JERSEY Law and Practice Contributed by: Amy Benest, William Redgrave, Jared Dann and Lynne Gregory, Baker & Partners
4.4 Process of Enforcing Arbitral Awards In order to apply to enforce an arbitral award, the applicant can either issue an ex parte Representation or issue fresh proceedings, as explained in 3. Foreign Judgments under the Customary Method. In the case of a Protocol and Geneva Convention award, the applicant must provide an affidavit exhib - iting the original award, or an authenticated copy of it, as well as evidence proving that the award has become final, and such evidence to show that the award has been made further to the arbitration agree - ment, by a tribunal provided for in the agreement or by consent of the parties, made in compliance with the law of the arbitration, and may be enforced as a matter of Jersey law and was made in respect of a dispute which, as a matter of Jersey law, may be referred to arbitration. In the case of a New York Convention award, the applicant must provide an affidavit exhibiting a duly authenticated original award or a duly certified copy of it; the original arbitration agreement or a duly certified copy of it and, where applicable, a certified translation of the award and/or agreement into English. 4.5 Costs and Time Taken to Enforce Arbitral Awards Whether the applicant is seeking to enforce a New York Convention award or a Protocol and Geneva Convention award, the costs and time taken will large - ly depend upon whether the defendant challenges the enforcement action. If the applicant issues an ex parte Representation supported by an affidavit which provides to the court all the necessary information and the defendant does not then seek to challenge the enforcement action, the order may be obtained for the costs of preparing the application. A court fee will be applicable. Such Representations may be listed to be heard each Friday by the Royal Court. If an applicant issues proceedings under the Custom - ary Method, the same time period and costs will apply. Once at the enforcement stage, if enforcing against assets in Jersey, the applicant’s Jersey Advocates will
need to instruct the Viscount to enforce the award. The Viscount will apply a standard scale fee. 4.6 Challenging Enforcement of Arbitral Awards In relation to Protocol and Geneva Convention awards, there are positive factors that must be proved by the applicant. The Arbitration Law also specifies factors which, if present, mean that the award may not be enforced. In order for the court to grant permission for an arbitral award under the Protocol and Geneva Convention to be enforced, the arbitral award must: • be made further to an arbitration agreement which is valid under the law by which it is governed; • be made by a tribunal provided for in the arbitration agreement, or constituted in a manner agreed upon by the parties; • be made in compliance with the law of the arbitra - tion; • be final in the country in which it was made; and • be made in respect of a matter which may lawfully be referred to arbitration as a matter of Jersey law. Enforcement in Jersey must not be contrary to public policy or the law of Jersey. In addition, arbitral Awards under the Protocol and Geneva Convention are not enforceable if: • he award has been annulled in the country in which it was made; • the “defendant” party for enforcement was not given notice of the arbitration in sufficient time to allow them to present their case or was operating under some legal incapacity, or was not properly represented; or • the award does not concern the issues referred to arbitration or goes beyond the scope of the arbitration (in which case the court may postpone the enforcement or order enforcement subject to security). The court may either refuse to allow enforcement or adjourn enforcement to allow the defendant sufficient time to annul the award.
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