Bermuda: Supreme Court Of Bermuda Applies Pro-Enforcement Approach In Enforcing Foreign Arbitration Award

CAT SA v Priosma Limited [03.09.19]
Last Updated: 7 October 2019
Article by Mark Chudleigh and Lewis Preston

Bermuda's international business community is well known for embracing the arbitration process: the chosen form of dispute resolution for insurers and reinsurers and their counterparties. When called upon to do so, Bermuda's courts have exhibited a pro-arbitration approach as most recently demonstrated by the decision in CAT SA v Priosma Limited – Civil Jurisdiction 2019: No. 099 (3 September 2019), which concerned an application by a judgment debtor to set aside an ex parte order of the court enforcing a foreign arbitration award against a Bermuda-domiciled entity.

Request to deny enforcement

Bermuda is a party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) and its provisions are incorporated into the Bermuda International Conciliation and Arbitration Act 1993 (the 1993 Act). In the CAT SA case, the Bermuda Court was asked to refuse the enforcement of a French arbitration award on one of the very few grounds permitted under the New York Convention, namely that the foreign arbitral tribunal lacked jurisdiction to make the impugned award. This limited opportunity for review is in line with the approach taken in numerous jurisdictions whereby arbitral tribunals are accorded great deference in arriving at their substantive decision but courts preserve the right to review the threshold issue of whether jurisdiction to determine the dispute has been conferred on the tribunal.

In the CAT SA case, however, the Bermuda Court had to address the novel situation where the judgment debtor (Priosma) had previously tried and failed to challenge the foreign arbitral tribunal's jurisdiction before the supervising court, in this case the French Court of Appeal. The enforcing party (CAT) argued that, having taken this approach, Priosma had forfeited its right to reargue the point before the Bermuda Court.

Case facts

The case concerned a brokerage agreement, originally between CAT and a Bermuda broker, Kitson Brokerage Services Limited (Kitson), which contained a clause for resolution of disputes by arbitration in Paris, France. Two years later a former director of Kitson established Priosma to provide reinsurance broking services in Bermuda and it was agreed in correspondence that Priosma would take over the brokerage work previously done by Kitson.

A dispute later arose between the parties about Priosma's liability to pay brokerage to CAT. CAT commenced arbitration proceedings in Paris against Priosma, alleging that the correspondence, when properly construed, incorporated the French arbitration agreement that CAT had had with Kitson. In the arbitration, Priosma argued, among other matters, that the arbitral tribunal lacked jurisdiction over it because Priosma's agreement with CAT did not include an agreement to arbitrate in Paris.

After contested arbitration proceedings in Paris, the arbitral tribunal found against Priosma and made a financial award in CAT's favour (the Award).

Thereafter, Priosma appealed the Award in the French Court of Appeal on the same basis and, after contested proceedings, the French Court of Appeal also rejected Priosma's jurisdiction argument on the same basis as the arbitral tribunal.

At that stage, after four years of contested proceedings, CAT applied and obtained an ex parte Order to enforce the Award against Priosma in Bermuda.

Priosma then appealed to France's highest court, the Cour de Cassation, to set aside the Award and applied to the Bermuda Court to set aside its order enforcing the Award on the basis that the arbitral tribunal was said to have lacked jurisdiction. In the alternative, Priosma sought a stay of enforcement of the Award in Bermuda pending its appeal to the Cour de Cassation.

Bermuda proceedings

CAT argued before the Bermuda Court that the decision of the French Court of Appeal had created an "issue estoppel" (or "issue preclusion" as it is sometimes referred to), the effect of which was to prevent Priosma re-arguing jurisdiction before the Bermuda Court notwithstanding the New York Convention and the 1993 Act both ostensibly permitting such a challenge.

The Bermuda Court held that, by electing to pursue a review before the French Court of Appeal, Priosma had thereby submitted to the jurisdiction of the French Courts and therefore Priosma was precluded (or estopped) from repeating its jurisdictional arguments in Bermuda. Priosma's application to set aside the ex parte order was therefore dismissed.

This was a novel ruling under the New York Convention as, although there is English case law addressing issue estoppel in the context of the enforcement of foreign court judgments, there was no precedent in the context of the enforcement of arbitration awards. The Chief Justice observed that to allow the unsuccessful party to litigate the same issue in the courts of the supervisory jurisdiction, and in the courts of the enforcing jurisdiction, would be contrary to the pro-enforcement policy underlying the New York Convention.

In light of Priosma's pending appeal to the Cour de Cassation, Bermuda's Chief Justice was willing to stay its enforcement order. However, in doing so, the Court applied the "sliding scale" test from English authorities, which takes into account the probability of success, to assess the amount of security that Priosma should be required to post as a condition of a stay and held that it was appropriate to require Priosma to post security for the full amount of the Award.

Kennedys also contributed the Bermuda chapter to the ICLG Guide to International Arbitration 2019, which can be found here.

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. Kennedys operates in Bermuda in association with Kennedys Chudleigh Ltd.

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

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

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Practice Guides
by Mondaq Advice Centres
Relevancy Powered by MondaqAI
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions