Litigation & Dispute Resolution - Appleby
Litigation & Dispute Resolution - Appleby
Litigation & Dispute Resolution - Appleby
Create successful ePaper yourself
Turn your PDF publications into a flip-book with our unique Google optimized e-Paper software.
<strong>Litigation</strong> & <strong>Dispute</strong> <strong>Resolution</strong><br />
First Edition<br />
Contributing Editor: Michael Madden<br />
Published by Global Legal Group
CONTENTS<br />
Preface<br />
Michael Madden, Winston & Strawn London<br />
Australia Martin Garrett & Matthew Eglezos, Freehills 1<br />
Belgium Koen Van den Broeck & Thales Mertens, Allen & Overy LLP 14<br />
Bermuda Kiernan Bell & Martin Ouwehand, <strong>Appleby</strong> (Bermuda) Ltd. 19<br />
BVI Andrew Willins, <strong>Appleby</strong> 26<br />
Bulgaria Assen Georgiev, CMS Cameron McKenna LLP - Bulgaria Branch 37<br />
Cayman Islands Tony Heaver-Wren & Shaun Tracey, <strong>Appleby</strong> (Cayman) Ltd. 44<br />
China Hongji Li & Jie Ma, Commerce & Finance Law Offi ces 59<br />
Costa Rica Róger Guevara & Abraham Balzer, Batalla Abogados 64<br />
Cyprus Nicos G. Papaefstathiou & Maria Papaefstathiou, Tassos Papadopoulos & Associates LLC 68<br />
Ecuador Jorge Sicouret Lynch, César Sánchez Icaza & Gabriela Lecaro Malnati, Coronel & Pérez 76<br />
England & Wales Michael Madden & Bryn Dodson, Winston & Strawn London 85<br />
Estonia Pirkka-Marja Põldvere, Aivar Pilv Law Office 100<br />
France Denis Chemla & Erwan Poisson, Allen & Overy LLP 110<br />
Germany Jörg Staudenmayer & Judith Walz, CBM International Lawyers LLP 120<br />
Guernsey Jeremy Le Tissier & Adam Cole, <strong>Appleby</strong> 127<br />
Hong Kong Giovanna Kwong, SJ Berwin LLP 133<br />
India M. Dhyan Chinnappa & M.V. Sundararaman, CrestLaw Partners 141<br />
Indonesia Kartini Muljadi, Kartini Muljadi & Rekan 148<br />
Isle of Man Chris Cope, Elizabeth Simpson & Gillian Duffy, <strong>Appleby</strong> (IOM) LLC 157<br />
Italy Ferdinando Emanuele & Milo Molfa, Cleary Gottlieb Steen & Hamilton LLP 170<br />
Japan Yoshio Otani, Junya Naito & Tsuyoshi Suzuki, Momo-o, Matsuo & Namba 180<br />
Jersey Fraser Robertson & Davida Blackmore, <strong>Appleby</strong> 189<br />
Malaysia Tiang Joo Su, Cheah Teh & Su 199<br />
Mexico<br />
Miguel Angel Hernandez Romo Valencia & Miguel Angel Hernandez Romo,<br />
Bufete Hernandez Romo 209<br />
Netherlands Marius Josephus Jitta & Damiën F. Berkhout, Stibbe 215<br />
Nigeria Kolawole Mayomi & Debo Ogunmuyiwa, SPA Ajibade & Co. 224<br />
Spain Álvaro López de Argumedo & Juliana de Ureña, Uría Menéndez 235<br />
Switzerland Balz Gross, Claudio Bazzani & Julian Schwaller, Homburger 243<br />
Turkey Gönenç Gürkaynak, İlay Yılmaz & Gözde Kitapcı, ELIG Attorneys at Law 252<br />
Ukraine<br />
Andrey Astapov, Oleh Beketov & Oleksiy Zorin,<br />
AstapovLawyers International Law Group 260<br />
USA Kapil Longani & Gunjan Sharma, Skadden, Arps, Slate, Meagher & Flom LLP 270
Guernsey<br />
Jeremy Le Tissier & Adam Cole<br />
<strong>Appleby</strong><br />
Efficiency/integrity<br />
Whilst much of Guernsey’s Royal Court procedure is generally based on principles which are similar<br />
to those adopted in England, it is important to note that Guernsey is a separate jurisdiction with its<br />
own specific laws and rules. Guernsey Royal Court procedure is an adversarial process which takes<br />
place before a single judge 1 . The judge determines all issues of procedure and law, whilst issues of<br />
fact are usually determined by Jurats 2 who will sit with the judge. However, in certain circumstances<br />
issues of fact may also be determined by the judge alone. Only Guernsey Advocates are permitted<br />
rights of audience before the Royal Court.<br />
The Royal Court in Guernsey has unlimited jurisdiction in both civil and criminal disputes. The<br />
Magistrate’s Court has jurisdiction to determine more minor criminal matters and civil disputes of<br />
under £10,000.<br />
In respect of civil disputes, the Guernsey Courts have seen an increase in work over the past years<br />
but Court accommodation has also been increased, particularly with a major extension to the Royal<br />
Court buildings in 2005, in order to provide increased capacity for the increased levels of work. In<br />
addition to the judges based in Guernsey, there are also a number of part-time judges who are either<br />
senior English lawyers or members (or former members) of the English judiciary who sit to determine<br />
matters in the Royal Court. A Guernsey judge (whether full time or part time) will not customarily<br />
undertake any Guernsey legal or quasi-legal work save in their official capacity. Where a member of<br />
the Guernsey judiciary perceives that they have a conflict or potential conflict of interest in a matter<br />
to be determined he/she may voluntarily recuse themselves or any of the parties to the litigation may<br />
apply to recuse the judge.<br />
The Guernsey Royal Court is aware of and actively encourages alternate forms of dispute resolution.<br />
Arbitration in Guernsey is governed by the Arbitration (Guernsey) Law, 1982 which provides for,<br />
among other things, the stay of Royal Court proceedings in favour of arbitration. Mediation is another<br />
frequently used method of alternative dispute resolution with both locally based mediators and<br />
mediators from other jurisdictions being used regularly. Other forms of alternate dispute resolution<br />
used include determinations by independent expert and adjudication. Guernsey also has statutory<br />
tribunals for the determination of certain types of dispute, such as the Employment and Discrimination<br />
Tribunal.<br />
Enforcement of judgments/awards<br />
Foreign judgments may be enforced in Guernsey in one of two different manners, either under The<br />
Judgments (Reciprocal Enforcement) (Guernsey) Law, 1957 or at common law.<br />
In order for a foreign judgment to be enforced under the Judgments (Reciprocal Enforcement)<br />
(Guernsey) Law, 1957 the judgment must have been obtained from a superior Court of the following<br />
countries: England and Wales; Scotland; Northern Ireland; the Isle of Man; Israel; the Netherlands;<br />
the Netherlands Antilles; the Republic of Italy; Surinam; or Jersey. Where a judgment is from a Court<br />
other than those set out above, the judgment must be enforced at common law.<br />
GLI - <strong>Litigation</strong> & <strong>Dispute</strong> <strong>Resolution</strong> First Edition 127 www.globallegalinsights.com<br />
© Published and reproduced with kind permission by Global Legal Group Ltd, London
<strong>Appleby</strong><br />
Guernsey<br />
The Judgments (Reciprocal Enforcement) (Guernsey) Law, 1957 sets out a procedure for the<br />
registration and enforcement of a foreign judgment in order for it to be enforceable as if it was a<br />
judgment of the Guernsey Royal Court. There are a certain number of reasons which can mean that a<br />
foreign judgment which is being sought to be enforced under the Judgment (Reciprocal Enforcement)<br />
(Guernsey) Law, 1957 may not be enforced in Guernsey and these may include instances where the<br />
original Court did not have jurisdiction to determine the dispute, where the judgment was obtained by<br />
fraud and where enforcement would be contrary to public policy in Guernsey.<br />
Where a foreign judgment is sought to be enforced at common law, the party seeking to enforce the<br />
judgment will issue proceedings in Guernsey relying on the foreign judgment in order to obtain an<br />
equivalent judgment from the Royal Court which may then be enforced. If a defendant was to seek<br />
to defend the Guernsey proceedings, the Plaintiff would usually seek summary judgment based on the<br />
fact that the foreign judgment had already been obtained and the doctrine of res judicata.<br />
Arbitrations awards, both domestic and foreign, may be enforced by the Guernsey Royal Court under<br />
the provisions of the Arbitration (Guernsey) Law, 1982.<br />
The most common method of enforcement of a judgment of the Royal Court in Guernsey is to provide<br />
the Act of Court recording the judgment to Her Majesty’s Sheriff who is then able to seize assets in<br />
satisfaction of the judgment.<br />
Privilege and disclosure<br />
It is usual for parties to litigation to agree or be ordered to provide disclosure of relevant documents<br />
as part of the litigation procedure. There are two general forms of disclosure, standard disclosure and<br />
specific disclosure. When giving standard disclosure, a party will have to disclose all documents on<br />
which it relies as well as any other documents which adversely affect its own case, any documents<br />
which adversely affect another party’s case and any documents which support another party’s case<br />
(as well as any other documents the parties may be obliged to disclose under any practice direction).<br />
A document is defined as ‘anything in which information of any description is recorded’. This will<br />
include anything which is held electronically (such as emails, electronic documents, calendars,<br />
scanned images etc.) and other information which may be retained in a form which is other than in<br />
hard copy form (such as voicemail messages or anything recorded on microfiche).<br />
In addition, the obligation to disclose documents refers to documents which are in a party’s control,<br />
or which have been in its control. This includes documents which are or have been in the party’s<br />
physical possession, documents which the party has, or has had, the right to possess and documents<br />
which the party has, or has had, a right to inspect or take copies of.<br />
Documents will be privileged from disclosure where they either attract legal advice privilege or<br />
litigation privilege.<br />
With extremely limited exceptions (e.g. cases of personal injury or death), it is not possible to obtain<br />
pre-action disclosure of documents, nor is it possible to obtain orders for disclosure of documents<br />
from third parties as part of the disclosure process. However, there may be other forms of relief<br />
available from the Court in the appropriate circumstances which will entail the Court ordering such<br />
disclosure of documentation (for instance as part of the ancillary relief comprised within a freezing<br />
order, or a Bankers Trust order).<br />
Whilst there are not yet any practice directions or rules of Court relating to electronic disclosure, the<br />
use of electronic disclosure is becoming more common and this is likely to continue.<br />
Costs and funding<br />
Whilst there are no absolute rules relating to costs as they are within the Court’s discretion, the normal<br />
manner in which the Court will exercise its discretion when awarding costs is for the successful party<br />
to have its costs paid by the unsuccessful party.<br />
There are two general bases for the award of costs, being either the standard basis or the indemnity<br />
basis. Costs ordered on the standard basis are, unless the Court orders otherwise, capped at a rate<br />
GLI - <strong>Litigation</strong> & <strong>Dispute</strong> <strong>Resolution</strong> First Edition 128 www.globallegalinsights.com<br />
© Published and reproduced with kind permission by Global Legal Group Ltd, London
<strong>Appleby</strong><br />
Guernsey<br />
of £227 per hour for Advocates (with corresponding reductions for non-advocate lawyers) which is<br />
likely to be lower than the cost actually charged by the Advocates. The paying party is able to seek a<br />
taxation of costs. Where there is a dispute over the reasonableness of costs incurred on the standard<br />
basis, the presumption is that costs will be resolved in favour of the paying party.<br />
Where parties have engaged English solicitors and barristers to assist in proceedings, those costs are<br />
generally irrecoverable, save in appropriate and exceptional cases.<br />
Where costs are ordered on the indemnity basis, the presumption is reversed so that presumptions are<br />
resolved in favour of the receiving party.<br />
It is possible for the Court to change the recoverable hourly rate so that an increased rate of recovery<br />
can be obtained.<br />
It is not possible for Advocates to enter into contingency fee arrangements. In certain circumstances,<br />
funding for litigation may be available where such funding is not champertous or constitutes unlawful<br />
maintenance.<br />
Interim relief<br />
The Guernsey Royal Court is able to, and does, grant interim relief where justified, with jurisdiction<br />
being available to grant commonly recognised forms of interim relief such as freezing orders and<br />
search orders.<br />
When granting interim relief, the Royal Court will view developments in England and Wales as well<br />
as in other comparable common law jurisdictions, particularly Jersey, as persuasive in the absence<br />
of directly applicable local decisions. Accordingly, where appropriate, ex-parte relief is available.<br />
The Royal Court is also able to, and will, grant injunctions in support of foreign proceedings without<br />
requiring substantive proceedings to be issued locally, such as where the only connection to the<br />
proceedings is the presence of assets within the jurisdiction of the Royal Court.<br />
Other forms of interim relief are available, many of which will be recognisable to lawyers in common<br />
law jurisdictions, such as Bankers Trust Orders and Anti-Suit Injunctions, as well as other forms<br />
of interim relief which are rarely seen outside of Guernsey. The first of such is the Clameur de<br />
Haro which effectively operates as an injunction which a landowner may obtain prohibiting the<br />
interference with his real property without the immediate need to obtain such an order from the Royal<br />
Court. However, once the ‘Clameur’ has been raised 3 , the landowner is required to promptly register<br />
it with the Royal Court. Whilst it does appear to be a particularly informal method of obtaining<br />
such relief, it is rarely used and there is little doubt that abuse of the procedure would be seriously<br />
criticised by the Royal Court. Another form of interim relief available which is practically unknown<br />
outside of Guernsey is the ability of a plaintiff to make an ex-parte application to register the amount<br />
claimed against a defendant as a charge against any real property he may own on the island. The<br />
plaintiff has to demonstrate a prima facie case and the Court will grant the application, permitting<br />
the plaintiff to register the charge against the property, effectively obtaining security for the amount<br />
being claimed.<br />
As a general rule, the Guernsey Royal Court will be willing to provide assistance in respect of foreign<br />
proceedings by granting interim relief so long as the assistance and relief is sought in the appropriate<br />
circumstances and with the appropriate safeguards, such as undertakings, being provided.<br />
International arbitration<br />
Guernsey is a party to the New York Convention. The United Kingdom extended the territorial<br />
application of the Convention to Guernsey on 19 April 1985. Enforcement of Convention awards<br />
was incorporated in domestic Guernsey law by the Arbitration (Guernsey) Law, 1982 which came into<br />
force on 11 April 1983. The Arbitration (Guernsey) Law, 1982 also provides for the enforcement of<br />
awards by parties to the Convention on the Execution of Foreign Arbitral Awards signed at Geneva on<br />
16 September 1927 (the Geneva Convention) and the Protocol on Arbitration Clauses of 24 September<br />
1923. The convention on the settlement of investment disputes between States and Nationals of<br />
other States signed in Washington on 18 March 1965 (the Washington Convention) has also been<br />
GLI - <strong>Litigation</strong> & <strong>Dispute</strong> <strong>Resolution</strong> First Edition 129 www.globallegalinsights.com<br />
© Published and reproduced with kind permission by Global Legal Group Ltd, London
<strong>Appleby</strong><br />
Guernsey<br />
implemented in Guernsey under an extension of the Arbitration (International Investment <strong>Dispute</strong>s)<br />
Act 1966.<br />
The primary source of domestic arbitration law in Guernsey is statutory, being the Arbitration<br />
(Guernsey) Law, 1982. This law deals with both domestic arbitration proceedings as well as the<br />
enforcement of certain foreign arbitration awards. In addition, the (English) Arbitration (International<br />
Investment <strong>Dispute</strong>s) Act 1966 has been incorporated into domestic Guernsey law by the Arbitration<br />
(International Investment <strong>Dispute</strong>s) (Guernsey) Order 1968.<br />
There are provisions within the Arbitration (Guernsey) Law, 1982 which permit a party to apply to the<br />
Royal Court for a stay of Court proceedings where there is an agreement to arbitrate a dispute between<br />
the parties. Such an application must be made before the party delivers pleadings or takes any other<br />
steps in the Court proceedings.<br />
A domestic arbitration award will be enforced in the same manner as a Royal Court judgment.<br />
However, leave of the Court must first be sought in order to enforce it in such a manner. Foreign<br />
arbitration awards may also be enforced under procedures set out within the Arbitration (Guernsey)<br />
Law, 1982. The Royal Court is likely to look favourably on enforcing arbitration awards as it generally<br />
seeks to encourage alternative dispute resolution.<br />
Guernsey continues to see a relatively steady flow of disputes being referred to arbitration across a<br />
number of different types of dispute. Over recent years, a number of disputes have entailed some<br />
form of reference to the Royal Court for determination of particular issues, but this has not been<br />
particularly common. Further, recently the legislature of the Island has tacitly endorsed arbitration<br />
as an important form of dispute resolution following the enactment of the Trusts (Guernsey) Law,<br />
2007, which contains provisions which specifically provide for the arbitration of trust disputes. Such<br />
provisions are not often found in the trust legislation of different jurisdictions.<br />
Being a financial centre, and in particular an important jurisdiction for investment funds, insurance, the<br />
fiduciary sector, banking and asset management, there are a considerable number of legal agreements<br />
concluded each year under Guernsey law and/or involving Guernsey entities. An appreciable<br />
proportion of these agreements will include provisions to refer disputes to arbitration (although the<br />
proportion does tend to vary on an industry-specific basis). Accordingly, arbitration appears set to<br />
continue as an important form of dispute resolution within Guernsey, for which there is a good level<br />
of recognition and support, both through the legislature, judicially and through industry.<br />
The most prominent arbitral institution is the Channel Islands branch of the Chartered Institute<br />
of Arbitrators. However, there are a wide range of institutions which are commonly identified in<br />
arbitration agreements as the party which will choose and appoint the arbitrator for a reference under<br />
that agreement. Often arbitration agreements will not contain extensive provisions for the rules,<br />
language, fee structure and similar of a reference and therefore parties often conduct references<br />
adopting rules of their own agreement or rules produced by an external arbitral institution.<br />
Mediation and ADR<br />
The Royal Court has a duty under the Royal Court Civil Rules to actively manage cases which includes<br />
encouraging the parties to use any appropriate form of alternative dispute resolution. Mediation is<br />
a frequently used method of alternative dispute resolution with both locally based mediators and<br />
mediators from alternative jurisdictions, particularly England, being used regularly. The Royal<br />
Court’s duty extends to facilitating the use of ADR. Accordingly, civil proceedings will often be<br />
stayed to allow the parties to mediate, where such a course may lead to settlement. It should be noted,<br />
however, that under the Guernsey doctrine of peremption, further proceedings may be barred a year<br />
and a day after the last step taken in the proceedings, unless the Court exercises its discretion to restore<br />
the matter to the list. A recent pilot scheme encouraging mediation for publicly funded non-family<br />
disputes was deemed a success and has been maintained.<br />
* * *<br />
GLI - <strong>Litigation</strong> & <strong>Dispute</strong> <strong>Resolution</strong> First Edition 130 www.globallegalinsights.com<br />
© Published and reproduced with kind permission by Global Legal Group Ltd, London
<strong>Appleby</strong><br />
Guernsey<br />
Endnotes<br />
1 The head of the judiciary is the Bailiff. Other judicial appointments in the Royal Court include<br />
Deputy Bailiff, Lieutenant Bailiff and Judge.<br />
2 The Jurats are members of the public elected to the office of Jurat, part of the role of which is to<br />
perform determinations of fact in judicial proceedings, in a similar manner to that undertaken by<br />
juries.<br />
3 Which involves a plea for assistance, the recitation of the Lord’s Prayer in French and then the<br />
grace in French.<br />
GLI - <strong>Litigation</strong> & <strong>Dispute</strong> <strong>Resolution</strong> First Edition 131 www.globallegalinsights.com<br />
© Published and reproduced with kind permission by Global Legal Group Ltd, London
<strong>Appleby</strong><br />
Guernsey<br />
Jeremy Le Tissier<br />
Tel: +44 1481 755 605 / Email: jletissier@applebyglobal.com<br />
Jeremy Le Tissier is a partner and the local group head of the <strong>Litigation</strong> and<br />
Insolvency department. Jeremy practices all aspects of commercial litigation,<br />
contentious insolvency and contentious trust issues. He advises on fraud and asset<br />
recovery, disputes relating to banking and investments, directors and shareholders,<br />
and investment funds. He also advises on asset confiscation, money laundering issues,<br />
cross-border disputes, property related litigation and arbitration as well as proceeds<br />
of crime issues and regulatory matters. Jeremy is the treasurer of the Guernsey Bar<br />
Council. He is also an Associate of the Chartered Institute of Arbitrators, a member<br />
of the Proceeds of Crime Lawyers Association (POCLA) and is a Chartered Surveyor.<br />
Jeremy is also an international member of the Chancery Bar Association.<br />
Adam Cole<br />
Tel: +44 1481 755 614 / Email: acole@applebyglobal.com<br />
Adam Cole is an associate in the <strong>Litigation</strong> and Insolvency department. He practices<br />
all aspects of commercial litigation, contentious insolvency and contentious trust<br />
issues. Adam has experience of cases involving banking and investment funds,<br />
commercial property, regulatory issues and administration.<br />
<strong>Appleby</strong><br />
First Floor, Lefebvre Place, Lefebvre Street, St Peter Port, Guernsey GY1 2JP<br />
Tel: +44 1481 755 600 / Fax: +44 1481 728 992 / URL: http://www.applebyglobal.com<br />
GLI - <strong>Litigation</strong> & <strong>Dispute</strong> <strong>Resolution</strong> First Edition 132 www.globallegalinsights.com<br />
© Published and reproduced with kind permission by Global Legal Group Ltd, London
Strategic partners:<br />
www.globallegalinsights.com