BERMUDA Law and Practice Contributed by: Michael Hanson, Keith Robinson, Sam Stevens and Kyle Masters, Carey Olsen Bermuda Limited
11.2 Factors Considered When Awarding Costs The court retains discretion when ordering costs. It can take into account the behaviour of the win- ning or losing party during the conduct of the trial, including any refusal to accept reasonable offers to settle the claim. The court will deter- mine 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 award- ing 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 Inter- est 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 sophis- ticated hub for international arbitration (in par- ticular the arbitration of complex insurance and reinsurance disputes) and has incorporated the UNCITRAL Model law into its domestic legisla- tion via the Bermuda International Conciliation and Arbitration Act 1993. A branch of the Char- tered Institute of Arbitrators was established in Bermuda in 1996. The Bermuda branch’s pri- mary function is to run arbitration training cours- es and to act as an appointing authority where asked to do so. The court has repeatedly confirmed in judg- ments relating 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 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. 12.3 ADR Institutions The principal institution for ADR in Bermuda is the Bermuda branch of the Chartered Institute of Arbitrators. The Institute has localised proce- dural 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 arbitration: • the Arbitration Act 1986; and • the Bermuda International Conciliation and Arbitration Act 1993. The 1986 Act governs “domestic” arbitrations (in effect, arbitrations with no international element or parties involved) and is based on an amal- gamation of old English statutes. An interesting feature of arbitration conducted under the 1986 Act is that there is a mechanism allowing par- ties to appeal an award to the Bermuda Court of Appeal on a point of law. While the 1986 Act does make provision for international as well as domestic disputes, the 1993 Act provides only for international disputes
139 CHAMBERS.COM
Powered by FlippingBook