thank you very much for joining us today. My name is Charlotte Songwiqi. I'm a Senior Associate in the dispute resolution team at Al Tamimi & Company, based in the DIFC office, and I'm delighted to be your moderator for what I think is going to be a really rich and practical conversation.

Our session is titled "One Dispute, Many Tools: Achieving Optimal Outcomes Across Courts and Funding Options." That title was chosen deliberately, because one of the biggest mistakes parties and their advisers can make is to view a dispute through a very narrow lens. A dispute involves strategy, forum selection, interim relief, funding decisions, enforcement and, increasingly — as Jen will tell us about later — restructuring and insolvency considerations. The most successful outcomes come from thinking about all of those tools together, and thinking about them early, which is what we'll be running through today.

For those audience members based in the UK who may be less familiar with the UAE, we are in a fairly unique jurisdiction. We have the onshore courts in the various Emirates of the UAE, and we also have the international "offshore" courts in the DIFC and ADGM. We also have the ability to use both jurisdictions — and the tools within each — in the way that best suits each dispute.

Let me introduce our panelists, who will be covering all angles today.

Mosaab is a partner leading Al Tamimi's onshore disputes practice. He has handled some of the most complex and high-stakes disputes to go through the onshore courts in the region, and there is very little he hasn't seen when it comes to deploying the full range of interim relief and enforcement tools available to clients.

Daniel is a senior counsel in our international litigation team and a practising barrister. He leads our advocacy practice and works across some of the most complex cross-border and multi-jurisdictional matters in the region, bringing both courtroom expertise and a strategic, big-picture view of how different forums and tools interact.

Hannah Howlett is a Senior Vice President at Burford Capital, the world's largest dispute finance firm. Hannah is based here in Dubai and brings an extraordinary perspective on how litigation funding has evolved from a niche product to a genuine strategic tool that is reshaping the way parties approach, manage and monetize commercial disputes.

And last but not least, we have Jen, a director in Deloitte's performance improvement and restructuring team. Jen has been at the center of some of the most significant and complex restructuring matters in this region and brings a deeply practical perspective on the tools available when businesses face real financial difficulty.

Thinking chronologically, we'll start with the funding and strategic considerations that should be on your radar before a dispute even commences — although Hannah will tell us that funding doesn't only have to come at the beginning of a dispute. We'll then move through jurisdictional strategy and interim relief tools, both onshore and offshore, with Mosab and Daniel, and finish with Jen looking at what happens when things go wrong. We should have around ten minutes at the end for your questions.

Legal finance and dispute strategy

Charlotte: Hannah, let's start at the beginning. Burford has been involved in some of the world's most sophisticated disputes, and you have a particular vantage point on how this landscape is evolving. Can you set the scene for us? What are you seeing on the ground today, and what does that mean for how parties need to think about disputes?

Hannah: Absolutely — thanks, Charlotte. The biggest change we've seen over the past five to ten years is that disputes are becoming increasingly sophisticated, and legal spend is increasing exponentially too. We're seeing far more multi-jurisdictional disputes. We're seeing far more defendants using complex offshore structures to hold their assets, and far more sophisticated asset protection strategies generally. And we're seeing foreign courts look at recognition of foreign judgments with a much more skeptical eye than perhaps they have in the past. It's now much less common for a dispute to involve a single claim, in a single jurisdiction, with a single judgment at the end of it and a single asset to enforce against.

I think three consequences flow from that. The first is how important it is to think about the overall strategy — including enforcement — at the outset, rather than saving it as an afterthought for once you've got judgment. The more you can learn early about where the assets are, who holds them legally, how you're going to get to them and what issues you might face, the better position you'll ultimately be in to enforce.

The second consequence, probably good for lawyers, but not for clients, is that legal budgets are increasing. When you're litigating in multiple jurisdictions, litigating complex asset-structuring issues, calling on experts and requiring more interim applications, you're driving up costs.

And finally, related to that, we're seeing increasing use of interim applications alongside the substantive strategy: Section 1782 applications in the US for discovery, Norwich Pharmacal applications, freezing orders, receiverships and so on. As disputes become more sophisticated, we're increasingly seeing clients turn to funding as part of the wider strategy, as opposed to just the provision of capital.

Charlotte: You made the point that funding should be thought of strategically and not just as capital. I think when people think of Burford, or a funder, they think, "I just need to get money for my dispute." What can a funder offer beyond funding?

Hannah: On the funding point itself, very quickly: The capital is obviously valuable, but it goes further than that. The involvement of a third-party funder can often enable the claimant to pursue the right strategy, the best strategy to actually recover, as opposed to the strategy that is limited by the budget they have available or the budget they can get internal approval for.

Beyond that, there are probably three wider, non-financial benefits. The first is the independent diligence we carry out at the beginning of a matter. We spend a long time going through the legal merits, the budget and the strategy, and that independent third-party eye can add real value: guiding the strategy, picking up potential weaknesses, helping the client find lawyers in different jurisdictions, and so on.

Related to that is enforcement expertise. We have an in-house team of investigators as well as lawyers, so we spend a huge amount of time tracking down assets at the outset, working out which assets are easy to get to, which are more difficult, and what strategies might be required to get there.

The third non-financial benefit is the signaling effect, for want of a better phrase. Claimants often want our involvement to become known to the defendant, because it can change the dynamic of settlement discussions or of the proceedings in general. It does that in two main ways. First, it shows the defendant that an independent third party has looked at the proceedings and likes the merits enough to back the claim on an entirely non-recourse basis. Second, it shows the defendant that it isn't going to be possible to outspend or outlast the claimant in the way they perhaps thought they could.

Charlotte: We've worked together on a number of enforcement cases, and I've always been very impressed with Burford's asset-tracing capabilities internationally — I think that's a great selling point. So how do I know if my matter is suitable for funding?

Hannah: It's a question we're asked all the time, and the point I'm really keen to emphasize is that it's never too early to talk to us about a dispute. The strategy and the budget don't have to be fully formed, or even partially formed, by the time you loop us into the discussions. We're more than happy to have early conversations and to work on the strategy and budget together.

Generally, though, when we look at a case we're assessing four things. First, merits: The legal case has to be sound and strong for us to invest. Second, quantum: We normally require a minimum quantum of around $50–75 million, because there has to be enough for us to receive our entitlement while the client still retains the vast majority of the proceeds, otherwise it makes no financial sense for them to work with a funder. Third, and relatedly, the economics: Funders generally talk about a 1:10 budget-to-damages ratio. That's a crude measure with a lot of nuance behind it, but broadly, once you go beyond that ratio, it becomes very difficult to make the economics work. And finally, recoverability: we don't get our investment back unless the client not only obtains judgment but actually recovers against it, so we have to be confident there are assets available at the end of the day.

Choosing a forum: onshore, offshore and arbitration

Charlotte: Thank you, that's really interesting. Let's move to Mosab and Daniel, and think about the different options available onshore and offshore. Each of the UAE's court systems, the onshore courts, the DIFC and the ADGM, has its own strengths. What would I, as a client, need to consider when choosing a forum and deciding between onshore, offshore and arbitration? Mosaab, maybe I'll start with you.

Mosaab: Thank you, Charlotte, and thank you, Hannah, for briefing us on funding. I think it's important to start with a high-level view of the UAE legal system and how the courts operate here, because, as Charlotte said, it's quite a unique system.

We have federal courts and local courts, two different systems. The federal courts have specific and limited jurisdiction under the UAE constitution, mainly in relation to disputes between legal or natural persons and federal authorities or federal entities. Then we have the local courts, established by individual Emirates. Some Emirates, such as Fujairah and Ajman, have not yet established their own local courts, so disputes there are dealt with by the federal courts. Others — Dubai, Abu Dhabi, Ras Al Khaimah and, more recently, Sharjah — have their own judiciary and local legal systems.

What's also unique is that within certain Emirates, like Dubai and Abu Dhabi, you have civil law courts, what we call the onshore courts, a term covering both local and federal civil law courts, alongside a common law, English-speaking court: the DIFC Courts in Dubai and the ADGM Courts in Abu Dhabi.

The jurisdictional question, and I'm speaking here specifically about the onshore system under UAE law, is a statutory matter. Jurisdiction is determined, as a default position, by codified law, and the parties are not permitted to opt out of that jurisdiction where it is established under the law, subject to certain exceptions. The key exceptions are arbitration — whether domestic or foreign — and the offshore common law courts, the DIFC and ADGM.

So, for example, if you agree in a contract that the English courts will have exclusive jurisdiction over a dispute, the UAE courts will, in principle, not respect or give effect to that agreement, because it is an agreement conferring jurisdiction on a foreign court rather than an arbitration agreement, and it doesn't fall within the exception permitting parties to opt for the DIFC or ADGM courts. That exception exists under the law itself, and it isn't extended to foreign courts or even to other local courts. If your matter falls within the jurisdiction of the Dubai onshore courts and the parties have agreed to the jurisdiction of the Abu Dhabi courts, neither Dubai nor Abu Dhabi will respect that agreement so long as their own jurisdiction is established under the law.

That's why the jurisdiction question should be addressed very early, actually, at the point of negotiating the contract. Don't fool yourself: if a contract relates to the UAE, is being performed in the UAE, or involves a UAE-based party, and you agree to the exclusive jurisdiction of, say, the Swiss or English courts, that clause is likely to be problematic later. The English court will accept jurisdiction, because under English law the agreement is enforceable and mandatory, but proceedings there may lead to parallel proceedings in the UAE, because the UAE courts will also accept jurisdiction. And when you eventually obtain an English judgment, you face the question of whether it is enforceable in the UAE.

So advising clients on jurisdiction should start very early: whether to include a clause for international or domestic arbitration; if arbitration isn't of interest, what jurisdiction clause will actually be enforceable; whether to favor the onshore courts or the offshore courts in the DIFC or ADGM.

There are also certain matters that may fall within the jurisdiction of two or more systems. A key example is enforcement of foreign judgments. If you have a foreign judgment you would like to enforce in the UAE against a UAE resident or company, you have two options: apply to the onshore courts, or take advantage of the conduit jurisdiction — which I think Daniel will touch on, along with the recent debate around it — by having the judgment recognized in the DIFC and then enforced onshore in Dubai.

In my experience, this is an important question on which to advise the client. You need the capability to understand the potential problems of seeking enforcement in the Dubai onshore courts versus the DIFC — they are different legal systems with different precedents — and cost is a consideration too. Legal costs in the DIFC Courts will potentially be much higher than in the Dubai onshore courts, but costs in the DIFC are substantially recoverable, which is not the position onshore.

So yes, it's a process that requires real thought, and I would advise that it start very early — at the contract negotiation stage, with proper advice on the applicable law and the jurisdiction question. And when a dispute crystallizes, it's equally important to consider whether the jurisdiction agreement is valid and enforceable in the UAE and before the offshore courts, whether invoking it will lead to parallel proceedings between different courts, and the complications that may arise from that.

Charlotte: Thank you. What I take from that is that it's very complex, with lots of pros and cons across the different jurisdictions, and it's very important to get legal advice on it. Daniel, on the subject of jurisdiction, we often refer to the DIFC Courts as a "conduit jurisdiction." What does that mean in practice?

Daniel: Yes — Mosaab just mentioned this phrase, and when you're thinking about a matter that may touch on the UAE, where you might ultimately have assets in the UAE against which you want to enforce, this is one of the first core concepts you need to get your head around.

The "conduit jurisdiction" refers to the process by which a foreign judgment or international arbitration award — rendered outside the DIFC, perhaps outside the UAE altogether — may be enforced within the United Arab Emirates through the DIFC's offshore courts. You bring a claim in the DIFC Courts for the enforcement of the foreign judgment, with the ultimate aim of using that to secure onward enforcement in Dubai.

The basis for this is that the Dubai onshore civil courts are obliged to execute judgments of the DIFC Courts and arbitration awards ratified by the DIFC Courts. So once you have a DIFC Court judgment, it can, in theory, be enforced in the wider UAE through the Dubai onshore courts.

As well as enforcement, this jurisdiction has also been developed and used as a basis for granting interim relief, whereby parties in cross-border disputes from around the world can come to the DIFC Courts to seek interim remedies — such as freezing orders — and then use the powers of the Dubai onshore courts to attach assets in the UAE.

Interim relief tools

Charlotte: Thanks, Daniel. You mentioned interim remedies and freezing orders — let's dig into the specific tools available in the onshore and offshore courts, because I think the range of what can actually be deployed in the UAE surprises many clients and practitioners. Mosaab, from an onshore perspective, can you talk us through some of the interim relief tools available to clients?

Mosaab: Sure. Onshore, we have several key interim and summary measures. First is the precautionary attachment application, which broadly equates to a freezing injunction in the common law system, but is different in nature: it is an order in rem rather than an in personam obligation imposed by the court. If certain conditions codified in the Civil Procedures Law are met, an applicant is entitled to apply for a precautionary attachment of assets. If granted, the court will issue instructions to all relevant authorities — banks, the Land Department and others — to attach funds, shares, bank accounts and real estate, and freeze those assets so the owner or defendant cannot dispose of or deal with them in any way.

We also have the travel ban application, which can be very important where there is an imminent risk of the debtor absconding from the UAE. An important point that is often misunderstood: it's assumed a travel ban can only be invoked where the debtor is a natural person, but even where the debtor is a company — if the company is in a very bad position and being liquidated, for example — you can seek a travel ban against its legal representatives. That way, you ensure the legal representatives do not leave the UAE before the dispute is decided, where the flight risk is imminent and could lead to further dissipation of assets.

We also have — among others — a procedure by which you can seek an investigation order, which is somewhat equivalent to a Norwich Pharmacal application in the common law system: an order from the court to investigate certain information or assets, provided you have a legitimate cause to obtain that information or those documents. This application is granted sparingly by the UAE courts, and only in limited circumstances, but it does happen — and it depends on the practice of the particular court, whether federal or local, Dubai or Abu Dhabi.

These remedies are available both before and after commencing court proceedings, depending on the case. They are also available even where there is an arbitration clause or a foreign jurisdiction agreement — even where the UAE courts do not have jurisdiction to hear the substantive dispute, they remain competent to hear interim applications for relief to be enforced in the UAE.

Charlotte: Thank you. And are those tools also available following the issuance of a judgment — or is there anything specific once a judgment has been issued?

Mosaab: For sure — it depends on whether the judgment is final and enforceable. If it is, you would open what we call an execution file and seek more severe actions against the judgment debtor: Not only attaching or freezing assets, but auctioning them or collecting them in settlement of the judgment amount. If the judgment is not yet final, you cannot open an execution file, but you can seek interim measures — and such a judgment, even if not yet enforceable, gives you very good evidence in support of those interim remedies.

Charlotte: Thank you. Daniel, turning to offshore remedies — interim remedies and freezing injunctions before the DIFC and ADGM courts. These often come across our desks at Tamimi, and I know the case law is evolving — the DIFC Courts seem to change their position every month at the moment. Could you talk us through the recent cases on interim remedies and enforcement, particularly since the new court law, and explain the current position?

Daniel: Yes. Last March, a new law came into force — Dubai Law No. 2 concerning the DIFC Courts — which includes provisions on applications for interim measures and on the enforcement of judgments and arbitration awards. The key provisions to know are Article 15 on interim measures and Article 31 on enforcement.

What's happened over the last year or so is that the enactment of this new law triggered a series of arguments as to whether these provisions changed the extent of the DIFC Courts' jurisdiction and their powers to grant interim relief, including in the context of enforcement of foreign judgments and arbitral awards.

At first instance, there have been conflicting approaches over the last year, with some judges seeking to reassert limits on the DIFC Courts' jurisdiction as being confined to the DIFC itself. Why does that matter? Well, if the jurisdiction of the DIFC Courts is limited to the DIFC, the chances of there being assets within the DIFC against which you might seek to enforce, or seek interim relief, are much reduced — and the effect would be to severely curtail the DIFC Courts' jurisdiction and their ability to support foreign proceedings.

Fortunately, I think the position the courts have now reached is the right one, and there are a couple of significant Court of Appeal decisions to know about. The first is a case called Trafigura, from September last year, where at first instance the DIFC court had refused to grant a UAE-wide freezing order on the basis that enforcement should be confined to assets within the DIFC. That was overturned on appeal, with the Court of Appeal essentially confirming that the new law has not affected the previous position. The second decision, called Orchard, from May, concerned enforcement in the DIFC — and again, the court ultimately held that the new provisions have not constrained the DIFC Courts' powers to the DIFC alone.

So overall, after quite a lot of conflicting decisions, where we now seem to have landed is the DIFC Courts reasserting and confirming the breadth of their jurisdiction in relation to interim remedies and enforcement.

Charlotte: Thanks, Daniel. Are there any novel remedies that may, in theory, be available in the DIFC that we haven't spoken about?

Daniel: I'm not sure I'd call them novel, but in theory the remedies available in the DIFC Courts — and likewise the ADGM Courts — are those equivalent to what's available in the English courts and other common law courts. The obvious examples are freezing orders, search orders and imaging orders. But much as the English court has developed its powers to grant ancillary orders alongside those remedies, it's in theory possible for the DIFC court to do likewise. That may encompass passport orders, where the court restrains a respondent from leaving the jurisdiction or requires them to hand over their passport; orders for disclosure of information about the source of legal funds; orders requiring people to sign mandates for banks or email account providers to disclose information; delivery up of computers and mobile phones; and orders to provide passwords.

So all the types of ancillary remedies you might obtain in other common law courts alongside freezing and search orders are, in principle, things to think about in the DIFC and the UAE — although there will obviously be a question with some of these about how you enforce them effectively, and that's something to consider if these are the sorts of remedies you want to pursue.

Charlotte: We mentioned using the DIFC as the conduit jurisdiction — our favorite phrase — and we often see clients obtain a freezing order in the DIFC, for example, and then enforce it onshore. Mosab has covered how he advises clients on onshore, offshore and arbitration, but in terms of deciding which jurisdiction to move in first, how would you approach that?

Daniel: If you're thinking in terms of a Dubai-to-Dubai strategy, the key is coordination — how you can use the onshore and offshore jurisdictions effectively together. If you're seeking the common law types of interim relief we've just been discussing — freezing orders, ancillary orders, asset disclosure — then your starting point is likely to be the DIFC, and you'd then think about how to use the DIFC's orders onshore to make them effective more generally in the UAE.

For cross-border cases — picking up something Hannah said at the outset — you'll be thinking about where the assets you ultimately want to reach are located. You may have the option of seeking interim remedies in a number of common law jurisdictions: you might have grounds for a freezing order in England, Hong Kong or the DIFC. In those circumstances, you'll want to weigh up which will be most effective in securing the assets you might ultimately want to enforce against, and where the respondent lives.

As I said at the outset, there's a tendency to focus on our own jurisdiction and look at things too narrowly. But whether you're an English lawyer, a Hong Kong lawyer or based anywhere else, the DIFC and ADGM courts may be a good option for seeking interim relief in support of your claims if there are assets or connections here.

Restructuring and insolvency

Charlotte: Thanks, Daniel. Last but not least, Jen — when things go wrong. We'll turn to the end of the dispute life cycle, when a business is in real financial distress. I know you've been at the center of some of the most complex and high-profile restructuring matters in the region — KBBO and NMC, which our audience may have heard of — matters that have really tested and shaped the UAE's restructuring and insolvency framework. Can you tell us more about those cases?

Jen: I can — but the first thing I'll challenge is the phrase "when things go wrong," because the key message I want to get across today is that insolvency isn't about failure. It's about creating breathing space and options when a business is in financial distress — providing a formal framework that allows management to stabilize the business, protect value, and focus on outcomes rather than firefighting. While it's often seen as a last resort, it can be a very effective tool, particularly when used early — and KBBO is a great example of that.

KBBO was the first complex restructuring under the UAE Bankruptcy Law to be approved not only by the creditors but also by the court. It involved 29 applicants plus the two debtors, and around $12 billion of debt with highly complex guarantee and security arrangements across the whole group. One of the most significant aspects of the case — which is still ongoing; we were appointed in 2021, so five years now — was the adjudication of creditor claims, particularly given the intricate security and guarantee positions, not only within the KBBO group itself but with external parties too. You mentioned NMC, and there were connections even at the debt level: some debts had been lent to NMC but guaranteed by KBBO entities, creating additional layers of complexity in determining creditor rights and recoveries. As independent trustees, we had to adjudicate those claims while ensuring fairness and transparency throughout the process.

Another point worth highlighting: we successfully raised super senior new money under the legislation — approximately $185 million of new funding — which provided the liquidity needed for Emirates Hospital Group to continue trading while we negotiated and implemented the restructuring proposals. That was a first of its kind in the region.

The case also demonstrated several important features of the UAE's restructuring framework. There's a moratorium, which creates the breathing space needed to formulate and negotiate restructuring plans — on KBBO there were nine restructuring plans, involving extensive engagement with creditors and shareholders, whose agreement we needed. Creditor committees played a really important role by providing active creditor participation, which helped build confidence throughout the process. And ultimately — most importantly — it successfully preserved over 2,000 jobs, maintained public access to essential healthcare through the Emirates Hospital Group, and supported the local economy. It delivered a far better outcome than an immediate liquidation would have achieved.

The broader significance, for me, is that KBBO demonstrated that the UAE's restructuring framework is now capable of dealing with highly complex, multi-entity restructurings involving diverse creditor groups and sophisticated financing arrangements. It has really helped build confidence in the market that restructuring is not a sign of failure but a strategic mechanism for preserving value and rescuing viable businesses.

Charlotte: That leads into my next question, which you may have partly answered: you've been working on KBBO for five years — how has the landscape evolved, and how have the restructuring laws developed as a result of those cases?

**Jen:** As I mentioned, cases like KBBO have been instrumental in demonstrating that there is a robust legal framework here that enables successful restructurings, tested in some of the region's most complex matters — and we've also had the likes of JBF RAK and Drake & Scull, which have delivered successful outcomes. The restructuring and insolvency landscape has evolved significantly over the last few years, demonstrating that there are options — strategic tools to maximize value for creditors, preserve viable businesses and achieve better outcomes for all stakeholders.

Importantly, we've also seen updates to the law. There were amendments to the UAE Bankruptcy Law in 2023 which further strengthened the restructuring regime, and as part of that, a specialized court and the Bankruptcy Administration Unit have helped build expertise and improve the consistency of decision-making and confidence. As the courts gain experience through more complex restructurings, the framework continues to mature.

Compare that with somewhere like the UK — and I know many people on this webinar are based there — where the insolvency and restructuring regimes have been in place for centuries, are well understood and widely used. Here, there is still change needed. It's all about earlier engagement and education: leaders still need to see restructuring not as a last resort but as an option that can protect their business, employees and creditors. As the market sees more successful outcomes, that shift will happen — but it's an evolution rather than an overnight change.

**Charlotte:** And I suppose that reflects the success of both of the cases you've worked on. What does that signal to international investors about the UAE as a place to do business?

**Jen:** Businesses do fail — that's a natural part of any economy. What investors and lenders expect is a predictable legal framework that clearly sets out their rights and provides mechanisms, if needed, for enforcement or restructuring when a business experiences financial distress. As the restructuring and insolvency framework continues to mature, it increases confidence among banks, private credit funds, investors and international lenders, and it's clear the UAE is becoming more aligned with international best practice. We now have recognized court processes and tools, and mechanisms for balancing the interests of debtors and creditors — all of which supports investment into the region, encourages foreign direct investment and international capital, and supports the continued growth of private credit markets.

From my perspective, a strong restructuring regime isn't just about corporate distress — it's an important part of a healthy investment environment. Investors are far more willing to deploy capital where they understand the rules that apply if circumstances change and a business comes under distress. So, to conclude: it provides confidence that there are credible mechanisms to preserve value, rescue the business and deliver a fair outcome for creditors.

**Charlotte:** You've touched on the misconception that insolvency automatically means liquidation and doom and gloom — and the toolkit is obviously much broader than that, as the KBBO and NMC cases show. Can you walk us through some of the options available onshore and in the free zones, and the circumstances in which each approach may be most appropriate?

**Jen:** Sure. In reality, liquidation is only one option, and as I mentioned, it's normally the last resort. Part of understanding the available options — and we've touched on this — is understanding where the company is incorporated, where the debt sits, where security has been granted and over which entities, where the assets are located, and which court has jurisdiction. In a group structure, those factors can vary considerably, so determining the right strategy is not only a legal exercise but a commercial one, before you even start thinking about which formal process might apply.

The other point I'd make before running through the options is that the preference is always to try to achieve a consensual, out-of-court restructuring if you can. If lenders and stakeholders are aligned, it's less costly and less disruptive to the business. But in certain circumstances consensus can't be reached — and that's why it's been so encouraging, being here as the market matures, to see that we now have a comprehensive toolkit of formal insolvency procedures.

Onshore, under the UAE Bankruptcy Law, there is preventive settlement — an option for businesses experiencing financial difficulty but with an underlying viable business. It's a debtor-led process: management remains in control while proposing a settlement with creditors, and once the court accepts an application there is a moratorium preventing creditors from taking enforcement action — initially three months, which can be extended — giving the company breathing space to negotiate.

You also have restructuring procedures, as we had on KBBO, where the objective is to rescue the business. Existing management continues to operate, but under the supervision of a court-appointed trustee who oversees the restructuring process — including adjudicating creditor claims within the tight timeframes under the law, and working with stakeholders to develop the restructuring plans. The plan must be approved by a majority of creditors and sanctioned by the court, and again there is a moratorium. These proceedings can be initiated by the debtor or by a creditor, depending on the statutory requirements.

And lastly, if the business cannot be rescued, you have bankruptcy proceedings — effectively liquidation. I won't dwell on that, but a liquidator would realize the assets, distribute proceeds in accordance with the priority of claims under the law, and possibly investigate liquidation claims, such as antecedent transactions occurring pre-appointment.

Moving to the free zones — the DIFC and ADGM, offshore — the framework is based on common law principles, so many international investors, and probably many on this call, will recognize the procedures. Both jurisdictions provide for administration, where an independent insolvency practitioner is appointed to rescue the company as a going concern, in order to achieve a better outcome for creditors than an immediate liquidation, with a moratorium in place during the process. There's also receivership, which is a secured creditor remedy: rather than rescuing the whole business, a receiver is appointed over specific secured assets to realize their value for the benefit of the secured lender.

A couple more under each jurisdiction: in the DIFC you have the CVA — the company voluntary arrangement, which is not court-driven — allowing companies to reach a compromise with creditors while management remains in control; and rehabilitation plans, which have been discussed in the market more recently — a debtor application under a supervised restructuring mechanism. In the ADGM, you have deeds of company arrangement, allowing creditors and a company to agree a compromise following the appointment of an administrator, and liquidation is available too.

To summarize, all three jurisdictions share the same objectives: providing businesses with a range of options to preserve value where rescue is viable, and ensuring an orderly and transparent process. Outside those jurisdictions, there are — off the top of my head — over 40 other free zones, such as DMCC. They do not have standalone insolvency regimes of the same depth, but tend to rely on the applicable UAE insolvency legislation.

My key message is that businesses in the region today have far more options than they did previously — and the earlier management seeks advice, the more of those options remain available. Once liquidity is under pressure and stakeholder confidence has been lost, those choices can narrow very quickly. Early engagement gives businesses the best opportunity to restructure and preserve value, and — the key theme here — to achieve a better outcome for creditors, employees and all stakeholders of the business.

## Looking ahead: the next 6–12 months

**Charlotte:** Thanks, Jen — that was really interesting. My closing question is for all of you. I don't think we can finish this session without speaking about the regional conflict, which we hope is now behind us. The Strait of Hormuz has seemed to open, reopen and close every day, which makes life very interesting in the region at the moment. As litigators, difficult periods in the market always make us busier — so what do you anticipate for the region in the next six to twelve months? Mosab, perhaps I'll start with you.

**Mosab:** I think we experienced something of a shock in the market and in litigation at the very beginning of the regional conflict, and we witnessed a spike in disputes emerging as a result of it — a conflict that hopefully is settled, or will be settled very shortly. But as time passed, I think people realized the situation was not what they had feared at the outset, and we've seen a tendency toward amicable settlement and negotiating disputes rather than escalating them immediately to the courts or arbitration — a recognition that doing so in such market conditions is not a win-win. That has somewhat slowed the surge in litigation we saw at the beginning, and I would expect that we are now almost back to normal. For the coming six to nine months, I would hope we're back to business as usual and that the instability will have been dealt with by then.

**Charlotte:** That's good to hear. Daniel, do you share Mosab's view, or do you have a different one?

**Daniel:** Well, hopefully we won't be seeing any more arguments about whether the DIFC Courts have jurisdiction in relation to interim remedies and enforcement. Now that the DIFC Courts have given the green light, and lawyers around the world with cross-border claims are becoming more aware of it, perhaps we'll see a continued increase in parties coming to the DIFC Courts for interim remedies — especially because more and more money is flowing through here, and there are plenty of assets to enforce against.

**Charlotte:** Thank you. And Hannah — anything from a litigation finance perspective?

**Hannah:** I would echo that. Historically, disputes and demand for funding tend to be quite countercyclical, so periods of uncertainty can often produce more disputes and greater financial distress. During those times, clients become far more focused on preserving their capital, managing their litigation risk and pursuing recovery as effectively as they can — which, arguably, are things they should be doing all the time.

**Charlotte:** And Jen, anything from your perspective?

**Jen:** There are certain sectors — hospitality and hotels, for instance — where we've really noticed the effects. It's inevitable that businesses have felt the impact of the region's uncertainty, but I suspect some of the distress will only become apparent later this year or early next year, particularly because businesses are currently trying to stabilize: managing cash flow, reworking forecasts and working with their financiers.

One thing we've consistently seen in the UAE is the willingness of the authorities to support businesses. The Central Bank has rolled out a resilience package, and we understand from speaking to people in the market and to clients that the banks are working constructively with their borrowers through payment deferrals and covenant issues. Another point, touching on the Bankruptcy Law: Part 5 of the law — the emergency financial crisis provisions — has been brought into force, temporarily restricting creditor-initiated insolvency proceedings in order to give breathing space to businesses suffering financial distress due to the current regional uncertainty. There's no clear end date for that at this stage, so I think we'll have a better understanding of the impact on the market later this year and certainly early next year.

## Audience Q&A

**Charlotte:** Thank you — and that concludes our session today. We've run over by a few minutes, but if our guests are able to stay, I'll open the floor to audience questions. Please pop them in the Q&A box.

There's one question for you, Jen: "Would you say that the growing availability of financing solutions — private credit investors attracted to the UAE market as it matures — could delay restructuring exercises that would otherwise have been conducted as part of a capital allocation review? My point is that this inflow of investment could perhaps leave undetected various problems in how a given business is currently structured, or how it has structured its road map."

**Jen:** Rather than answer that on my feet, I might take that one away.

**Charlotte:** Okay — we have the questioner's name, so we can come back to that one. Hannah, you mentioned legal finance — is there a difference between legal finance and funding?

**Hannah:** Not a difference as such, but I think of funding as a subset of legal finance. Funding is what most people think of when they think of what a legal finance provider does — funding the fees and expenses of a particular claim. But legal finance has evolved over the years into quite a lot more than that: monetization of claims, assignment of claims, portfolio funding, law firm arrangements, law firm equity, and a whole host of other structures that could easily fill another webcast — though I'm not sure how many people would want to join that one!

**Charlotte:** Very interesting — Hannah, put yourself down to go into more detail if anybody wants to know more. And there's one final question, for you, Mosab, unless anyone else has any last questions: what are the common mistakes you see parties make when seeking interim relief onshore, and how do you avoid them?

**Mosab:** One of the common mistakes is relying on cogent, very strong evidence without considering the practical experience and practice within the specific local court from which you're seeking the injunction. With interim and summary reliefs in particular, before initiating proceedings you need to understand not only which court you're applying to and its practice, but sometimes also which judge is currently supervising these matters — their tendencies, their practical approach, and the kind of evidence they look for. We're dealing with a process in which there is no oral submission, no hearing, and often no reasoning: the judge simply says yes or no, and in some circumstances your application may be dismissed without your knowing the reasons. In the Dubai courts, for example, that is the practice, whereas the Abu Dhabi courts give reasons for dismissing or granting an application. Currently there is a specific judge in the Dubai courts supervising summary matters, and we're seeing a shift in the practice. So those practicalities are, in my view, crucial — because it's essentially one shot: either you get it or you don't.

**Charlotte:** And I think that's all of our questions. Thank you to our panelists for your insights. My key takeaway from today's session is that the title really does reflect the reality: there are many tools available, but the key to optimal outcomes is thinking about them all together — and doing so as early as possible. Thank you very much, and thank you also to Thought Leaders for organizing this, and to Jamie. If anyone has any further questions, I'm sure our panelists will be very happy to connect with you and answer them.