Enforcement Of Judgments 2023 - Trials & Appeals & Compensation

1. Identifying Assets in the Jurisdiction

1.1 Options to Identify Another Party's Asset Position

Before determining which method of enforcement action will be most effective in a particular case, a plaintiff can exercise (as their resources permit and with regards to the state of pre-existing knowledge about the debtor's assets) the following options to assist in identifying assets within the jurisdiction:

Searches of Public Registers

the Land Registry – to confirm ownership of Bermuda real property and ascertain whether there are any registered charges over the property;
the Bermuda Shipping and Maritime Authority Shipping Registry – to confirm ownership of Bermuda vessels and ascertain whether mortgages are registered over the vessel's shares;
the Aircraft Registration section of the Bermuda Civil Aviation Authority and the Aircraft and Aircraft Engine Mortgage Register – to ascertain ownership of aircraft and whether mortgages are registered over the aircraft or aircraft engine;
Directors and Officers Register – to confirm the identity and addresses of a company's directors and officers;
Company Register maintained by the Registrar of Companies – the Company Register includes details of mortgages or charges registered against a company's assets, and also identifies whether a company is subject to winding-up proceedings;
Supreme Court Register maintained by the Registrar of the Supreme Court – the Supreme Court Register (Cause Book) can be searched upon filing a search praecipe and details whether there are recorded judgments and ongoing actions or proceedings; and
court records – subject to documents protected by certain privacy restrictions (such as proceedings relating to the enforcement of arbitral awards or to trust cases), the public has a right to request disclosure of specified types of documents from the Registrar of the Supreme Court including pleadings and orders but not evidence.

In Bermuda, it is also possible to obtain a Mareva (freezing) injunction in aid of execution of a final judgment where there is "solid and cogent" evidence that the judgment debtor has assets in Bermuda (or even outside the jurisdiction if a worldwide order is sought). A freezing order restrains a judgment debtor from disposing of or dissipating its assets. The court may also make ancillary orders providing for an asset disclosure order whereby the judgment debtor must produce an affidavit, setting out the nature, value, and location of its assets. This allows third parties such as banks and corporate service providers to be notified of the freezing order by the judgment creditor.

Additionally, a judgment creditor may apply to court for an order that a judgment debtor (or the director of a judgment debtor if it is a company) be examined on oath as to the judgment debtor's financial means. This is an application by summons, supported by an affidavit, and which is commonly granted "on the papers".

2. Domestic Judgments

2.1 Types of Domestic Judgments

Domestic judgments available from the Bermuda Court generally follow the trial or hearing of a dispute and take the form of:

money judgments ordering the defendant to pay a sum of money within a specified time;
judgments ordering a party to take or refrain from taking a specific action; and
declaratory judgments that establish the rights and/or obligations between the parties.

The first two forms of judgment are executory. The latter is declaratory in nature and cannot be enforced directly. However, if a defendant acts contrary to a declaration, the plaintiff may be able to commence proceedings for damages and/or apply to restrain the infringement of its legal rights.

In addition to final judgments following a trial, the following further remedies are available in Bermuda:

Interim remedies – pending a full trial, and where appropriate to be ordered at an interlocutory stage, the Bermuda Court may grant interim relief, which includes an interim freezing or proprietary injunction, an order requiring a party to provide certain information (Norwich Pharmacal relief) and declaratory relief
Summary judgment – under Order 14 of the Rules of the Supreme Court (RSC), once a defendant has entered an appearance and been served with the statement of claim, a plaintiff may apply for summary judgment. The trial court will enter judgment in favour of the plaintiff where it appears to the court that there is no viable defence to all or part of the claim. This is a relatively high threshold to meet.
Strike out – under Order 18, rule 19 of the RSC, either party may, at any stage of the proceedings, apply for the strike out of all or part of the other party's pleadings. Pleadings may be struck out where (i) they disclose no reasonable cause of action (or defence to a cause of action, as the case may be), (ii) the allegations are frivolous or vexatious, (iii) they are an abuse of the court's process or (iv) the pleading may prejudice, embarrass or delay the fair trial of an action. If a strike-out application is successful in respect of a party's entire claim (or defence) or part of a party's claim (or defence), the court will require that party to amend their pleadings or enter judgment against them.
Judgment in default – a default judgment may be obtained where a defendant has failed to enter an appearance and/or file a defence within the time prescribed by the RSC. A defendant may apply to have a regularly obtained default judgment set aside where it can demonstrate to the court that it has a defence with a real prospect of success or where there is "some other reason" for proceeding to trial. This type of application must be made promptly. If a default judgment has been obtained irregularly, however, it should be set aside as of right.

2.2 Enforcement of Domestic Judgments

Final money judgments may be enforced using any of the methods set out below. In each case, an application must be made to the court, together with a supporting affidavit.

Writ of Fieri Facias

A Writ of Fieri Facias, commonly known as "a writ of Fi Fa", may be issued immediately upon the expiry of any time provided for compliance with a judgment or order of the court. The writ of Fi Fa empowers the Provost Marshal General (Provost Marshal) or their deputy to take control of the defendant's goods. The process involves issuing a writ directed to the Provost Marshal to seize the debtor's assets and auction them to satisfy the judgment debt. Upon the sealed writ being delivered to the Provost Marshal, the property of the judgment debtor within Bermuda is bound to the Provost Marshal for execution.

Writ of Sequestration

Where a judgment debtor fails to comply with an order or judgment of the court, the party seeking enforcement, with the court's leave, may apply to have a sequester appointed (who is usually a local accountancy professional) to seize the judgment debtor's assets until the defendant complies with the order or judgment.

Garnishment Order

A garnishee order is a form of attachment order whereby a third party, most commonly a bank or employer, is directed to pay funds owed to the judgment debtor directly to the judgment creditor from the debtor's bank account or salary. This application is made ex parte supported by an affidavit. The supporting affidavit must identify the judgment or order to be enforced, state the unpaid amount, and that the judgment debtor is indebted to the judgment creditor. A garnishee order cannot usually be obtained in relation to a joint debt or future debt owed to the judgment debtor or where the court does not have jurisdiction (such as where the debt is owed in a different jurisdiction).

Appointment of a Receiver

Pursuant to Order 51 of the RSC, the court has the power to appoint a receiver over the judgment debtor's assets (such as shares where a dividend may be due) to assist in collecting in a judgment debtor's assets where it appears to the court to be "just and convenient" to do so. It is important to note that the court-appointed receiver's fees and expenses will take priority over any recovery and the appointment will not affect any property already subject to an exist ing security. A receiver acts as an officer of the court.

Freezing Order

As discussed above, the court has the power to issue a freezing order in aid of execution of a final judgment. Such an order may be appropriate where, absent restraint pending enforcement, the court is satisfied that there is a real risk that a judgment debtor will dispose of or dissipate its assets, rendering a judgment nugatory.

Order for Committal

An application for committal may be appropriate where a judgment debtor refuses or fails to comply with a judgment or order. An applicant can seek an order to send the judgment debtor (where the debtor is an individual) to prison for non-payment. However, the court will not grant such an order where the judgment debtor proves to the satisfaction of the court that he does not have the means to satisfy the judgment (Section 2 of the Debtors Act 1973).

In the case of a breach of an injunction, it is also open to a plaintiff to commence contempt proceedings, including committal to prison, sequestration of assets, and imposition of a fine (which may be ordered to take effect as a daily fine for as long as the breach persists). Where the defendant is a company, an application can be made against the company's directors providing that this possibility is expressly set forth the penal notice endorsed in the injunction. Contempt proceedings are generally reserved for serious or persistent breaches of court orders due to the draconian nature of the court's remedies.

Winding-Up/Bankruptcy Proceedings.

Winding Up/Bankruptcy Proceedings will wind up the judgment debtor company or bankrupt and individual debtor based upon non-payment of the judgment debt. In broad terms, the liquidator or trustee in bankruptcy is empowered by the court order to look into the assets and affairs of the debtor and collect in those assets. The debtor's assets will be distributed to repay the debts according to the priority of unsecured creditors based upon proof of debt. Unless the creditors are secured creditors or preferred creditors within the statutory categories recognised in Bermuda (such as employees for certain payments and for payment of taxes), creditors will be treated on a pari passu basis.

The above insolvency processes follow different procedural rules for corporate and personal insolvency. A statutory demand will be required in the case of bankruptcy but will often not be necessary to commence liquidation proceedings (unless deemed insolvency is to be relied upon as the ground for winding up). They are collective processes, where not only the interests of the judgment creditor will be taken into account, but also the interests of the general body of creditors.

Insolvency practitioners also have the power to investigate and apply to the court to reverse certain transactions (for example, fraudulent preferences and transfers of property at undervalue or for no value). This will be important where there are concerns that the judgment debtor has moved or sold assets, or made particular payments to associated entities, in order to put those assets beyond the scope of enforcement and outside the liquidation. These remedies contain statutory time limits and should be considered early on in cases where these types of concerns arise.

Note that charging orders are not available in Bermuda.

2.3 Costs and Time Taken to Enforce Domestic Judgments

The costs and timing of enforcement can be difficult to predict and will vary depending on the circumstances and complexity of the case and whether the debtor contests the process. Challenges to the method of enforcement, and the basis for such a challenge and whether it has merit or not, will delay proceedings and likely increase costs substantially. This is especially the case where execution of a judgment involves an order for the sale of a judgment debtor's property, such as a family home, to satisfy the judgment. By contrast, a Writ of Fi Fa should, theoretically at least, be a relatively quick and cost-effective procedure.

Where the insolvency route is taken, the costs of the insolvency professional will be deducted as a priority from the assets of the insolvent estate of the judgment debtor, and will therefore diminish the amounts available for distribution. These costs can be significant.

In high-value or particularly complex cases, it may be appropriate to pursue several different methods simultaneously. In this regard, it is crucial that prior consideration be given to which enforcement method will offer the greatest prospect of success for recovery.

2.4 Post-judgment Procedures for Determining Defendants' Assets

As discussed in 1.1Options to Identify Another Party's Asset Position, a judgment creditor may apply to the court for an oral examination of the judgment debtor. The court has the power to compel a person's attendance and the examination of the judgment debtor will take place under oath. The court also has the power to order a judgment debtor to produce relevant documents related to the judgment debtor's financial position.

Also, as set out above, in insolvency proceedings, a liquidator or trustee in bankruptcy will investigate the assets and affairs of the judgment debtor and call upon the directors of a company to produce a statement of affairs and disclose financial records.

2.5 Challenging Enforcement of Domestic Judgments

In the first instance, a judgment debtor may challenge the enforceability of judgment by way of an appeal on a point of law and then seek a stay pending appeal. The Bermuda court has a broad discretion to stay the execution of a judgment where circumstances make it inexpedient to enforce the judgment or order (Order 47 of the RSC). This will apply, for instance, where there are concerns about the judgment creditor's ability to repay the judgment debt if the appeal is successful. The court may attach conditions to the grant of a stay as it thinks fit including the posting of security by an appellant.

A judgment debtor may also challenge the enforcement of a judgment on technical grounds, including (i) that the court did not have jurisdiction to hear the dispute (eg, because Bermuda was not the proper forum to deal with the proceedings); (ii) that the pleadings were not properly served on the judgment debtor; or (iii) by seeking to set aside a judgment obtained in default.

2.6 Unenforceable Domestic Judgments

Judgments requiring a person to act or refrain from acting in a certain way or for the payment of money can be enforced by the courts of Bermuda (subject to any challenges to enforcement). Declaratory judgments may need to be enforced through fresh proceedings in relation to a breach or by way of injunctive relief.

Domestic judgments must be enforced within 20 years of the date the judgment became enforceable under Section 26 of the Limitation Act 1984 (Limitation Act).

2.7 Register of Domestic Judgments

All civil claims above BMD25,000 in value fall within the jurisdiction of the Supreme Court of Bermuda. Matters below that level are dealt with in the Magistrates Court. Supreme Court judgments are recorded in the Cause Book maintained by the Registrar of the Supreme Court. This information is not currently available online and must be searched in person for a nominal fee.

Before the Land Title Registration Act 2011 came into force, a Supreme Court judgment automatically attached to any land owned by the judgment debtor. Since 2 June 2018, a judgment must be registered with the Land Title Registrar against a judgment creditor's property to protect priority over property owned by the judgment debtor.

3. Foreign Judgments

3.1 Legal Issues Concerning Enforcement of Foreign Judgments

Bermuda has not entered into any bilateral or multilateral treaties for the reciprocal recognition and enforcement of foreign judgments. There are instead two mutually exclusive regimes for enforcement. Which procedure should be followed in each case will be determined by the identity of the country that issued the judgment.

Both regimes only apply to final money judgments made under the personal jurisdiction of a superior court in the relevant jurisdiction that are for a determinable sum of money (as defined in the judgment or order to be enforced or which can be calculated from it). The judgment must be conclusive between the parties. A judgment is deemed to be "conclusive", notwithstanding that there may be an appeal pending, or that the judgment can still be subject to an appeal. All other types of judgments will be unenforceable.

Statutory Regime

The Judgment (Reciprocal Enforcement) Act 1958 (JRE 1958) applies to judgments issued by the countries listed in the Judgment Extension Order 1956. The Commonwealth jurisdictions to which the JRE 1958 applies include England and Wales, Scotland, Northern Ireland, Barbados, British Guiana, Gibraltar, Grenada, Hong Kong, Leeward Islands, St Vincent, Jamaica, Dominica, St Lucia, the federal courts of Australia, as well as state or territory courts of New South Wales and the Northern Territory.

Common Law Regime

Enforcement of judgments not specifically covered by the JRE 1958, notably including the USA, China, and European Union member states, will need to be enforced at common law.

After recognition of a foreign judgment by the Bermuda courts, the same methods of enforcement as identified in 2.2 Enforcement of Domestic Judgments may be taken to enforce it.

3.2 Variations in Approach to Enforcement of Foreign Judgments

The rules and procedure to apply to enforce a foreign judgment are different for each regime. Under the JRE 1958, foreign judgments must be registered (in whole or part) before they can be enforced. Following registration, which is essentially an administrative process, the foreign judgment has the same effect and force as a judgment of the Supreme Court. Thus, for example, a Bermuda court may grant an asset freezing order in support of the judgment or appoint a receiver.

If the common law regime applies, a judgment creditor must issue fresh proceedings in Bermuda and obtain a domestic judgment, relying on the foreign judgment debt as forming the cause of action. This is not a "re-litigation" and the judgment debtor will be treated as having no defence on the merits (liability having already been decided and the foreign judgment being unimpeachable with regard to any error of law or fact). Usually, a judgment creditor will apply for default judgment if no appearance is entered, or summary judgment under Order 14 where it has been. Such an application must be supported by affidavit evidence that in effect will cover the same matters set out below under the JRE 1958.

3.3 Categories of Foreign Judgments Not Enforced

A final and conclusive money judgment is the only foreign judgment capable of enforcement in Bermuda. The following judgments are incapable of enforcement in Bermuda as a matter of public policy (although the first two below may be recognised by the Bermuda courts as a defence to a claim):

judgments for specific performance;
foreign injunctions; and
money judgments in respect of taxes or other charges of a like nature or in respect of a fine or other penalty.

3.4 Process of Enforcing Foreign Judgments

A party seeking to enforce a foreign judgment under the JRE 1958 must apply to the Supreme Court by way of an originating summons supported by affidavit evidence. This affidavit must state, insofar as possible, the full name and address of the judgment debtor, that the judgment creditor is entitled to enforce the judgment and that to the best of the judgment creditor's knowledge and belief, no grounds for defence to the application exist. A verified or certified copy of the judgment to be enforced is required.

No notice of registration needs to be given to a judgment debtor. Where an application is made ex parte, a judgment creditor is obliged to give full and frank disclosure of all material facts relevant to the application. The order registering the foreign judgment must be served personally or by serving it to the last known address of the judgment debtor before any practical enforcement measures are taken. A foreign judgment must be registered within six years from the date of judgment or after the date of the last judgment in the proceedings if there has been an appeal.

For foreign judgments that fall under the common law regime, a judgment creditor must issue fresh proceedings as set out in 3.2 Variations in Approach to Enforcement of Foreign Judgments. The limitation periods in the Limitation Act will apply to proceedings; for instance, six years for claims in contract and tort, to be calculated from the date of the foreign judgment.

3.5 Costs and Time Taken to Enforce Foreign Judgments

The length of the enforcement process and costs will vary depending on the circumstances of each case. Under both regimes, challenges, even if ultimately unsuccessful, will delay enforcement and increase costs. Enforcement of a JRE 1958 judgment cannot commence until the challenge period to set aside registration has expired. If there is a concern that the judgment debtor may dissipate assets during this time, a freezing injunction may be obtained in parallel.

The decision of the Supreme Court on an application to set aside, or obtained under the common law regime, is subject to a right of appeal to the Court of Appeal for Bermuda. Although this type of appeal is rare, it can cause delay as the Court of Appeal typically sits in only three sessions spread throughout the year (although "out of session" hearings may be convened in particularly urgent cases). The Bermuda court also retains the discretion to set aside registration of a foreign judgment, even if temporarily, to allow an appeal to be concluded.

In addition to the costs of enforcement, the RSC permits a judgment debtor to apply to obtain an order for security for costs. While a judgment creditor is not automatically required to make provision for security, one of the usual grounds upon which a court can order security is that a judgment creditor resides outside of Bermuda. Whether security will be ordered is a matter of judicial discretion.

3.6 Challenging Enforcement of Foreign Judgments

Grounds to challenge the enforcement of a foreign judgment will depend on whether the JRE 1958 route or common law principles apply

Under the JRE 1958, registration of a foreign judgment is liable to be set aside if one of the five conditions listed below is established:

the foreign judgment is not a judgment to which the JRE 1958 applies or the judgment was registered in contravention of the JRE 1958;
the judgment debtor did not receive sufficient notice of the proceedings; " the judgment was obtained
the rights conferred by the judgment are not vested in the person seeking enforcement; or
the matter in dispute, giving rise to the registered judgment, was previously determined and subject to a final and conclusive judgment by a foreign court having jurisdiction over the matter.

In addition, a judgment debtor may also challenge enforcement on the basis that the foreign court did not properly exercise jurisdiction over the judgment debtor. The jurisdictional competence test applied by the courts of Bermuda is set out in Bacardi Ltd & Others v Rente Investments Ltd [2005] Bda LR 60. In general terms, a party is considered to have submitted to the jurisdiction of the foreign court if:

the defendant voluntarily appeared in the proceedings and contested them on the merits;
the defendant agreed before the start of proceedings to submit to the jurisdiction of the foreign court (ie, by way of a contractual clause such as a jurisdiction clause); or
the person counterclaimed in the proceedings before the foreign court.

At common law, a judgment debtor may challenge enforcement on the following grounds:

lack of jurisdiction according to Bermuda's conflict of law principles;
the judgment was obtained by fraud;
enforcement of the judgment would be contrary to public policy (see Muhl (Superintendent of Insurance of the State of New York as Liquidator) of Nassau Insurance Co v Ardra Insurance Co Limited [1997] Bda LR 36); or where
the proceedings in which the judgment was obtained were contrary to the rules of nature justice (see Ellefsen v Ellefsen [1993] Bda LR 53).

4. Arbitral Awards

4.1 Legal Issues Concerning Enforcement of Arbitral Awards

n Bermuda, there are two separate statutory frameworks for arbitration. The International Conciliation and Arbitration Act 1993 (AA 1993), which incorporates the UNCITRAL Model Arbitration Law (Model Law), applies to all international commercial arbitrations unless the parties agree otherwise (Section 24 of the AA 1993).

The Arbitration Act 1986 (AA 1986) primarily governs domestic arbitrations but will apply to "international" arbitrations where the parties have expressly or by implication agreed that the AA 1993 will not apply

The AA 1993 provides for the enforcement and recognition of the New York Convention Awards (Convention Awards). With leave of the court, a Convention Award may be enforced by the Bermuda courts. Where leave is granted, the court will enter judgment in the terms of the award and thereafter such award is capable of enforcement in the same manner as a judgment of the Bermuda court. Accordingly, the same measures as identified in 2.2 Enforcement of Domestic Judgments may be taken to enforce the award.

4.2 Variations in Approach to Enforcement of Arbitral Awards

The main variation in approach relates to the differences in the scope of appeal of arbitral awards. The legislative framework in Bermuda reflects the strong public policy in the finality and enforcement of arbitral awards. Specifically, under the AA 1993, the statutory grounds to challenge an award are very narrow, and are limited to the grounds set out in 4.6 Challenging Enforcement of Arbitral Awards. In contrast, an award under the AA 1986 may be appealed to the Court of Appeal for Bermuda on questions of law.

4.3 Categories of Arbitral Awards Not Enforced

Bermuda is, generally speaking, a pro-arbitration jurisdiction. Both final money awards and declaratory awards can be enforced (the latter in the sense that the court will enter a domestic form order including the declaratory relief ordered by the arbitral tribunal).

Most awards are capable of enforcement in Bermuda. The exception is where there are public law consequences. To enforce an arbitral award, an arbitral award must meet the requirements of the particular convention or statute. In this regard, Article 31 of the Model Law provides that an award must be in writing, signed by all arbitrators, state the reasons for the award (unless otherwise agreed), and state the date and place the award was made. If an arbitral award does not meet these requirements, it cannot be enforced by the Bermuda courts. In relation to a Convention Award, the award must meet the New York Convention's requirements, namely that the award must be in writing and signed.

Partial or Interim Awards

In addition to final awards, under Section 36 of the AA 1993 and Section 22 of the AA 1986 respectively, a tribunal in an arbitration seated in Bermuda has the power to make partial or interlocutory award. Unless otherwise agreed, In addition to final awards, under Section 36 of the AA 1993 and Section 22 of the AA 1986 respectively, a tribunal in an arbitration seated in Bermuda has the power to make partial or interlocutory award. Unless otherwise agreed,

4.4 Process of Enforcing Arbitral Awards

An arbitral award is enforceable by action or by leave of the court as a judgment of the Supreme Court.

The procedure for enforcement and recognition of arbitral awards in Bermuda courts is set out in RSC Order 73. This process involves an application for leave to the Supreme Court. An application for leave is made under Section 37 of the AA 1986 (in respect of domestic awards), Section 40 of the AA 1993 (in respect of Convention Awards) or Section 48 of the AA 1993 (in respect of non-Convention Awards). The application for leave may be made ex parte; however, the court may, at its discretion, direct a summons to be issued in the form of an originating summons.

The application for leave must be supported by affidavit evidence that:

exhibits the original arbitration agreement and the original award or a certified copy of the same;
states the name and last known address or place of business of the applicant (creditor) and person against whom it is sought to enforce the award (debtor); and
confirms that the award has not been complied with (or sets out the extent to which the award has not been complied with).

If leave to enforce the award is granted, the order will be served on the defendant personally or by serving a copy to their last known address. If a defendant is a body corporate, the place of service is the registered address of the body corporate. Service of the order on a person resident outside of Bermuda is permissible without the leave of the court.

Once service has been effected, a defendant has a 14-day period (unless a longer period is otherwise expressed in the order) to apply to set aside the order. The award is not capable of enforcement until the expiry of this fixed period.

An action to enforce an arbitral award in Bermuda must be made within 20 years after the date on which the cause of action accrued (Section 9 of the Limitation Act).

4.5 Costs and Time Taken to Enforce Arbitral Awards

As set out above, the process for making an application for leave to the Supreme Court is relatively straightforward. The duration and costs will depend primarily on whether enforcement is challenged. In addition to the costs of enforcement, under the Stamp Duty Act 1976, nominal stamp duty is payable on an arbitration award (0.25% of the value up to a maximum of BMD25).

4.6 Challenging Enforcement of Arbitral Awards

Under the AA 1986, subject to the consent of the parties or leave of the Supreme Court, an award can be appealed to the Court of Appeal as to questions of law arising out of a domestic award (Section 37 of the AA 1986). In general terms, the Supreme Court will not grant leave unless the determination of a question of law would substantially affect the parties' rights to the arbitration.

In contrast, under Section 42 of the AA 1993, the grounds upon which an arbitration award may be challenged are limited. There is no right to challenge an award on the merits. The grounds for refusal to recognise or enforce an award are limited by statute to the following:

a party to the arbitration agreement was under some incapacity;
the arbitration agreement was invalid under the law of the country where the award was made;
proper notice of the appointment of the arbitrator or the arbitration proceedings was not given;
the award deals with a dispute outside the scope of the arbitration agreement;
the composition of the arbitral tribunal or the arbitral procedure was not in accord with the agreement of the parties;
the subject matter of the dispute is not capable of settlement by arbitration under the laws of Bermuda; or
the award is in conflict with the public policy of Bermuda,

Stay of Enforcement Proceedings Pending Set-Aside Proceedings

The Supreme Court has a discretion to stay enforcement proceedings pending the conclusion of set-aside proceedings in the supervisory jurisdiction of the arbitral seat. The Bermuda court's power to stay enforcement of a foreign award is contained in Section 7 of the AA 1986 and Section 36(2) of the AA 1993 respectively. In LAEP Investments Ltd v Emerging Markets Special Solutions 3 Ltd [2015] Bda LR 36, the Bermuda Court of Appeal held that a stay order issued by the courts in the seat of arbitration means an arbitration award was not capable of enforcement pending the conclusion of the appeal.

However, the judgment of the Supreme Court in CAT SA v Priosma Limited [2019] Bda LR 69 makes it clear that a judgment debtor may be ordered to provide security in the full amount of the award and costs as a condition of the grant of a stay of enforcement proceedings. In the exercise of its discretion to do so, the Bermuda court will consider: (i) the strength of the argument that the award is invalid, and (ii) whether enforcement of the award will be more difficult if enforcement is delayed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Bermuda: Enforcement Of Judgments 2023