BERMUDA Law and Practice Contributed by: Michael Hanson, Keith Robinson, Sam Stevens and Kyle Masters, Carey Olsen Bermuda Limited
that are of a commercial nature. As stated in 12.1 Views of ADR Within the Country , the 1993 Act incorporates the UNCITRAL 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 involving corporate insolvency, minor- ity shareholder and partnership disputes can be arbitrated, this has not yet been tested before the courts. 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 subjected it; • it was not given proper notice of the appoint- ment of an arbitrator or of the arbitration pro- ceedings, or was otherwise unable to present its case; • the award deals with a dispute not con- templated by the terms of the arbitration agreement or contains decisions on mat- ters beyond the scope of the submission to arbitration; • the composition of the arbitration tribunal or the procedure was not in accordance with the agreement of the parties;
• the subject matter of the dispute was not capable of settlement by arbitration under the law of Bermuda; 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 apply- ing 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 arbitration, 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 arbitration 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 los- ing party. The order will normally contain the time that the losing party may have if it wishes to set aside the order. If an application 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 2024 judicial year, the Chief Justice for Bermuda announced the pending procurement of an electronic case manage-
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