BERMUDA Law and Practice Contributed by: Michael Hanson, Keith Robinson, Sam Stevens and Kyle Masters, Carey Olsen
13.3 Circumstances to Challenge an Arbitral Award Under the Model Law, a party can seek to set aside an award. In order to do so, the party must prove that: • as a party to the arbitration agreement, it was under some incapacity, or the agreement was not valid under the law to which the parties had sub- jected it; • it was not given proper notice of the appointment of an arbitrator or of the arbitration proceedings, or was otherwise unable to present its case; • the award deals with a dispute not contemplated by the terms of the arbitration agreement or con- tains decisions on matters beyond the scope of the submission to arbitration; • the composition of the arbitration tribunal or the procedure was not in accordance with the agree- ment of the parties; • the subject matter of the dispute was not capable of settlement by arbitration under the law of Ber- muda; and/or • the award is in conflict with the public policy of Bermuda. A party wishing to set aside the arbitration award must apply to the court within three months from the date of receipt of the award. 13.4 Procedure for Enforcing Domestic and Foreign Arbitration Leave to enforce an award is obtained by applying to the court to enforce the award in the same manner as a judgment. An originating summons must be issued on an ex parte basis, supported by an affidavit. The affidavit should set out the basic facts of the arbitra- tion, the fact that there was an agreement to arbitrate and a hearing, and that an award had been made. The relevant exhibits to the affidavit would be the arbitra- tion agreement and the original award. The application is for leave to enter judgment, and once the order granting leave has been made, a copy of the order is served on the losing party. The order will normally contain the time that the losing party may have if it wishes to set aside the order. If an applica- tion is made to have it set aside, there is a hearing. If there is not, then the award can be enforced after the
expiration of the period set out in the order as if it were a judgment of the court.
14. Outlook 14.1 Proposals for Dispute Resolution Reform At the opening of the 2025 judicial year, the Chief Justice for Bermuda announced the pending procure- ment of an electronic case management system for use by all levels of the Bermuda court system, includ- ing a tender deadline of February 2025. The system will incorporate electronic filing and payment of fees and reduce the need for paper filing. The Chief Justice reiterated that funding had been approved for exten- sive renovations to Bermuda’s courtrooms, which will result in a dedicated courtroom for the Court of Appeal for Bermuda. A “Judicial Complaints Proto- col” was announced, then issued and made effective on 4 April 2025. Amongst other things, the protocol creates an advisory Complaints Sub-committee to oversee complaints and, more generally, to assist the Court in filtering complaints, while also setting general procedural guidelines. The Chief Justice noted that the Commercial Court has become increasingly willing to accommodate remote hearings, and indicated that this would continue in the future. There are otherwise no known proposals for dispute resolution reform in Bermuda. 14.2 Growth Areas Regulated entities in Bermuda are experiencing an uplift in activity from regulators, in particular, the island’s pre-eminent financial regulator, the Bermu- da Monetary Authority (BMA). The BMA has shown a willingness to exercise its powers of enforcement and oversight by, among other things, seeking the appointment of “light touch” provisional liquidators in an effort to protect investors and/or policyholders, or alternatively, conducting its own investigations. The introduction of the Digital Asset Business Act in 2018 has contributed to Bermuda’s growth as a juris- diction which supports the digital asset industry. Such growth will inevitably result in a spate of regulatory, commercial and insolvency-related disputes touching on issues relating to digital assets in the jurisdiction.
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