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The Key
Winter 2012
Arbitrating in Dubai
These are interesting times for dispute resolution in the emirate.
The global financial crisis threw
much of Dubai’s property
development industry into disarray.
Many overseas purchasers who had
bought properties off-plan found
that the relevant development had
been cancelled, shelved or
subjected to an indefinite go-slow.
Inevitably, this led to a wave of disputes as
purchasers attempted to recoup their
investments. In the case of the governmentowned
DP World and its affiliates, the Dubai
administration went so far as to create a Special
Tribunal to deal with the large number of claims
being brought against it. However, this
mechanism was not available to those who
bought from private developers. In most of these
cases, the contracts contained arbitration
clauses – usually naming the Dubai International
Inside this issue:
Page 3
Managing risk in Denmark
A look at the insurance and liability risk
management problems for Danish industrial
companies.
Page 5
Why D&O insurance matters
Two recent headline cases underline the value
of directors and officers liability insurance.
Page 7
Taking a consistent approach
The EU proposes a major overhaul of the
medical devices rules.
Page 9
A useful purpose
English judges have recently had important
things to say about jurisdiction and choice
of law.
Page 11
Developments for the Dubai
& Hong Kong offices
1

Arbitration Centre (DIAC) as the body whose
rules would govern the arbitration. It is therefore
not surprising that a large number of arbitrations
have been launched in the DIAC, often by
property owners seeking redress in
circumstances where the property they had
bought off-plan had still not been delivered
several years after the due date.
Enforcing awards
While arbitration proceedings are private, it is
widely understood that a great many of these
claims have succeeded. The failures have largely
been claims started before the “drop dead” date,
when, under the contract, the purchaser became
entitled to cancel the contract, or where the
developer has succeeded in extending that date
because of a force majeure event.
So far, so good. But where a respondent opts
not to perform the terms of an award, the
claimant is left with the task of enforcing it
through the courts. This is much the same in all
jurisdictions except that, in the Middle East,
enforcement tends to be necessary rather more
often than in other parts of the world.
Historically, there has been a perception that
courts in the Middle East are prepared to search
for reasons not to enforce awards.
Since the issue concerned the
distribution of wealth, that
made it a matter of public
policy, said the court, and
consequently something
that could only be dealt
with by judges.
Recent developments
Two recent and seemingly inconsistent
developments have given cause for thought.
The first is the decision of the Dubai Court of
Cassation – Dubai’s highest court – to ratify
an overseas award so that it could be enforced
against assets owned in the emirate. This has
rightly been heralded as a sign that the United
Arab Emirates regards its obligations under the
New York Convention on Enforcement of Arbitral
Awards seriously and is attempting to send a
clear signal that the UAE is indeed an
international hub for arbitration.
It may be that legislation will
be introduced to prevent an
over-zealous adherence to
Decision No 14.
However, the Court of Cassation has also
recently handed down Decision No 14 of 2012.
This concerned an application to ratify the
decision of an arbitrator in a domestic
arbitration. The claim concerned a part of the
Waterfront development, where one of the
phases of the Palm Jebel Ali has seemingly been
mothballed. The purchaser of a property in that
development complained that it had not been
handed over in accordance with the contract
and that his title had not been registered with
the Real Estate Regulatory Agency (the
equivalent of the English Land Registry),
contrary to the relevant statutory rules.
The claimant wanted an order cancelling the
contract and ordering repayment of the sums
he had paid to date, together with damages.
The arbitrator ruled in favour of the purchaser.
The Dubai Court of First Instance and Court of
Appeal gave leave for the award to be enforced.
However, before the Court of Cassation, the
developer argued that the decision of the
arbitrator breached public policy. Since the issue
concerned the distribution of wealth, that made
it a matter of public policy, said the court, and
consequently something that could only be dealt
with by judges.
Strong reactions
The decision has provoked strong reactions.
Some commentators say that it calls into doubt
the availability of arbitration as a remedy in any
property-based dispute. Others believe that the
decision should be regarded as particular to its
own facts and, in large measure, the result of a
very restrictive interpretation of the registration
regulations.
Another line of argument is that since the UAE
has a civil law system with no doctrine of
precedent, the case is necessarily a one-off.
Conversely, it has been said that subsequent
benches of the Court of Cassation are in fact
likely to follow this case out of intellectual
consistency. Interestingly, the lawyers who
advanced the public policy argument – members
of the Dubai office of an English law firm – have
gone so far as to issue a press release in which
they say that suggestions that they have
undermined the basis for arbitrations in Dubai
are greatly exaggerated.
Where this might leave us
The courts of Dubai are unpredictable. It may be
that legislation will be introduced to prevent an
over-zealous adherence to Decision No 14. But
until that happens, there is a risk that this case
will be used to argue that parties cannot pursue
arbitration. However, at the same time, the
Dubai courts are being encouraged to uphold
arbitration clauses. The danger is that the
resulting dilemma may result in parties being
deprived of any remedy at all. That fact alone
may be enough to ensure that the case is not
widely followed.
Nick Carnell
Partner
Dubai
n.carnell@kennedys-law.com
2

Managing risk in Denmark
A look at the insurance and liability risk management problems for Danish industrial companies.
In Denmark, most companies in
the building, machinery and trade
industries have a combined
commercial and product liability
insurance cover issued on standard
terms and conditions drafted by
The Danish Insurance Association
and approved by the Confederation
of Danish Industry.
Under this insurance, the insured company:
• has insurance cover for product liability in
respect of damage to other products;
• may have partial insurance coverage for
liability for defects if the insured company’s
products are made part of or are incorporated
in another product (defined in Denmark as
ingredients or components); but
• does not have any insurance coverage for
delay.
…it is important for Danish
companies that liability for
indirect loss or for delay is
either waived entirely or
strictly limited.
As a general rule, the insurance also does not
cover the insured company’s liability for
operational loss or various other types of indirect
loss suffered by the injured party (irrespective of
whether the injured company is a customer or a
third party).
If liability is waived, the
company is not liable under
generally applicable rules of
law and the insurance does
not provide coverage.
In addition, the standard policy says that:
• the insured company will be liable to the
injured party in accordance with generally
applicable rules of law; and
• the insured company must not have waived
its right to recourse against sub-suppliers.
Focusing on customers
Given the terms and limitations of this combined
cover, Danish companies have therefore had to
focus strongly on risk control in their contracts
with customers.
So, for example, it is important for Danish
companies that liability for indirect loss or for
delay is either waived entirely or strictly limited
since the standard insurance does not cover
these types of loss.
As regards liability for defects and product
liability – which is covered (at least to some
extent) by the standard insurance – it is
important that a company does not waive such
liability entirely or at least agrees to strict
limitations if the company wants to accept
liability (for example, as regards an important
customer). If liability is waived, the company is
not liable under generally applicable rules of law
and the insurance does not provide coverage.
…contractual risk management
is a fine balance between not
assuming such extended liability
and not waiving insuranceprotected
liability entirely.
On the other hand, it also important that the
company does not assume an extended liability
beyond that which is normally imposed under
generally applicable rules of law. For instance,
warranty liability – which is a common feature in
several European countries as well as in the US –
would be regarded as an extended liability when
compared to general Danish law. If the insured
company is liable because of a warranty provision
in the contract but would not have been liable
under generally applicable rules of law, then the
insurance contract will not provide any protection.
Consequently, for Danish companies, contractual
risk management is a fine balance between not
assuming such extended liability and not waiving
insurance-protected liability entirely.
However, a company’s risk management
strategy should not focus solely on its
customers. It also needs to ensure that their
purchasers do not accept subsupplier’s terms
and conditions for sale that include waivers or
strict liability limitations.
Standard industrial terms
Of course, it would be desirable if the industrial
standard terms and conditions provided a fair
balance of risk for purchasers and the sellers of
goods and services. The contracting parties
would find it much easier to control their risk if
such standard industrial terms:
• contained strict limitations or waivers
regarding the types of losses that were not
covered by insurance (such as indirect loss
and delay); and
• imposed liability only in accordance with
generally applicable rules of law backed by
monetary limitations (for example, DKK1m)
3

on the types of loss that are covered by
insurance (such as liability for defects and
product liability).
Unfortunately, the usual Danish standard terms
and conditions do not provide such a fair
balance, and the risk problems of most
companies are not solved by using industrial
standard terms.
We hope that this brief article has given the
reader a helpful introduction to the risk
management problems for insured companies
in Denmark. If you have questions or
comments, please contact Erritzøe partners
Morten Erritzøe Christensen (mec@adve.dk)
or Allan Kvist-Kristensen (akk@adve.dk).
Building and machinery
In the building industry, the general conditions
for the provision of works and supplies in the
building and engineering sectors (AB92) do not
waive indirect loss due to product liability
damage. If after delivery a contractor’s products
or services damage third-party property (for
example, a supplied defective heating plant sets
fire to a manufacturing building), the injured
party may claim damages from the contractor
for the operational loss stemming from the
damaged manufacturing building. If the injured
party’s building insurer covers operational loss,
then it will also be able to claim damages from
the contractor, even though the contractor does
not have insurance coverage for such loss.
In the machinery industry, the Nordic general
conditions for the provision of works and
supplies in the building and engineering sectors
(NL92) limit the supplier’s liability for defects to
the invoiced value of the defective product plus
15 %, and the supplier’s product liability is
almost completely waived. Consequently, the
supplier does not have insurance coverage if,
despite using NL92, it wishes to accept liability
in respect of its most important customers.
Author
Erritzøe Law Firm
Kennedys associate office
4

Why D&O insurance matters
Two recent headline cases underline the value of directors and officers liability insurance.
It would be interesting to see who
would finish where in a popularity
league table that included Preston
North End football club chairman
Peter Ridsdale and the directors of
Farepak. However, the last few
weeks have seen a clear division in
their fate following director
disqualification proceedings.
The case of Peter Ridsdale
Mr Ridsdale is perhaps best known for his role
at Leeds United FC during their rise and
subsequent downfall in the early 2000s. He has
now given an undertaking barring him from
acting as a company director – and from
managing or in any way controlling a company –
for seven and a half years.
The ban relates to his conduct as a director of
WH Sports Group Ltd (WHSG), a company that
Mr Ridsdale used to provide sports and leisure
consultancy services to football clubs. The
undertaking has the same effect as a
disqualification order made by a court and is
therefore legally binding. In signing it, Mr
Ridsdale did not dispute the following facts:
• Between May 2007 and March 2009, he
acted improperly and in breach of his duties
to WHSG by channelling £347,000 into his
5

personal bank account when that money had
in fact been paid for services provided by
WHSG to a football club of which Mr Ridsdale
was the chairman.
• He did not disclose the relevant transactions
to WHSG’s liquidator, who was subsequently
told about them by the football club.
• He failed to ensure that WHSG complied with
its statutory obligations to make tax returns
and payments to HMRC as and when they
were due.
• On three successive occasions, he failed to
ensure that WHSG complied with its statutory
obligations to prepare and file accounts.
The judge took the unusual step
of issuing a statement which
exonerated the directors and
criticised the action brought by
the secretary of stateeffect as
a disqualification order made
by a court and is therefore
legally binding.
The Farepak directors
The outcome in the Ridsdale saga contrasts with
the collapse of the case brought by the secretary
of state for the Department for Business,
Innovation & Skills (BIS) which attempted to
disqualify the former directors of Farepak.
Farepak hit the headlines in 2006 when over
tens of thousands of its customers lost
“deposits” to secure their Christmas and other
These two cases illustrate the
importance of D&O cover, with
Mr Ridsdale’s ban a high-profile
example of the penalties that
can be imposed in the highly
regulated world in which
directors operate.
food and retail vouchers. Fourteen days into
the trial, the secretary of state decided to
discontinue the proceedings. The judge took
the unusual step of issuing a statement which
exonerated the directors and criticised the
action brought by the secretary of state.
Recently, it has been reported that the
Insolvency Service (an executive agency of BIS)
faces a legal bill of more than £6m, with £5.1m
going towards the legal costs of the Farepak
directors who had challenged the ban. Good
news for the Farepak directors then, if not
the taxpayer.
Comment
These two cases illustrate the importance of D&O
cover, with Mr Ridsdale’s ban a high-profile
example of the penalties that can be imposed in
the highly regulated world in which directors
operate. The case against the Farepak directors,
on the other hand, points up the costs that can be
involved in defending any such regulatory action.
Without D&O cover, a director may have to selffinance
any proceedings in which they are
involved, or alternatively find a legal
representative who is happy to act on a
no win/no fee basis. However, not all directors
will be able to afford the first course of action
and the no win/no fee option may not always be
available. A third source of funding might be the
company itself, but this may be unlikely in cases
similar to the two present ones.
In a case where a director is seeking cover under
a D&O policy in respect of disqualification
proceedings, the insurers will need to be
satisfied that adequate disclosure was provided
before the inception of the policy and that the
matter has been notified in compliance with the
policy’s provisions. Further, the nature of any
allegations made and the proceedings
themselves will have to be carefully considered
since any findings or admissions of dishonesty or
unlawful profit by a director will often justify the
withdrawal of insurance cover.
If disqualification proceedings are unsuccessful,
D&O insurers may be entitled to recover any
indemnity provided should costs be awarded
against the Secretary of State for BIS.
Donal Clark
Solicitor
London
d.clark@kennedys-law.com
6

Taking a consistent approach
The EU proposes a major overhaul of the medical devices rules.
The European Commission has
recently published its plans for
revising the current regulations
governing medical devices in
Europe. The new proposals aim to
ensure that the rules for such
products are applied consistently
across all EU member states. If
implemented, they will cover all
medical devices marketed within
the EU and replace the current
directives dealing with medical,
active implantable medical and in
vitro diagnostic medical equipment.
The proposals come at a moment when the
current regulatory system is under close
scrutiny, following the recent controversy over
the manufacture of silicone breast implants by
the French company, Poly Implant Prothese,
which did not conform to specification.
The proposals will affect
everyone who is involved in
the manufacture of medical
devices and their supply to
patients and consumers.
Background to the proposals
The scope of these proposals is extremely wide,
encompassing the whole range of medical
devices from the simplest of products such as
sticking plaster to the most sophisticated x-ray
and life support machinery. The proposals will
affect everyone who is involved in the
manufacture of medical devices and their supply
to patients and consumers.
Key points
The legislation will take the form of regulations
rather than directives. Whereas a directive
would require transposition into the law in each
Member State, the use of regulations ensures
they will come into effect immediately in all
EU countries.
The key changes can be summarised as follows:
• The definition of medical devices will be
widened and clarified to ensure that all
devices are assessed for safety before being
placed on the EU market.
• There will be stronger supervision of national
“notified bodies” by EU Member States –
the independent assessment organisations
tasked with granting pre-market
authorisations – to ensure effective
premarketing assessment of devices.
• Notified bodies will also be given greater
powers to ensure quality control. This will
include being able to make unannounced
factory inspections and carrying out sample
testing on devices.
These proposals will result in
far closer monitoring of the
manufacture, distribution and
post-marketing surveillance of
medical devices within the EU.
• A unique device identification (UDI) system
will be introduced for all devices with the aim
of improving post-market traceability and
speeding up alert notifications.
• A centralised EU-wide database will be
created where manufacturers, their
authorised representatives and importers will
register themselves and their products,
making use of the UDI system.
• Manufacturers of high-risk devices will have
to provide summaries of safety and clinical
data for such equipment and make this
information publicly available.
• Manufacturers will be required to have at
least one ‘Qualified Person’, as defined by the
regulations, who is responsible for compliance
with medical device regulatory requirements.
• The European databank on medical devices
will be further developed so as to improve
transparency and public access.
• There will be better market surveillance and
vigilance, supported by “national competent
authorities” such as the UK’s Medicines and
Healthcare products Regulatory Agency
(MHRA), which is responsible for ensuring that
medicines and medical devices work and are safe.
• An EU-level medical device co-ordination
group, staffed by experts, will be established.
It will scrutinise devices before they are
placed on the EU market and keep the
European Commission advised about
implementation of the new regulations.
Too much regulation can delay
life-saving products coming to
market and undermine research
and development.
Comment
These proposals will result in far closer
monitoring of the manufacture, distribution and
post-marketing surveillance of medical devices
within the EU. However, they are more of a
7

strengthening of the existing rules rather than a
total overhaul.
Concerns are already being raised within the
industry that increased levels of scrutiny and
monitoring will lead to delays in bringing new
medical devices to the marketplace.
It is essential to maintain the economic and
commercial viability of products. Too much
regulation can delay life-saving products coming
to market and undermine research and
development. The European Commission has
acknowledged that the medical device and in
vitro diagnostic medical devices sectors – which
employ more than 500,000 people in about
25,000 companies – are key drivers when it
comes to European economic growth. This is
especially important given that 80 percent of
European medical device manufacturers are
small to medium-sized companies (SMEs)
The changes are designed to promote innovation
by not overburdening manufacturers with
complex and unworkable rules.
What happens next?
The new proposals will be considered by the EU
parliament and the European Council. At present,
the target date for the legislation to be adopted
is 2014, with the new regulations being brought
into effect on a staged basis of possibly up to
five years.
Michael Goldberg
Solicitor
London
m.goldberg@kennedys-law.com
8

A useful purpose
English judges have recently had important things to say about jurisdiction and choice of law.
When deciding whether it has
jurisdiction to hear a dispute
already subject to foreign
proceedings, a key test for an
English court is whether the English
case would serve a useful purpose.
In the recent case of Faraday
Reinsurance Co Ltd v Howden
North America Inc [2011] EWHC
2837 (Comm), Howden – the
insured – argued that an order by
the English High Court allowing
Faraday – an excess insurer – to
serve notice of proceedings out of
the jurisdiction should be set aside.
In those proceedings, Faraday was seeking a
declaration that the key insurance contract
between itself and Howden (which was already
facing substantial insurance-related claims in
Pennsylvania) was governed by English law
and jurisdiction. In effect, Faraday wanted a
declaration that it was not liable (or possibly
only had very limited liability) for the
Pennsylvanian claims.
Since 1999, claims had been
brought against Howden in the
US, alleging personal injuries
caused by exposure to asbestos.
In front of the Court of Appeal, Howden argued
that the English proceedings served no useful
purpose and therefore should be set aside. The
court, however, concluded that the first instance
judge, Mr Justice Beatson, had clearly been
aware of the need to show useful purpose, and
(in the words of Lord Justice Longmore) “the
court should be slow to interfere” with the
judge’s exercise of discretion on this issue.
Consequently, Howden’s appeal failed.
Following the August 2010
notification, Faraday realised
that it had to protect itself,
especially as regards the 1998
policy which was silent on the
issues of law and jurisdiction.
Background
Howden is an international engineering group. It
had various primary and excess product liability
policies that had mainly been written in the US
by US insurers. These included three excess layer
policies originally written by General Star
International Indemnity Ltd and transferred to
Faraday in November 2010. The three policies
provided consecutive cover from 1998 to
2001. The second and third policies had English
law and jurisdiction clauses but the 1998 policy
was silent on these two key points.
Since 1999, claims had been brought against
Howden in the US, alleging personal injuries
caused by exposure to asbestos. Howden started
coverage proceedings against excess insurers
(but not Faraday) in Pennsylvania in 2009.
However, in August 2010, the engineering
group gave precautionary notice to higher-level
excess insurers, including Faraday. Four months
later, Faraday issued proceedings in England,
seeking a declaration that the three policies
were governed by English law. In March 2011, it
was given permission to serve the claim form
outside the jurisdiction.
In April 2011, Howden wrote to Faraday
promising not to make a claim under the second
and third excess policies. The English
proceedings were served on the engineering
group two months later. Howden then joined
Faraday to the further coverage proceedings it
had started in Pennsylvania in 2011, and applied
to set aside the English court order allowing
service outside the jurisdiction.
Faraday’s position
Following the August 2010 notification, Faraday
realised that it had to protect itself, especially as
regards the 1998 policy which was silent on the
issues of law and jurisdiction. This was because
Pennsylvanian and English courts take very
different approaches to asbestos-related claims:
• Under English law, exposure to hazardous
substances is not in itself an injury. US courts,
though, apply the theory of multiple triggers,
under which all policies in force (from the
initial exposure through to the manifestation
of the injury) respond to the claim.
• Under English law, the period of insurance is a
fundamental provision of the policy as liability
is limited to that period. The position is
different under Pennsylvanian law.
…the fact that an English court’s
decision might be disregarded
by a judge in Pennsylvania did
not rob such proceedings of
their useful purpose.
Challenging the original order
Howden tried to set aside the original order
allowing Faraday to serve notice of the
proceedings outside the jurisdiction by arguing
two things:
(1) The proceedings did not serve a useful
purpose as Howden had already given an
undertaking not to make a claim under the
second and third policies and an English
court’s judgment on the 1998 policy would
not stop a Pennsylvanian court from reaching
its own decision.
9

(2) Pennsylvania was the appropriate forum
because of the long-standing proceedings
between Howden and its insurers.
Howden said that the negative declaration
sought by Faraday did not meet the utility test
set out in New Hampshire Insurance Co v Philips
Electronics North America Corp [1998] CLC
1062. An English court can grant a negative
declaration if that would be useful but it will not
make such a declaration if it would be premature
or hypothetical to do so (for example, where no
claim was made or threatened).
…a judge is entitled to take a
broad view and agreed with Mr
Justice Beatson that Faraday
had demonstrated that the
proceedings met the utility test.
Mr Justice Beatson agreed that the second and
third insurance policies did not meet the utility
test and set aside the order for service insofar as
it related to those two contracts. However, he
ruled that Faraday did have a legitimate interest
in having a judicial ruling on the law applicable to
the 1998 policy: the fact that an English court’s
decision might be disregarded by a judge in
Pennsylvania did not rob such proceedings of
their useful purpose.
The judge also rejected the argument that, even
if the first policy was ultimately governed by
English law, Pennsylvania was still the right
forum. An English court, he decided, was the
more appropriate tribunal to determine issues of
law and the construction of policy wording.
Furthermore, if evidence was required in a trial,
10
the relevant broker, underwriter and
representatives of Howden were all in the
United Kingdom.
Appeal to the Court of Appeal
Howden appealed against Mr Justice Beatson’s
decision on the grounds that he had failed to
give adequate consideration to the argument
that the proceedings did not serve a useful
purpose. This was because a court in
Pennsylvania would not be prevented from
reaching its own conclusion by an English
judicial decision.
Lord Justice Longmore looked closely at the
central issue of how a judge exercised their
discretion when considering whether or not to
set aside an order allowing notice of English
proceedings to be served outside the
jurisdiction. He concluded that a judge is entitled
to take a broad view and agreed with Mr Justice
Beatson that Faraday had demonstrated that the
proceedings met the utility test.
Other key issues
However, as revealed in the submissions put
forward by both parties, the case also
highlighted other important points:
• An English court’s decision that a policy is
governed by English law may not stop a
foreign court from reaching its own
conclusion by reference to any law it may find
appropriate.
• It may be useful to a foreign court, though,
to know how the policy is construed under
English law and whether it responds to the
circumstances of the claim.
• An English decision that the policy is
governed by English law may be useful if a
foreign court has taken a different view and
its judgment is being enforced in another
jurisdiction.
• A foreign court may be interested in knowing
what English law is.
These issues should be considered early and
before the proceedings are issued before the
English court.
Michael Benguigui
Solicitor
London
m.benguigui@kennedys-law.com

Developments for
the Dubai &
Hong Kong offices
We are pleased to announce that Andrew MacCuish and Peter Ellingham have transferred
to our Dubai office. Andrew, who was previously based in our Sheffield office, has already
spent much of the last year in the Middle East on a couple of major projects and his
presence will further consolidate the position of our construction team. Peter, who was
previously based in our London office, has transferred to Dubai with a view to growing the
Middle Eastern insurance practice in conjunction with initiatives already in progress
between the Dubai office and associates Tuli & Co.
We are also pleased to welcome Peter Cashin to Kennedys who has joined our Hong Kong
office as a partner in the Corporate and Commercial Group. With over 20 years’ experience
in the Asia-Pacific insurance market, Peter is one of the region’s most well respected
corporate insurance lawyers. A former partner of CMS Cameron McKenna, Peter played a
lead role in the development of the firm’s Asia insurance practice, before moving to senior
in-house counsel roles with a number of general and life insurers, including AIA and more
recently with MetLife.
11

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