Author Archives: Jennifer Haworth

There have been some important changes in the Supreme Court of Bermuda in the months of June and July of this year. Chief Justice Ian Kawaley stepped down in mid-July and was given much praise for his contributions to jurisprudent in Bermuda at a Special Sitting of the Bermuda Bar on 13 July.  Mr Justice Kawaley was appointed to the Supreme Court in 2003 and was a founding member of Bermuda’s Commercial Court. He was appointed Chief Justice in 2012. Just before his departure as Chief Justice, Mr Kawaley, also issued the second edition of his book Offshore Commercial Law in Bermuda published by Wildy Simmonds & Hill.

Kawaley’s successor, now Chief Justice, Narinder Hargun was sworn in on 16 July 2018. Mr Hargun has over 35 years of professional legal experience, appearing as Counsel in the Supreme Court, the Court of Appeal and the Privy Council as well as serving as an Assistant Justice of the Supreme Court since 2011.

In addition, at the beginning of July, former Registrar Shade Subair-Williams, was appointed as Puisne Judge in the Supreme Court. Justice Subair-Williams held the position of Registrar for two years during which she often sat as an acting Puisne Judge.

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It is well recognised that in the context of certain types of banking transactions a presumption of undue influence can arise. An example of this would be where an individual is agreeing to charge a property which they own in order to secure the debts of their spouse. The question of whether a lack of independent legal advice invalidated a guarantee was considered recently in a case before the Chief Justice: Clarien Bank v E Kempe.

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In the first decision of its kind, the Bermuda Supreme Court has utilized its powers under Section 39 of the Arbitration Act 1986 (the “Act”) to terminate an arbitration – and in this case a very important one – the arbitration between The Allied Trust and Allied Development Partners Limited (together “Allied”) and The Government of Bermuda. This decision follows Parliament’s voiding of Allied’s lease over the Hamilton Waterfront (the “Waterfront Arbitration”).
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In December 2016, the legislature in Bermuda passed the Bribery Act 2016 (the “Act”) which came into force on 1 September 2017. The Act is based on the UK Bribery Act 2010.

In the past, there were several separate laws dealing with bribery and corruption offences in Bermuda, such as the Criminal Code 1907 (Section 111 Official Corruption and Section 112 Extortion By Public Officers), the Parliament Act 1957 and the Parliamentary Election Act 1978. But as of 1 September, we have one comprehensive statute that sets out bribery offences in Bermuda, including the offence of failure of commercial organisations to prevent bribery, a strict liability offence for which the only defence is for a commercial organisation to demonstrate that it had ‘adequate procedures’ to prevent bribery.

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In December 2016, the legislature in Bermuda passed the Bribery Act 2016 (the “Act”) which will come into force on 1 September 2017. The Act is based on the UK Bribery Act 2010.

Currently, there are several separate laws dealing with bribery and corruption offences in Bermuda, such as the Criminal Code 1907 (Section 111 Official Corruption and Section 112 Extortion By Public Officers), the Parliament Act 1957 and the Parliamentary Election Act 1978. But as of Friday, there will be one comprehensive statute which sets out what constitutes bribery in Bermuda.
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