BERMUDA Law and Practice Contributed by: Michael Hanson, Keith Robinson, Sam Stevens and Kyle Masters, Carey Olsen
11.2 Factors Considered When Awarding Costs The court retains discretion when ordering costs. It can take into account the behaviour of the winning or losing party during the conduct of the trial, includ- ing any refusal to accept reasonable offers to settle the claim. The court will determine the “winner” of an action by considering which party “in real-life terms” could be said to have been successful. Unless there is some compelling reason to depart from this rule, the court will not attempt to determine success on an issue-by-issue basis in the context of awarding costs. 11.3 Interest Awarded on Costs Costs, whether awarded on taxation or agreed, are entitled to interest for the period from which the order is made until it is paid under the Interest and Credit Charges (Regulation) Act 1975. 12. Alternative Dispute Resolution (ADR) 12.1 Views of ADR Within the Country Arbitration and mediation are the most common forms of ADR in Bermuda. Bermuda is a sophisticated hub for international arbitration (in particular the arbitra- tion of complex insurance and reinsurance disputes) and has incorporated the UNCITRAL Model law into its domestic legislation via the Bermuda International Conciliation and Arbitration Act 1993. A branch of the Chartered Institute of Arbitrators was established in Bermuda in 1996. The Bermuda branch’s primary function is to run arbitration training courses and to act as an appointing authority where asked to do so. The court has repeatedly confirmed in judgments relat- ing to the enforcement of arbitration agreements and awards that it will adopt a pro-enforcement stance on such matters, in keeping with Bermuda’s obligations under the New York Convention (which has had the
12.3 ADR Institutions The principal institution for ADR in Bermuda is the Bermuda branch of the Chartered Institute of Arbi- trators. The Institute has localised procedural rules for mediation and arbitration, which are based on the UNCITRAL Rules. 13. Arbitration 13.1 Laws Regarding the Conduct of Arbitration Bermuda has two separate statutes governing arbi- tration: • the Arbitration Act 1986; and • the Bermuda International Conciliation and Arbitra- tion Act 1993. The 1986 Act governs “domestic” arbitrations (in effect, arbitrations with no international element or parties involved) and is based on an amalgamation of old English statutes. An interesting feature of arbitra- tion conducted under the 1986 Act is that there is a mechanism allowing parties to appeal an award to the Bermuda Court of Appeal on a point of law. While the 1986 Act does make provision for interna- tional as well as domestic disputes, the 1993 Act pro- vides only for international disputes that are of a com- mercial nature. As stated in 12.1 Views of ADR Within the Country , the 1993 Act incorporates the UNCI- TRAL Model Law into Bermuda law. The Model Law provides for the enforcement of arbitration awards on the same basis as the New York Convention. 13.2 Subject Matters Not Referred to Arbitration Apart from criminal matters, there are generally no restrictions on the subject matters that may be referred to arbitration in Bermuda. Although there is certainly room for doubt as to whether matters involv- ing corporate insolvency, minority shareholder and partnership disputes can be arbitrated, this has not yet been tested before the courts.
force of law in Bermuda since 1979). 12.2 ADR Within the Legal System
The use of ADR is not mandated under the Rules but that fact has not prevented the growth of its popularity and use, particularly mediation.
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