Courts of the DIFC – A brief overview

Introduction 

The United Arab Emirates, as per its Constitution is an Independent, Sovereign, Federal State[1] with Arabic as its official language[2] and Islamic Shariah as its main source of law[3].  Naturally, litigation in the UAE before its local courts are held in Arabic language and the source of legislation is the Islamic Shariah.   However, the UAE has also created an alternative system within its jurisdiction that enable parties to get their disputes resolved by a common law court in English language which is enforceable in the UAE[4].  The purpose of this post is to take a brief look at the establishment and jurisdiction of the DIFC Courts and its viability as an alternative to the UAE Civil Courts. 

Background

The UAE Constitution sets up a Union judiciary, but it makes it clear that the local judicial authorities in Each Emirate will have jurisdiction in all matters not assigned to the Union judiciary[5].  Article 120 and 121 of the UAE Constitution lists out matters in which the Union legislature has exclusive jurisdiction.  The Emirates will have jurisdiction on all matters that were not explicitly within the legislative competence of the Union under Article 120 and 121[6].  A constitutional amendment in 2004[7] amended Article 121 and permitted the Union Legislature, by Federal Law, to legislate on the order and manner of establishing financial free zones and the boundaries within which they are exempted from having to apply the rules and regulations of the Union.  

Pursuant to this constitutional amendment, the UAE issued Federal Law No 8 of 2004 which permitted the Union Government to establish financial free zones by issuing a Federal Decree[8].  It made it clear that the Federal civil and commercial laws will not be applicable in the financial free zones[9].  The Dubai International Financial Centre (DIFC), a financial free zone in the Emirate of Dubai was established by Federal Decree No 35 of 2004.  The Emirate of Dubai is empowered[10] to issue legislation necessary for the conduct of the DIFC within the scope of its objectives. 

Accordingly, the Emirate of Dubai issued the Law of the Dubai International Financial Centre[11]. Under this law, the DIFC Courts were bestowed with exclusive jurisdiction to interpret the laws and regulations of the DIFC[12]. 

The Judicial Authority Law and DIFC Court Law

The Judicial Authority Law[13] established the DIFC Courts to carry out their functions independently and in accordance with the Judicial Authority Law and other laws of the DIFC[14].  The two ranks of the DIFC Courts established under the Judicial Authority Law were the Court of First Instance and the Court of Appeal.   The Ruler of Dubai subsequently issued the DIFC Court Law[15] to provide for the independent administration of justice in the DIFC[16] inter alia in accordance with the Judicial Authority Law.  Article 13 (1)[17] and Article 60[18] of the DIFC Court Law make it clear that English is the official language of the DIFC Court and proceedings before the Court shall be conducted in the English language. The Law on the Application of Civil and Commercial Laws in the DIFC[19] was enacted in 2004 inter alia to provide certainty on the rights, liabilities and obligations of persons in relation to civil and commercial matters in the DIFC[20] and allow persons to adopt the laws of another jurisdiction in relation to civil and commercial matters in the DIFC[21]. Article 8 (2)[22] of the Law on the Application of Civil and Commercial Laws in the DIFC, subject to circumstances where application of DIFC Law or another law is mandatorily applicable under DIFC Law, gives primacy to party autonomy on choice of application of the relevant law governing their dispute. 

Article 5 of the Judicial Authority Law deals with the jurisdiction of the DIFC Courts. As the jurisdiction of the DIFC Courts is derived from the article, it is extracted below in full for ready reference:

“Article 5 – Jurisdiction

  • The Court of First Instance:
  • The Court of First Instance shall have exclusive jurisdiction to hear and determine
  • Civil or commercial claims and actions to which the DIFC or any DIFC body, DIFC Establishment or Licensed DIFC Establishment is a party;
  • 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 with DIFC or will be performed or is supposed to be performed within the DIFC pursuant to express or implied terms stipulated in the contract;
  • 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;
  • Appeals against decisions od procedures made by the DIFC Bodies where DIFC Laws and DIFC Regulations permit such appeals; 
  • Any claim or action over which the Courts have jurisdiction in accordance with DIFC laws and DIFC regulations. 
  • The Court of First Instance may hear and determine any civil or commercial claims or actions where the parties agree in writing to file such claim or action with it whether before or after the dispute arises, whether such agreement is made pursuant to specific, clear and express provisions. 
  • The Court of First Instance may hear and determine any civil or commercial claims or actions falling within its jurisdiction if the parties agree in writing to submit to the jurisdiction of another court over the claim or action but such court dismisses such claim or action for lack of jurisdiction. 
  • Notwithstanding Clause (2) of Paragraph (A) of this Article, the Court of First Instance may not hear or determine any civil or commercial claim or action in respect of which a final judgment is rendered by another court. “

Article 5 (A) (1) inter alia provides that the DIFC Courts will have exclusive jurisdiction over civil or commercial claims in which DIFC bodies or entities registered in the DIFC are involved or if performance of the contract or obligation is within the DIFC.  These provisions have been extensively considered by judgments of the DIFC Courts and can be examined in detail in another post. For the present, I am confining myself to providing a broad outline of the jurisdiction of the DIFC Courts. 

The relevant provision that may be of interest to parties that do not have a nexus to the DIFC is Article A 5(2). Article A 5(2) permits parties to elect the DIFC Courts as their preferred dispute resolution forum.  The DIFC Courts issued a Practice Direction[23] suggesting model clauses for invoking the jurisdiction of the DIFC Courts under Article 5 A (2) of the Judicial Authority Law.  The Practice Direction made it clear that while compliance with Article 5 A (2) was ultimately a matter of interpretation by the Court, the Registry will accept claim forms which contained the model jurisdiction clauses or if the Registry considered that the agreement in question prima facie complied with the requirements of Article 5 A (2). 

Execution of Judgments of the DIFC Courts

The Judicial Authority Law[24] and the Protocol of Enforcement between the Dubai Civil Courts and the DIFC Courts lay down the manner in which judgments of each court will be enforced in the jurisdiction of the other. The judgment of the DIFC Courts is directly enforceable in the Dubai Civil Courts in accordance with the procedure laid down in the Protocol of Enforcement between the Dubai Civil Courts and the DIFC Courts. 

When should parties choose DIFC Courts over the UAE Civil Courts?

Now that we have established that that parties could confer jurisdiction on the DIFC Courts by agreement, let us consider the reasons to do so. In my view, parties should pay close attention in preparing the governing law and dispute resolution clause of their contracts. After all, in the event of a dispute between the parties, it is the dispute resolution clause that will determine how the dispute between the parties will be decided. If parties are based in the UAE and there is no dispute resolution clause in the contract, the UAE Civil Courts will have jurisdiction over the dispute.  A dispute resolution clause becomes relevant where parties wish to oust the jurisdiction of the UAE Civil Court by choosing a different dispute resolution forum such as arbitration or DIFC Courts.  Arbitration is the more appropriate forum where parties wish to maintain confidentiality and autonomy over the conduct of the proceedings.  DIFC Courts are more appropriate if parties prefer settlement of their dispute by a court of law in English language as against an Arbitrator[25]. 

 All pleadings and documents for submission in a proceeding before the UAE Civil Courts will need to be translated into Arabic, which is the official language of the UAE Civil Courts. The transactional language of a significant number of the expatriate population is not Arabic and I have come across several cases where the volume of documents that were required to be translated into Arabic for submission to court drove up the costs exponentially.  DIFC Courts may be a more appealing option also where the contract documents are in English and parties anticipate that most, if not all, correspondence and other documents will be in English language.  

I will deal with the rules of procedure governing DIFC Courts and manner of resolution of disputes brought before it in separate posts.   Please feel free to reach out to me using the contact form for any comments or if you have any queries. 

[1] Article 1 of the Constitution of the UAE

[2] Article 7 ibid

[3] Article 7

[4] There are of course exemptions to this which is a matter for specific advice based on the facts and circumstances of each case.  

[5] Article 104.  For matters within the exclusive jurisdiction of the Union judiciary see Article 99

[6] Article 122

[7] https://www.difc.ae/files/5714/5449/7479/Constitutional_Amendment_No_1_of_2004_English.pdf

[8] https://www.difc.ae/files/5314/5449/7480/Federal_Law_No_8_of_2004_English.pdf

[9] Article 3 (2) of Federal Law No 8 of 2004

[10] Article 7(3) of Cabinet Resolution No 28 of 2007. 

[11] Dubai Law No 9 of 2004. 

[12] Article 8 ibid

[13] Dubai Law No 12 of 2004 

[14] Article 3(1) ibid

[15] DIFC Law No 10 of 2004

[16] Article 6 of the DIFC Court Law

[17] “13. Court Proceedings

      All proceedings before the Courts shall be:

  • Conducted in the English language; and
  • Open to the public unless otherwise conducted by the presiding Judge in the interest of justice.”

[18] “60. Official Language

     English is the official language of the DIFC Court, including the Tribunals of the Court.”

[19] DIFC Law no 3 of 2004

[20] Article 7 (a) of DIFC Law No 3 of 2004

[21] Article 7 (b) of DIFC Law No3 of 2004

[22]  “8. Application

  • Since by virtue of Article 3 of Federal Law No 8 of 2004, DIFC Law is able to apply in the DIFC notwithstanding any Federal Law on civil or commercial matters, the rights and liabilities between persons in any civil or commercial matter are to be determined according to the laws for the time being in force in the Jurisdiction chosen in accordance with paragraph (2).
  • The relevant jurisdiction is to be the one first ascertained under the following paragraphs:
  • So far as there is a regulatory content, the DIFC Law or any other law in force in the DIFC; failing which,
  • The law of any Jurisdiction other than that of the DIFC expressly chosen by any DIFC Law; failing which,
  • The laws of a Jurisdiction as agreed between all the relevant persons concerned in the matter; failing which,
  • The laws of any Jurisdiction which appears to the Court or Arbitrator to be the one most closely related to the facts of and the persons concerned in the matter; failing which, 
  • The laws of England and Wales. “

[23] Practice Direction No 1 of 2015

[24] Article 7 of the Judicial Authority Law

[25] Please note there are several factors to be taken into consideration whilst determining the appropriate dispute resolution forum to determine potential disputes arising under a contract. What I have listed here are only illustrative and not exhaustive. Parties should take a considered decision on the appropriate dispute resolution forum for determining their dispute after taking competent legal advice. 

Drafting an arbitration agreement under UAE Federal Arbitration Law No 6 of 2018

As a commercial dispute resolution practitioner, I have come across a number of badly drafted arbitration clauses in commercial contracts.  The commercial terms of most of these contracts are well defined and the intention of the parties are easily discernible from them. However, in these contracts, parties appear to make the mistake of assuming that their relationship will always be on good terms and do not pay due attention to the dispute resolution clause. A badly drafted dispute resolution clause may lead to unintended consequences that are particularly exacting on a party that seeks to initiate dispute resolution proceedings.  In this post, I will briefly set out the requirements for a valid arbitration agreement under the Federal Arbitration Law No 6 of 2018 (Federal Arbitration Law)[1], what, in my view, should be contained in a good arbitration agreement and look at an example of an unintended consequence of a badly drafted arbitration clause. Let me begin by providing a brief overview of the Federal Arbitration Law.

The Federal Arbitration Law stipulates that arbitration is a procedure regulated by law in which a dispute between one or more parties is submitted by their agreement to an arbitral tribunal for a binding decision on the dispute[2].  An arbitration agreement is an agreement between parties to submit their disputes to arbitration. The arbitration agreement may be entered into before or after a dispute has arisen[3].  Unless otherwise agreed by the parties, the Federal Arbitration Law will apply to any arbitration conducted in the UAE[4].  An arbitration agreement may be concluded by a natural person having the legal capacity to dispose of his rights or on behalf of a corporate entity by a representative with specific authority to arbitrate.  If the arbitration agreement is executed by a person without legal capacity, it could be declared a nullity[5].  It is important therefore to ensure that the person signing an arbitration agreement on behalf of a corporate entity has specific authorisation to execute arbitration agreements . The general manager of a limited liability company incorporated in the UAE usually has full powers to represent the company and his acts performed in the discharge of his functions are, subject to specific restrictions in the memorandum and articles of the company or the contract appointing the general manager, binding on company[6]. It would be prudent to ensure, either by reviewing the memorandum and articles of the company or other document conferring specific authority, that the signatory to the contract has the specific authority to enter into a valid arbitration agreement on behalf of the corporate entity.

The Federal Arbitration Law mandates that an arbitration agreement must be in writing[7].  If the parties make a reference in any written contract to any other document containing an arbitration clause with the intention to make that clause part of their contract, the parties will be deemed to have executed an arbitration agreement in writing[8].  This usually happens where parties to a contract agree on the commercial terms and make a reference to any model contract or to the general terms and conditions of a corporate party which contains an arbitration clause.  If parties do not expressly record their intention not to be governed by the arbitration clause in the other document they have incorporated into their contract, they will be deemed to have entered into a valid arbitration agreement.

The consequences of parties entering into an arbitration agreement under the Federal Arbitration Law is that if any dispute containing an arbitration agreement is brought before a court, the court, unless it is satisfied that the arbitration agreement is void or incapable of being performed,  is required to decline to entertain the action if the defendant pleads, before submitting any request or plea on merits,  that the dispute in question is governed by an arbitration agreement[9]. The arbitration clause may be in relation to all or certain types of disputes that may arise between the parties[10]. For instance, an arbitration agreement may stipulate that only disputes arising out of breaches of a defined nature listed in the contract may be subject to arbitration. It is important to pay attention to the subject matter of the disputes that the parties have agreed to submit to arbitration as an award that contains decisions on matters not falling within the terms of submission to arbitration or are beyond its scope may be set aside at the request of the party challenging the award[11].

As arbitration practitioners are aware, there are a few basic factors that will need to be taken into consideration whilst drafting an arbitration clause in a contract. The agreement of the parties to refer disputes to arbitration should be drafted in clear and unambiguous terms. In my view, a good arbitration clause in a commercial contract governed by the Federal Arbitration Law should contain, at the bare minimum, the following:

  • A clear and unambiguous agreement of the parties to refer a dispute that may arise under their contract to arbitration
  • The type of disputes that will be referred to arbitration- whether it is all disputes or only certain types of disputes arising out of the contract.
  • Composition of the Tribunal- sole arbitrator or three arbitrators are the most common in commercial disputes. The numbers of arbitrators composing the tribunal should be an odd number[12].
  • The seat and venue of the arbitration.
  • Language of the arbitration- if parties do not specify the language of the arbitration, arbitral proceedings shall be conducted in Arabic[13].  This is a departure from the provisions of the UNCITRAL model law[14] which permits the arbitral tribunal to determine the language of the arbitration in the absence of an agreement between the parties.  Thus, for an arbitration seated in the UAE, unless the parties have specifically agreed on the language of the arbitration, the default language is Arabic. I have come across agreements where a party drafting the arbitration agreement made the mistake of assuming that if language of the arbitration is not specified, the arbitral proceedings will be conducted in the language of the contract. The Federal Arbitration Law makes it clear that this is not the case.
  • Method of appointment of the tribunal and determining the rules of procedure- If the parties agree on institutional arbitration such as under DIAC or LCIA-DIFC arbitration rules, the rules lay down the method of appointment of the tribunal and rules of procedure for the arbitral proceedings. Parties may agree that the tribunal may be appointed, and arbitral proceedings conducted in accordance with the rules of the institution.   Once a dispute arises, it is not unusual for parties to disagree on the composition of the tribunal.  A nomination made by a party is frequently viewed with distrust by the other.  The scope for disagreement is higher where the arbitration agreement provides for appointment of a sole arbitrator mutually acceptable to the parties. In many cases, there is no such person in existence. In such cases and in the absence of any alternative method agreed by the parties, the court in whose jurisdiction the arbitration is conducted takes over as the appointing authority[15] and will appoint the tribunal.   

Though the costs of arbitration are on the higher side, arbitration affords significant benefits to parties that chose it as the dispute resolution mechanism over litigation before UAE Courts. A well drafted arbitration clause will enable parties to enjoy significant autonomy over the conduct of arbitration proceedings. They are able to determine the law governing the dispute, the seat and venue of arbitration, the language of the proceedings, the method of appointment and composition of the tribunal and the conduct of the arbitration proceedings. Prominent arbitration instructions[16] in the UAE as well as the Federal Arbitration Law[17] provide that arbitral proceedings and the final award will be confidential and not published without the consent of the parties. An award made by an arbitral tribunal in accordance with the Federal Arbitration Law is binding on the parties and constitutes res judicata between them[18] and may be enforced after obtaining a decision from the court confirming the award. The award may be challenged only on limited grounds set out under the Federal Arbitration Law[19].   

Let us now consider the consequences of not paying attention to the dispute resolution clause. I represented a client in a dispute that arose out a contract that contained an arbitration clause. The parties to the contract were foreign companies with branch offices in the UAE, the contract was drafted in English language, all correspondence between the parties were in English, all relevant documents to the arbitration were in English and witnesses were English speakers.  However, the arbitration clause did not specify the language of the arbitration. This would not have mattered if the parties agreed after the dispute arose that the language of the arbitration will be English. However, one of the parties did not cooperate with the arbitration proceedings and at the request of the claimant to appoint an arbitrator, the appointing body concluded that as the parties had not specified the language of the arbitration, the arbitration proceedings will be held in Arabic language and appointed an Arabic speaking arbitrator. I have made reference to this specific example to show that despite all other circumstances pointing to English being the appropriate language of the arbitration, the drafting error resulted in the claimant incurring avoidable costs for translation and conducting the arbitration in a language it wasn’t comfortable with.

There are several unfilled or partially fulfilled commercial contracts worldwide directly or indirectly attributable to the impact of the Covid 19 pandemic. Parties are likely to have significant differences of opinion on the impact of Covid 19 on their respective obligations entered into under various commercial contracts. Parties with poorly drafted dispute resolution clauses may find it harder to obtain expeditious relief to enforce their rights under the commercial contract when they need it the most.

The moral of the story is – don’t be complacent whilst drafting your dispute resolution clause.

[1] Federal laws and decrees of the UAE Arab Emirates are issued in Arabic language. The authentic text of the laws is in Arabic and I have relied on an unofficial English translation of the law in preparing this article. The original Arabic text will prevail in the event of any discrepancy with the unofficial English translation.  Unless otherwise mentioned, all references to Articles in the footnotes are references to Articles of the Federal Arbitration Law

[2] Article 1(definitions)

[3] supra

[4] Article 2(1)

[5] Article 4(1)

[6] Article 83(2) of UAE Federal Law No 2 of 2015 (Commercial Companies Law)

[7] Article 7(1)

[8] Article 7(2)(b)

[9] Article 8(1)

[10] Article 5(1)

[11] Article 53(1)(h)

[12] Article 9(3)

[13] Article 29(1)

[14] Article 22(1) of the UNCITRAL Model law on International Commercial Arbitration

[15] Article 13

[16] For instance, see Article 30 of DIFC-LCIA rules, Article 41 DIAC rules

[17] Article 48

[18] Article 52

[19] Article 53

The American mainstream news media and its discernible bias –

On 25 March 2020, the Intercept, an online news publication co-founded by Glen Greenwald, published a story about a former Biden staffer named Tara Reade[1] . She complained that Joe Biden had sexually harassed her while she worked in his office in 1993 and that she had faced retaliation because she rebuffed his advances. She stopped working for him no long after that. The article reports that in January 2020, Tara Reade had approached Time’s Up, an organisation set up in the wake of the #Me too movement for assistance with funding for public relations and subsidising legal assistance.  The Time’s Up Legal Defence Fund is housed within the National Women’s Law Centre (NWLC).  The mission statement of the NWLC[2] is “To advance and protect women’s legal rights. The Center focuses on  major policy areas of importance to women and their families including education, employment, family economic security, and health, with special attention given to the concerns of low-income women. “.

The Legal Network for Gender Equity which is also housed within the NWLC assists in connecting people who face sex discrimination such as sexual harassment at work, school or when getting healthcare with legal assistance. If the case involves sexual harassment at work, the Time’s Up Legal Defence Fund could help pay for the legal case and for media and storytelling assistance[3].

The Intercept article records the interactions Tara Reade had with a programme director of NWLC and how they were initially responsive to her story, referred her to Attorneys and even suggested that the Time’s Up Legal Defence Fund would be able to fund her PR and subsidise her legal defence.  She was subsequently notified in February 2020 that they would not be in a position to assist her in this matter as Joe Biden was running for Federal office and helping her could jeopardise their non-profit tax exemption status.  The Intercept article quoted legal experts to express scepticism over the validity of the reason provided by NWLC to refuse to take up Tara Reade’s case.  The complaint related to sexual harassment at work and the Time’s Up Legal Defence Fund was set up for that reason.  Exempting persons running for Federal office from within its ambit appeared to be interesting decision.

On 25 March 2020, she did an interview with Katie Halper on her podcast where she, for the first time, publicly detailed an incident that took place in 1993 with Joe Biden.  The incident she described was a sexual assault. She reiterated her allegation of sexual assault in an interview with Hill Tv. and again with Democracy Now.  Even after this accusation, her story was not covered by most major mainstream print and television news outlets such as the New York Times, Washington Post, CNN or MSNBC. During this period, her story was covered mainly by independent news outlets on youtube and was amplified on social media by people who supported Joe Biden’s political opponent at the time, Bernie Sanders. Bernie Sanders did not raise this issue at the time and he suspended his campaign on 8 April 2020.

New York Times finally reported on this story on 12 April 2020[4]. The Washington Post reported this on 13 April 2020[5]. NBC also reported this story on 13 April 2020[6]. All these outlets claimed they were thoroughly investigating Ms Reade’s claim over the past three weeks. Whilst they were investigating these claims, opinion writers in New York Times and Washington Post urged Joe Biden’s only contender in the Democratic Party primary, Bernie Sanders to drop out of the race and support Joe Biden.  MSNBC, a television news channel, which in my view holds a very large sway of influence over Democratic party voters, constantly had panellists on complaining that Bernie Sanders had no path to victory and he was in the race only to weaken the inevitable nominee Joe Biden just he had done to Hillary Clinton in 2016. At no time did this channel deem it fit to report that there was an ongoing investigation against Joe Biden that could potentially change the complexion of the race.

I have read the articles published by these outlets. Their investigations have revealed the following:

  1. Tara Reade worked for Joe Biden during the period of time the alleged assault happened;
  2. She had complained about inappropriate behaviour from Joe Biden in 1993 to her mother, brother and her friend. Her mother has passed but her brother and the her friend confirmed that she had talked to them about this incident at that time;
  3. Biden’s employees and close associates to whom Tara Reade claimed she had complained about the incident at the time have denied this;
  4. She claimed to have filed a complaint at the Senate office at the time which could not be traced by any outlet;
  5. Her responsibilities within Joe Biden’s  office was diminished and she left her job not long after the incident;
  6. She has now filed a police complaint about the incident with the Washington DC police which underscores the seriousness with which she has chosen to pursue this matter.

The alleged incident took place in 1993 which is 27 years ago.  Even if the claim made is accurate, it is highly doubtful that she could get justice at this late juncture.  The passage of time indeed raises questions over the credibility of her claim.  Many Joe Biden supporters on twitter and on the comments section of the Washington Post article have questioned the timing of her complaint. This is a he said/she said situation where there is likely to be no corroborative evidence for the positions taken by either party.  People will believe what they want to believe.  However, the #Metoo movement and the previous positions taken by the Democratic Party had set a different standard to be applied in such cases.

In late 2017, The #Metoo movement brought about a feminist revolution that took the world by storm.  Several high-profile individuals were brought down by claims of sexual assault or sexual harassment by women who had worked with them.  Some of the prominent claims were the ones made against Harvey Weinstein who was accused of non-consensual sex by several actresses, prominent Fox News host, Bill O’Riley, former fox news CEO, Roger Ailes (deceased), actor Kevin Spacey and Charlie Rose of the Today Show.  These people were forced out of their jobs and were ostracised from polite company.

There were other instances where, in my opinion, the #Metoo movement was taken a little too far.  The resignation of Senator Al Franken of Minnesota comes to mind. Pictures of him pretending to touch a female journalist inappropriately emerged and in the ensuing outrage, he was forced to resign. He acknowledged that the picture showed him attempting to make a classless joke and he profusely apologised for it.  The picture was taken when he was a comedian and there were no complaints against him during his time as a US Senator. Democratic politicians such as Senator Kirsten Gillibrand minced no words in expressing her opinion that the Democratic Party had to have high standards in place and therefore Senator Al Franken had to resign.  In my view, this set the standard for evaluating the conduct of politicians, especially politicians of the Democratic Party who had insisted on their politicians meeting this high standard.

Then came Brett Kavanaugh. After Justice Anthony Kennedy retired, Donald Trump nominated Brett Kavanaugh to the United States Supreme Court.  Dr. Christine Blasey Ford approached Democratic party lawmakers soon after to notify them of a sexual assault on her by Brett Kavanaugh when they were teenagers. The incident allegedly took place in 1982.  This was extensively covered by MSNBC, Washington Post and New York times.  Even less contemporaneous corroborative evidence for Dr. Ford’s story could be obtained at that time than what was established in Tara Reade’s story against Joe Biden. The Democratic members of congress and their supporters insisted on Dr. Ford’s claims being thoroughly investigated. She was given a full hearing before the Senate before Justice Kavanaugh was confirmed on party lines.  Democratic lawmakers and supporters expressed outrage at his confirmation.  They insisted that the standard to be followed in cases of this nature was to believe the women complaining of the sexual assault.  Their rationale for applying this standard was that there was no incentive for a woman to accuse a powerful man of sexual assault and deal with the negative publicity unless the the assault actually took place. Dr. Ford’s complaint against Justice Kavanaugh was covered extensively by the American mainstream news media and most commentators of the outlets I have listed here were sympathetic to Dr. Ford.

President Trump, the Republican Party and Justice Kavanaugh himself called it a partisan attack against him by the Democratic Party.  This is well documented in news reports at the time and I am bringing this up here only to point out the disparity of the news coverage. Believe all women is a laudatory principle especially when the person accused of assault is someone powerful such as a candidate for the US Supreme Court and the person coming forward is willing to go through the media rigmarole and have her privacy invaded to prevent a sex offender from ascending to the Highest court of the land.

It would appear that the same standard should apply to a former vice president who is now the presumptive nominee of one of the two viable political parties heading into a presidential election.  So far this has not been the case.  Not long after Joe Biden announced his candidacy for the Presidency, he was accused of inappropriate touching by seven women[7].  In my view, this is at least at par with what Senator Al Franken was accused of.  Surprisingly, there was not the same level of outrage against Joe Biden.  He was not immediately called upon to withdraw from the race by the same people who led the charge against Al Franken (I am looking at you, Senator Kirsten Gillibrand).  He issued a statement on the lines of claiming he was unaware that he did anything wrong and that he would respect personal boundaries of women in the future.  That was the end of that.  Tara Reade had also come out against Joe Biden at that time. Her claim at that time was confined to inappropriate touching and not sexual assault. Many prominent #Metoo movement supporters such as Allysa Milano (who was very vocal of her support for Dr. Ford and attended the Senate investigations against Brett Kavanaugh) and Ana Navarro openly tweeted their support for Joe Biden.  A different standard appeared to apply for Joe Biden right from that point.

After the Intercept article, Tara Reade gave interviews to Katie Halper and Hill Tv where she described her assault in graphic detail. This was on 25 March 2020.  Bernie Sanders was in the Democratic primary race on that date.  He exited the race on 8 April 2020. The mainstream news media reported Tara Reade’s allegations only after Bernie Sanders dropped out and the Democratic party voters have no viable alternative to Joe Biden. While I am writing this, I still have not seen any major figure from the Democratic Party (including from any of his former challengers) calling for an investigation into the claims made by Tara Reade.  There is no call till date from any of the opinion writers or pundits on any of the mainstream news media for the same. The Democratic Party and the American mainstream news media either do not see the utter hypocrisy of their position or worse, they do, and they do not care.  Unfortunately, this undermines their credibility when similar allegations are raised against Donald Trump or any Republican politician.  They will be able to forcefully contend that this is a partisan exercise selectively used against political rivals.  Going by the conduct of the American mainstream news media and the Democratic Party in this case, who can credibly say that they are wrong?*

 

[1] https://theintercept.com/2020/03/24/joe-biden-metoo-times-up/

[2] https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2019/06/NWLC-FY18-990-Public-Disclosure.pdf

[3] https://nwlc.org/legal-assistance/

[4] https://www.nytimes.com/2020/04/12/us/politics/joe-biden-tara-reade-sexual-assault-complaint.html

[5] https://www.washingtonpost.com/politics/sexual-assault-allegation-by-former-biden-senate-aide-emerges-in-campaign-draws-denial/2020/04/12/bc070d66-7067-11ea-b148-e4ce3fbd85b5_story.html#comments-wrapper

[6] https://www.nbcnews.com/politics/2020-election/woman-broadens-claims-against-biden-include-sexual-assault-n1182296

[7] https://news.yahoo.com/seven-women-have-now-accused-joe-biden-of-inappropriate-touching-131204785.html

*I am a lawyer based in Dubai and I have followed American politics with a keen eye since 2015 after I was fascinated by the rise of Bernie Sanders against all odds.  I am not an American citizen and have no dog in this fight. I just love the drama and theatre of American politics.