Staying Power
About MJM Limited
MJM is one of Bermuda’s leading law firms. We have a broad ranging practice with an emphasis on civil and commercial litigation, banking and finance, general corporate, trusts, insolvency, restructuring, insurance and reinsurance. We also offer advice and services to international individual and commercial private clients.
MJM Limited’s full profile on mjm.bm.
Article 8 UNCITRAL Model Law
In September of this year we acted on a very significant international commercial dispute where the question arose as to whether proceedings in Bermuda would be stayed pending the determination of arbitral proceedings in Canada which would deal with the central question of whether a previous settlement agreement extended to the Defendant and whether the Defendant had a complete defence to the Claim.
The judgment is significant in that it deals extensively with the application of article 8 of the UNCITRAL model law on international commercial arbitration as incorporated into the law of Bermuda by Section 23 of the Bermuda International Conciliation & Arbitration Act 1993. The Court accepted our submissions that the right to apply for a stay had not been lost by engaging in correspondence with the Plaintiff’s attorneys and agreeing to a directions timetable for the progress of an Originating Summons prior to the service of a defence.
The Court approved a first instant decision of Waung J. in the Supreme Court of Hong Kong in Lois Dreyfus Trading Limited v Bonarich International Group [1997] HK CFI and found that article 8(1) provides for a mandatory stay until the defendant submits a statement to the Court such as a defence dealing with the substance of the dispute. However, the Court found that the Defendant was not entitled to a mandatory stay under article 8 or under case management grounds as the parties to the arbitration and to the Bermuda court proceedings were not identical and there would be no mutually binding estoppels between the parties to the Bermuda litigation as a result of findings in the Canadian Arbitration. Further, the Court found that the confidentiality provisions of the Canadian Arbitration would make the establishment of what such findings were problematic. Nevertheless the heavily redacted judgment produced by Justice Hellman provides the first detailed analysis in Bermuda of the functioning of ground 8 and applications for mandatory stays of domestic proceedings in Bermuda pending the resolution of international arbitrations in other jurisdictions.