Knowledge

This briefing explains how foreign arbitral awards may be enforced in Jersey.

Jersey has its own legal system and is a separate jurisdiction from that of England and Wales, although the United Kingdom retains a role in relation to Jersey's international affairs.

Enforcement of foreign arbitral awards in Jersey is principally governed by the Arbitration (Jersey) Law 1998, as amended ("Arbitration Law"). The requirements for such enforcement depend on where the award was made. As well as enforcement, relevant awards may also be relied upon in legal proceedings in Jersey.

Awards from the International Centre for the Settlement of Investment Disputes ("ICSID") arising from disputes between states and nationals of other states are subject to a separate registration regime.

Convention awards
Awards made pursuant to an arbitration agreement in the territory of a state which is a party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 are defined as "Convention awards" and are enforceable under Part 4 of the Arbitration Law.

There are over 150 parties to the New York Convention and it was extended to Jersey in 2002.

A Convention award is enforceable in Jersey in one of two ways:[1]

(i) by action - in other words, by issuing fresh proceedings based on the award and seeking a judgment from the Jersey court giving the same relief as is granted by the award; or
(ii) by following the same summary procedure that applies to the enforcement of a domestic award - with the leave of the Jersey Court on an application made ex parte, it may be enforced in the same manner as a Jersey judgment or order to the same effect, and the Jersey Court will specify the manner of enforcement.[2]

Moreover, a Convention award will be treated as binding on the parties to it for all purposes, and may accordingly also be relied on by way of defence, set off or otherwise in any legal proceedings in Jersey.

The party seeking to enforce or rely upon a Convention award must produce the following:

• the duly authenticated original award or a duly certified copy of it;
• the original arbitration agreement or a duly certified copy of it;[3] and
• where the award or agreement is in a foreign language, a translation of it certified by an official or sworn translator or by a diplomatic or consular agent.

There is a strong presumption in favour of enforcement of Convention awards. Enforcement of a Convention award shall not be refused except in the cases mentioned in Article 44 of the Arbitration Law. Article 44 provides that enforcement may be refused if the opposing party proves:

• that a party to the arbitration agreement was (under the law applicable to the party) under some incapacity;
• that the arbitration agreement was not valid under the law to which the parties subjected it or, failing any indication thereon, under the law of the country where the award was made;
• that the person was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present the person’s case;
• that the award deals with a difference not contemplated by, or not falling within the terms of, the submission to arbitration or contains decisions on matters beyond the scope of the submission to arbitration - save that if there are decisions on matters both inside and outside of the scope of the arbitration and they can be separated, any award on matters which were submitted to arbitration may still be enforced;
• that the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, with the law of the country where the arbitration took place; or
• that the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made.

Enforcement of a Convention award may also be refused if the award is in respect of a matter which is not capable of settlement by arbitration, or if it would be contrary to public policy to enforce the award.

Where an application for the setting aside or suspension of a Convention award has been made to a competent authority of the country in which, or under the law of which, it was made, the Jersey court may, if it thinks fit, adjourn the enforcement proceedings and may, on the application of the party seeking to enforce the award, order the opposing party to give security.[4]

Foreign awards
In the rare cases where the New York Convention does not apply,[5] but an arbitral award has been made (amongst other things) in a territory to which the Geneva Convention on the Execution of Foreign Arbitral Awards 1927 ("Geneva Convention") applies, it may be enforceable as a "foreign award" under Part 3 of the Arbitration Law.

As with Convention awards, such foreign awards are enforceable in Jersey either by action or in the same manner as a domestic arbitration award, and may also be relied upon by the parties by way of defence, set off or otherwise in any legal proceedings in Jersey.

By Article 37(1) of the Arbitration Law, in order that a foreign award may be enforceable, it must have:

• been made in pursuance of an agreement for arbitration which was valid under the law by which it is governed;[6]
• been made by the tribunal provided for in the agreement or constituted in the manner agreed upon by the parties;
• been made in conformity with the law governing the arbitration procedure;
• become final in the country in which it was made (and it will not be deemed final if any proceedings for the purpose of contesting the validity of the award are pending in the country in which it was made); and
• been in respect of a matter which may lawfully be referred to arbitration under the law of Jersey.

The enforcement must also not be contrary to the public policy or the law of Jersey.

Under Article 37(2) of the Arbitration Law, a foreign award shall not be enforceable if the Jersey Court is satisfied that:

• the award has been annulled in the country in which it was made;
• the party against whom it is sought to enforce the award was not given notice of the arbitration proceedings in sufficient time to enable the party to present the party’s case, or was under some legal incapacity and was not properly represented; or
• the award does not deal with all the questions referred or contains decisions on matters beyond the scope of the agreement for arbitration - save that if the award does not deal with all the questions referred, the Court may, if it thinks fit, either postpone the enforcement of the award or order its enforcement subject to the giving of such security by the person seeking to enforce it as the Court may think fit.

By Article 37(3) of the Arbitration Law, if a party seeking to resist the enforcement of a foreign award proves that there is some other ground entitling the party to contest the validity of the award, the Jersey court may, if it thinks fit, either refuse to enforce the award or adjourn the hearing until after the expiration of such period as appears to the court to be reasonably sufficient to enable that party to take the necessary steps to have the award annulled by the competent tribunal.

Registration of ICSID awards
ICSID was established in 1966 by the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States, a multilateral treaty formulated by the World Bank to further its objective of promoting international investment.

The Arbitration (International Investment Disputes) (Jersey) Order 1979 provides that a person seeking recognition or enforcement in Jersey of an award rendered pursuant to the ICSID Convention shall be entitled to have the award registered in the Royal Court.

Any sum payable in a foreign currency will be converted to pounds sterling at the exchange rate applicable at the date the award was rendered. The applicant can also claim for the reasonable costs of and incidental to registration. If the award has been partially satisfied, it will only be registrable to the extent of the balance remaining unpaid (and if satisfied in full, it will not be registrable).

In respect of the pecuniary obligations which it imposes, a registered award shall be of the same force and effect for the purposes of execution as if it had been a judgment of the Jersey court. In particular, proceedings may be taken on the award, the sum for which the award is registered shall carry interest, and the Jersey court shall have control over the execution of the award in Jersey.

Whilst the 1979 Order provides that the Jersey court may make rules of court to prescribe the procedure for applying for registration, no such rules have been made. We would expect the Court to require an application supported by affidavit evidence and exhibiting a certified copy of the ICSID award.

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[1] Article 42 of the Arbitration Law. See for example, Botas v Tepe [2016] JCA 135.

[2] Article 29.

[3] In Representation of Fitzpatrick International Limited [2013] JRC 253, the Jersey court accepted that where neither an original nor certified copy of the arbitration agreement could be found, reference to the terms of the arbitration agreement in the duly certified copy award was sufficient.

[4] See, for example, Range Energy v Black Gold Khalakan [2014] JRC 197A where an adjournment was granted on condition that the sum of $2.65m be paid into court.

[5] By Article 41, if an award would be both a "Convention award" and a "foreign award", it must be enforced as a Convention award under Part 4 as Part 3 "shall not apply to it".

[6] By Article 40(c), Part 3 expressly does not apply to an award made on an arbitration agreement governed by Jersey law - wherever the seat of the arbitration.