JERSEY Law and Practice Contributed by: Marcus Pallot, Eleanor Davies and Christopher Tan, Carey Olsen
12.2 ADR Within the Legal System ADR is encouraged. Except in the Petty Debts Court, the court may not specifically order the parties to commit to ADR. However, any party unreasonably refusing to do so can expect that refusal to be taken into account by the court Given the size of Jersey’s legal market, the parties will usually look to England and Wales to find a mediator (as that jurisdiction has a large resource of experienced and unconflicted mediators). Mediations will take place in a loca- tion convenient for the parties, which may be on island or wherever else in the world is most convenient for the parties. when determining costs. 12.3 ADR Institutions 13. Arbitration 13.1 Laws Regarding the Conduct of Arbitration Arbitration is governed by the Arbitration (Jer- sey) Law 1998. The 1998 Law provides that a foreign arbitral award handed down in any country which is a signatory to the New York Convention is enforce- able as if it were a domestic award. Jersey has been a party to the New York Convention since 2002. In addition, the Law provides that awards under the Geneva 1927 Convention are also enforce- able. Awards from the International Centre of the Set- tlement of Investment Disputes are enforceable under the Arbitration (International Investment Disputes) (Jersey) Order 1979.
13.2 Subject Matters Not Referred to Arbitration Criminal matters may not be referred to arbitra - tion. In addition, it is possible that the existence of an arbitration clause will not prevent certain legal processes (eg, an application for désastre ) from being pursued. 13.3 Circumstances to Challenge an Arbitral Award The court is generally supportive of, and upholds, arbitral awards. There are no specific provisions in the Arbitration Law for setting aside or refus- ing to enforce domestic awards. However, an arbitral award may not be enforceable if the court considers that the defendant was not giv- en proper notice of the arbitration proceedings and, therefore, that the award was improperly procured, or where there was a procedural flaw. Similarly, where there is a pending challenge to an award, the court will also not enforce it. The court can set aside enforcement of foreign awards where the conditions for enforcement set out in Article 37 of the Arbitration Law are not met. These include the following conditions: • The award must have been made in accord- ance with the applicable arbitration proce- dure. • The defendant was given proper notice of the arbitration proceedings. • The award was not improperly procured. • There was no procedural flaw. • The award was final. It is also a requirement that the award be made in respect of a matter which may lawfully be referred to arbitration under Jersey law. The court will only review a domestic award if an appeal is made on a point of law and, even then,
738 CHAMBERS.COM
Powered by FlippingBook