In September 2018, the Ninth Circuit Court of Appeals of the United States held that a timely asserted personal jurisdiction defense would not be waived where in a related matter between similar parties one party litigated other defenses and counterclaims.

The decision, InfoSpan Inc, Infospan (Gulf) Inc v. Emirates NBD Bank PJSC (5) reversed the judgment of the U.S. district court of the Central District of California (6) which had held that the defendant's personal jurisdiction defense had been waived during its previous conduct in litigating a related matter against similar parties.

Writing for the majority, Circuit Judge N. R. Smith held that the defendant had preserved its litigation defense in previous proceedings by timely asserting it and by litigating it to an adverse ruling. It did not find that the litigation of other defenses and counterclaims diminished that preservation of the defense. It therefore dismissed the district court's decision on the basis of a validly asserted personal jurisdiction defense.

This article will first discuss the InfoSpan saga in Section I, examining the origins of the dispute between the parties and the California district court's distinct treatment of the plaintiffs' tort and contract claims. It will then inspect in Section II the first InfoSpan case over its 6-year litigation period, looking at the various attempts to dismiss the case in favor of arbitration due to an alleged lack of personal jurisdiction, subject matter jurisdiction, proper venue, and on forum non conveniens grounds. In Section III, it will look at the filing of a second InfoSpan case seeking to compel arbitration of the counterclaims and the effect of the introduction of the DIFC arbitration proceedings in the UAE. In Section IV it will examine the decision of the Ninth Circuit in its September 2018 holding which reversed the second InfoSpan case regarding the preservation of a personal jurisdiction defense. Lastly, in Section V, this article will examine the jurisdiction of the DIFC Courts over the appointment of an arbitrator in relation to DIFC arbitration proceedings in the UAE.