Jersey: Enforcement Of Foreign Arbitral Awards In Jersey

Last Updated: 26 January 2017
Article by Edward Drummond

This briefing explains how foreign arbitral awards may be enforced in Jersey.

Jersey has its own legal system and is a separate jurisdiction from that of England and Wales, although the United Kingdom retains a role in relation to Jersey's international affairs.

Enforcement of foreign arbitral awards in Jersey is principally governed by the Arbitration (Jersey) Law 1998, as amended ("Arbitration Law"). The requirements for such enforcement depend on where the award was made. As well as enforcement, relevant awards may also be relied upon in legal proceedings in Jersey.

Awards from the International Centre for the Settlement of Investment Disputes ("ICSID") arising from disputes between states and nationals of other states are subject to a separate registration regime.

Convention awards

Awards made pursuant to an arbitration agreement in the territory of a state which is a party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 are defined as "Convention awards" and are enforceable under Part 4 of the Arbitration Law.

There are over 150 parties to the New York Convention and it was extended to Jersey in 2002.

A Convention award is enforceable in Jersey in one of two ways:1

(i) by action - in other words, by issuing fresh proceedings based on the award and seeking a judgment from the Jersey court giving the same relief as is granted by the award; or
(ii) by following the same summary procedure that applies to the enforcement of a domestic award - with the leave of the Jersey Court on an application made ex parte, it may be enforced in the same manner as a Jersey judgment or order to the same effect, and the Jersey Court will specify the manner of enforcement.2

Moreover, a Convention award will be treated as binding on the parties to it for all purposes, and may accordingly also be relied on by way of defence, set off or otherwise in any legal proceedings in Jersey.

The party seeking to enforce or rely upon a Convention award must produce the following:

  • the duly authenticated original award or a duly certified copy of it;
  • the original arbitration agreement or a duly certified copy of it;3 and
  • where the award or agreement is in a foreign language, a translation of it certified by an official or sworn translator or by a diplomatic or consular agent.

There is a strong presumption in favour of enforcement of Convention awards. Enforcement of a Convention award shall not be refused except in the cases mentioned in Article 44 of the Arbitration Law. Article 44 provides that enforcement may be refused if the opposing party proves:

  • that a party to the arbitration agreement was (under the law applicable to the party) under some incapacity;
  • that the arbitration agreement was not valid under the law to which the parties subjected it or, failing any indication thereon, under the law of the country where the award was made;
  • that the person was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present the person's case;
  • that the award deals with a difference not contemplated by, or not falling within the terms of, the submission to arbitration or contains decisions on matters beyond the scope of the submission to arbitration - save that if there are decisions on matters both inside and outside of the scope of the arbitration and they can be separated, any award on matters which were submitted to arbitration may still be enforced;
  • that the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, with the law of the country where the arbitration took place; or
  • that the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made.

Enforcement of a Convention award may also be refused if the award is in respect of a matter which is not capable of settlement by arbitration, or if it would be contrary to public policy to enforce the award.

Where an application for the setting aside or suspension of a Convention award has been made to a competent authority of the country in which, or under the law of which, it was made, the Jersey court may, if it thinks fit, adjourn the enforcement proceedings and may, on the application of the party seeking to enforce the award, order the opposing party to give security.4

Foreign awards

In the rare cases where the New York Convention does not apply,5 but an arbitral award has been made (amongst other things) in a territory to which the Geneva Convention on the Execution of Foreign Arbitral Awards 1927 ("Geneva Convention") applies, it may be enforceable as a "foreign award" under Part 3 of the Arbitration Law.

As with Convention awards, such foreign awards are enforceable in Jersey either by action or in the same manner as a domestic arbitration award, and may also be relied upon by the parties by way of defence, set off or otherwise in any legal proceedings in Jersey.

By Article 37(1) of the Arbitration Law, in order that a foreign award may be enforceable, it must have:

  • been made in pursuance of an agreement for arbitration which was valid under the law by which it is governed;6
  • been made by the tribunal provided for in the agreement or constituted in the manner agreed upon by the parties;
  • been made in conformity with the law governing the arbitration procedure;
  • become final in the country in which it was made (and it will not be deemed final if any proceedings for the purpose of contesting the validity of the award are pending in the country in which it was made); and
  • been in respect of a matter which may lawfully be referred to arbitration under the law of Jersey.

The enforcement must also not be contrary to the public policy or the law of Jersey.

Under Article 37(2) of the Arbitration Law, a foreign award shall not be enforceable if the Jersey Court is satisfied that:

  • the award has been annulled in the country in which it was made;
  • the party against whom it is sought to enforce the award was not given notice of the arbitration proceedings in sufficient time to enable the party to present the party's case, or was under some legal incapacity and was not properly represented; or
  • the award does not deal with all the questions referred or contains decisions on matters beyond the scope of the agreement for arbitration - save that if the award does not deal with all the questions referred, the Court may, if it thinks fit, either postpone the enforcement of the award or order its enforcement subject to the giving of such security by the person seeking to enforce it as the Court may think fit.

By Article 37(3) of the Arbitration Law, if a party seeking to resist the enforcement of a foreign award proves that there is some other ground entitling the party to contest the validity of the award, the Jersey court may, if it thinks fit, either refuse to enforce the award or adjourn the hearing until after the expiration of such period as appears to the court to be reasonably sufficient to enable that party to take the necessary steps to have the award annulled by the competent tribunal.

Registration of ICSID awards

ICSID was established in 1966 by the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States, a multilateral treaty formulated by the World Bank to further its objective of promoting international investment.

The Arbitration (International Investment Disputes) (Jersey) Order 1979 provides that a person seeking recognition or enforcement in Jersey of an award rendered pursuant to the ICSID Convention shall be entitled to have the award registered in the Royal Court.

Any sum payable in a foreign currency will be converted to pounds sterling at the exchange rate applicable at the date the award was rendered. The applicant can also claim for the reasonable costs of and incidental to registration. If the award has been partially satisfied, it will only be registrable to the extent of the balance remaining unpaid (and if satisfied in full, it will not be registrable).

In respect of the pecuniary obligations which it imposes, a registered award shall be of the same force and effect for the purposes of execution as if it had been a judgment of the Jersey court. In particular, proceedings may be taken on the award, the sum for which the award is registered shall carry interest, and the Jersey court shall have control over the execution of the award in Jersey.

Whilst the 1979 Order provides that the Jersey court may make rules of court to prescribe the procedure for applying for registration, no such rules have been made. We would expect the Court to require an application supported by affidavit evidence and exhibiting a certified copy of the ICSID award.

Footnotes

1. Article 42 of the Arbitration Law. See for example, Botas v Tepe [2016] JCA 135.

2. Article 29.

3. In Representation of Fitzpatrick International Limited [2013] JRC 253, the Jersey court accepted that where neither an original nor certified copy of the arbitration agreement could be found, reference to the terms of the arbitration agreement in the duly certified copy award was sufficient.

4. See, for example, Range Energy v Black Gold Khalakan [2014] JRC 197A where an adjournment was granted on condition that the sum of $2.65m be paid into court.

5. By Article 41, if an award would be both a "Convention award" and a "foreign award", it must be enforced as a Convention award under Part 4 as Part 3 "shall not apply to it".

6. By Article 40(c), Part 3 expressly does not apply to an award made on an arbitration agreement governed by Jersey law - wherever the seat of the arbitration.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Edward Drummond
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.