BRITISH VIRGIN ISLANDS Law and Practice Contributed by: Andrew Emery and Mary-Frances Morris, Emery Cooke
4.5 Confidentiality Mediation is conducted on a “without prejudice” basis; the information disclosed within any mediation remains confidential and cannot be publicly released or used in later proceedings. Settlement terms are confidential unless agreed otherwise. Arbitration is confidential but that confidentiality may be lifted during certain court processes. 4.6 Costs There is no single principle governing how costs should be allocated in ADR. It depends on the form of ADR. • Mediation – costs are usually born by each party, unless a settlement agreement states otherwise. • Arbitration – costs are awarded and/or allocated in
cally remain uncertain. Maintenance and champerty are no longer criminal wrongs in the BVI but, as in England and Wales, they remain, in part, a civil wrong or tort. Judges have tended to take a favourable view of the issue of funding, taking the standpoint that it is now a modern-day reality of legal practice and litiga- tion. 5.3 Contingency Fee Arrangement Under the Legal Profession Act 2020, legal practition- ers are allowed to enter into CFAs that are “fair and reasonable”. There is, however, no formal definition of that phrase and no guidance. A common sense approach must, therefore, be taken. 5.4 Insurance Insurance coverage for BVI litigation, arbitration, and ADR is available primarily through ATE (After the Event) insurance (which is usually only available to claimants), sourced from international markets. There is no dedicated BVI regulatory framework for such products. ATE insurance is most commonly encoun- tered as a condition of third-party litigation funding arrangements, providing protection against adverse costs awards. Parties involved in BVI commercial dis- putes, particularly those being funded by third parties, would be well advised to consider ATE insurance as a core element of their risk management strategy. 5.5 Costs The winning side in any litigation or arbitration in the BVI can apply for their costs from the losing side. However, they remain at the discretion of the courts and subject to assessment if not agreed. 5.6 Assessment of Costs The BVI courts exercise broad discretion when award- ing costs (as do arbitration panels). While the principle of costs following the event is the starting point, the court will look at overall conduct of the parties, at all stages of the proceedings, their willingness to engage in ADR (if appropriate), the complexity of the dispute at hand, whether or not all issues were won or lost and whether or not third-party funders were involved. A fair and reasonable basis is applied.
the Final Arbitral Award. 4.7 Courts and ADR
The BVI courts strongly encourage early settlement of disputes and encourage the use of ADR when appro- priate and where the parties agree to explore ADR. As a consequence, the courts are very keen to uphold any agreement reached.
5. Costs, Fees and Funding 5.1 Legal Fees
Only legal practitioners admitted to the roll and hold- ing a valid practising certificate can practise in the BVI and charge fees. This is set out in the Legal Profes- sion Act (Revised Edition) 2020. Legal practitioners are entitled to charge fees that are fair and reason- able. However, no guidance has been given on what constitutes fair and reasonable and practitioners must still maintain their independence and integrity under the Act. 5.2 Third-Party Funding Litigation funding is permissible in the BVI with the result that third parties can fund litigation and other liquidation fees and expenses in appropriate cases and on appropriate terms. However, there is no regula- tion of third-party litigation funding and the issues of champerty and maintenance and funding still techni-
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