Litigation & Dispute Resolution - Appleby

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Appleby Guernsey implemented in Guernsey under an extension of the Arbitration (International Investment Disputes) Act 1966. The primary source of domestic arbitration law in Guernsey is statutory, being the Arbitration (Guernsey) Law, 1982. This law deals with both domestic arbitration proceedings as well as the enforcement of certain foreign arbitration awards. In addition, the (English) Arbitration (International Investment Disputes) Act 1966 has been incorporated into domestic Guernsey law by the Arbitration (International Investment Disputes) (Guernsey) Order 1968. There are provisions within the Arbitration (Guernsey) Law, 1982 which permit a party to apply to the Royal Court for a stay of Court proceedings where there is an agreement to arbitrate a dispute between the parties. Such an application must be made before the party delivers pleadings or takes any other steps in the Court proceedings. A domestic arbitration award will be enforced in the same manner as a Royal Court judgment. However, leave of the Court must first be sought in order to enforce it in such a manner. Foreign arbitration awards may also be enforced under procedures set out within the Arbitration (Guernsey) Law, 1982. The Royal Court is likely to look favourably on enforcing arbitration awards as it generally seeks to encourage alternative dispute resolution. Guernsey continues to see a relatively steady flow of disputes being referred to arbitration across a number of different types of dispute. Over recent years, a number of disputes have entailed some form of reference to the Royal Court for determination of particular issues, but this has not been particularly common. Further, recently the legislature of the Island has tacitly endorsed arbitration as an important form of dispute resolution following the enactment of the Trusts (Guernsey) Law, 2007, which contains provisions which specifically provide for the arbitration of trust disputes. Such provisions are not often found in the trust legislation of different jurisdictions. Being a financial centre, and in particular an important jurisdiction for investment funds, insurance, the fiduciary sector, banking and asset management, there are a considerable number of legal agreements concluded each year under Guernsey law and/or involving Guernsey entities. An appreciable proportion of these agreements will include provisions to refer disputes to arbitration (although the proportion does tend to vary on an industry-specific basis). Accordingly, arbitration appears set to continue as an important form of dispute resolution within Guernsey, for which there is a good level of recognition and support, both through the legislature, judicially and through industry. The most prominent arbitral institution is the Channel Islands branch of the Chartered Institute of Arbitrators. However, there are a wide range of institutions which are commonly identified in arbitration agreements as the party which will choose and appoint the arbitrator for a reference under that agreement. Often arbitration agreements will not contain extensive provisions for the rules, language, fee structure and similar of a reference and therefore parties often conduct references adopting rules of their own agreement or rules produced by an external arbitral institution. Mediation and ADR The Royal Court has a duty under the Royal Court Civil Rules to actively manage cases which includes encouraging the parties to use any appropriate form of alternative dispute resolution. Mediation is a frequently used method of alternative dispute resolution with both locally based mediators and mediators from alternative jurisdictions, particularly England, being used regularly. The Royal Court’s duty extends to facilitating the use of ADR. Accordingly, civil proceedings will often be stayed to allow the parties to mediate, where such a course may lead to settlement. It should be noted, however, that under the Guernsey doctrine of peremption, further proceedings may be barred a year and a day after the last step taken in the proceedings, unless the Court exercises its discretion to restore the matter to the list. A recent pilot scheme encouraging mediation for publicly funded non-family disputes was deemed a success and has been maintained. * * * GLI - Litigation & Dispute Resolution First Edition 130 www.globallegalinsights.com © Published and reproduced with kind permission by Global Legal Group Ltd, London
Appleby Guernsey Endnotes 1 The head of the judiciary is the Bailiff. Other judicial appointments in the Royal Court include Deputy Bailiff, Lieutenant Bailiff and Judge. 2 The Jurats are members of the public elected to the office of Jurat, part of the role of which is to perform determinations of fact in judicial proceedings, in a similar manner to that undertaken by juries. 3 Which involves a plea for assistance, the recitation of the Lord’s Prayer in French and then the grace in French. GLI - Litigation & Dispute Resolution First Edition 131 www.globallegalinsights.com © Published and reproduced with kind permission by Global Legal Group Ltd, London
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Page 3 and 4: Guernsey Jeremy Le Tissier & Adam C
Page 5: Appleby Guernsey of £227 per hour
Page 9: Strategic partners: www.globallegal

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