The DIFC Courts’ practice of deploying retired common law judges has come under the spotlight after the two Irish representatives resigned under pressure from a leading politician.

Ireland’s former chief justice, Frank Clark, and the former president of the High Court of Ireland, Peter Kelly, stepped down just days after being sworn in on 27 July as the first Irish representatives on the Dubai International Financial Centre’s (DIFC’s) dispute resolution body. 

Their U-turn came after the leader of Ireland’s Labour Party, former barrister Ivana Bacik TD, said their appointments were part of “a deliberate strategy by… [the] regime to use respected former judges as a way to legitimise it”. 

Bacik was responding to an article in the Irish Times by retired barrister and former chair of Amnesty International Ireland Bill Shipsey criticising the judges’ decision to join the courts given Dubai’s human rights record and a London High Court ruling in 2020 that the courts’ president, Dubai’s ruler, Sheikh Mohammed bin Rashid Al Maktoum, had on the balance of probabilities orchestrated the abductions of two of his daughters.

In a statement, Clark, who retired from Ireland’s bench in October 2021, linked his decision to resign to his position as president of Ireland’s Law Reform Commission.

“Ireland and many Irish companies do significant business in and with Dubai, and in that context, it is important that there be an independent and trusted dispute resolution system available to those companies,” he said.

“However, I am concerned that the current controversy could impact the important work of the Law Reform Commission to which I am committed. In those circumstances, I can confirm that I have submitted my resignation as a judge of the DIFC courts to the chief justice of that court.”

Kelly told The Irish Times “as a private citizen, I do not want this controversy to disrupt my future time in retirement”.

In March, the two UK Supreme Court representatives on Hong Kong’s Final Court of Appeal - Lord Reed and Lord Hodge - resigned, citing the Hong Kong administration’s departure from ‘values of political freedom and freedom of expression’ following the imposition of the national security law in 2020.

Their decision followed intense pressure from a cross-party group of politicians. 

However, a Middle East-based litigation partner at an international law firm said of the latest controversy: "The decision to resign seems unusual, given the DIFC Courts are purely commercial, unlike Hong Kong's Court of Final Appeal."

Another partner said both Irish judges were highly regarded by Ireland’s commercial law firms and that the resignations would deny DIFC court users the benefit of valuable Irish judicial experience. 

UK representatives on the DIFC Courts include Twenty Essex’s Sir Peter Gross, a former England and Wales appellate judge, and Lord Glennie, a former appellate judge in Scotland, both of whom presided over their respective jurisdictions’ commercial courts.

Also sworn in on 27 July were former New Zealand Supreme Court judge Sir William Young and Dubai-based barrister and arbitrator Michael Black QC, of XXIV Old Buildings. Black was appointed as the judge in charge of Dubai’s Digital Economy Court.

Young stepped down from New Zealand’s apex court after twelve years, having served on the NZ Court of Appeal and High Court. Black, widely respected for his advocacy before the DIFC Courts, has been involved with the DIFC Courts since its foundation in 2004. His appointment was warmly welcomed on LinkedIn by leading practitioners. 

The DIFC Courts declined to comment on the resignations of Clark and Kelly.