GUERNSEY Law and Practice Contributed by: Elaine Gray and Steven Balmer, Carey Olsen
13. Arbitration 13.1 Laws Regarding the Conduct of Arbitration The Arbitration (Guernsey) Law, 2016 provides a framework for arbitration of disputes in Guern- sey and is similar in structure to the Arbitration Act 1998 in England and Wales, and the UNCI- TRAL Model Law on International Commercial Conciliation 2002. Parties who have entered into an arbitration agreement or clause can apply to the Royal Court (or any jurisdiction where proceedings have been raised) for a stay of proceedings in relation to the dispute. The court must grant the stay unless it is satisfied that the arbitration agreement is null and void, inoperative, or inca- pable of being performed. The arbitration will be confidential and hence conducted in private unless the agreement stipulates otherwise. 13.2 Subject Matters Not Referred to Arbitration There are no non-arbitrable subject matters in Guernsey, albeit in practice there remain some doubts over the use of arbitration in some areas. Subject to the parties’ agreement, the arbitra- tor can decide all matters of procedure and evi- dence and may appoint experts or legal advis- ers, or assessors to help with technical matters. 13.3 Circumstances to Challenge an Arbitral Award A dissatisfied party can apply to the court to challenge an arbitral award within 28 days thereof, giving notice to the other party and the tribunal. The grounds for so doing include where the court has substantive jurisdiction (to con- firm/vary or set aside the award in whole/part)
costs being awarded against that party, includ- ing potentially on an indemnity basis. 11.3 Interest Awarded on Costs Interest is available on any costs ordered pursu- ant to a judgment, with the applicable interest rate being the current judgment rate of 8%. 12. Alternative Dispute Resolution (ADR) 12.1 Views of ADR Within the Country The overriding objective of Guernsey’s Rules encourages the parties to resolve disputes as early as possible and it is therefore common in Guernsey for parties to be encouraged to under- take ADR, such as mediation, arbitration and/or expert determination. 12.2 ADR Within the Legal System At all times, the court must have the overriding objective in mind of dealing with cases justly and to save expense. The court is expected to be an active case manager, which includes “encourag- ing the parties to use any appropriate form of ADR and facilitating the use of such procedures” (Rule 38(2)(e) Royal Court Civil Rules, 2007). Where a party refuses to engage in ADR and subsequently settles or is found liable, the fail- ure to engage is a factor the court may take into account when determining the question of costs. 12.3 ADR Institutions There are a number of local qualified mediators in Guernsey, and, in addition, the Chartered Institute of Arbitrators has a Channel Islands committee which offers access to qualified mediators and arbitrators. In practice, parties will often use a mediator from one of the rec- ognised bodies based in the UK, such as the Centre for Effective Dispute Resolution.
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