Cross-border Judicial Cooperation in Offshore Litigation (the British Offshore World)

Friday, 01 January 2010
A review of the book by Ian R C Kawaley, Andrew J Bolton and Robin J Mayor.

This is an excellent book, and makes a fascinating and important addition to any law library.

It is relatively expensive at GBP135, but the succinct and detailed commentary from the most distinguished and knowledgeable list of contributors, all of whom are busy practitioners, means that this is money well spent.

This reviewer is tempted to plagiarise, or should that be taken as a precedent, extensively from the foreword by the, at least equally, distinguished Sir Anthony Evans; but before we get that far let us consider why the timing for this edition is inspired.

While the so-called offshore world of ‘sunny places for shady people’ has been tabloid fodder for years, the present reality is that those independent territories and countries, which prefer the PC and more descriptively accurate term of International Financial Centres (IFCs), have slowly emerged over the last twenty years as hubs that have facilitated and even generated the flow of finance and funds, which have lubricated the phenomenon of Globalisation. In itself this is an economic paradigm shift, which has an effect, for good or ill, on the daily lives of those in both the developed and developing world.

An inevitable consequence of commerce and its dizygotic twin, finance, are disputes arising that require resolution. With an increasing number of parties present in the IFCs, and applicable laws coming from there, demand for quality legal advice and judicial services in these selfsame centres, has increased. And while a great deal of the load has been taken by international arbitration, there remains a hard core of legal and factual issues that yield only to the application of direct judicial intervention. In today’s world, where the ownership of an emergent telephone colossus or the finance of a world class football player, may have their roots in an IFC, even the non-specialist practitioner is aware of the necessity to have at least one eye on the niceties of offshore litigation. And the simple fact is that there is more common law influence in the laws and legal systems of the world’s IFCs, than perhaps any other.

The core material of the book covers Bermuda, The British Virgin Islands, The Cayman Islands, The Isle of Man, Guernsey and Jersey. And for each of these six there is a section which deals with, in turn: Obtaining Evidence for use in Foreign Proceedings; Enforcing Foreign Judgments and Judicial Cooperation in Cross Border Insolvency. Each section is itself headed by a separate chapter, which is always titled: ‘The Shared Legal Heritage’, which seeks to draw attention to common and diverse features between the six countries analysed within that section. It is a formula which is a little cumbersome to describe but which works extremely well. You can dive right in to the chapter that interests you and your current client or file, but you can also compare it to related jurisprudence and what might be your own experience in your home state.

The table of more than 200 cases cited shows that there is real law making and interpretation at work, and the list of household names that appear in the citations confirm the fact that globalisation is truly at work here. Perhaps this is where the future of transnational commercial legal practice really lies.

Given the groundbreaking nature of this work, niggles there are but they are surprisingly few. In any comparative text there is a tendency for the writers to put forward, and for the reader to look for, a straight comparison. The editors have done an excellent job in ensuring that we are not just presented with a series of comparative tables, and the readability and succinctness of the texts is excellent. There are a few occasions when a comment as to a practice or procedure leaves one thinking, “...and then what?...” for the same issue elsewhere. Happily there is often some intriguing local detail, like the four divisions of the Jersey Royal Court being Heritage, Samedi, Family and Probate. One might make a reasonable guess at Family and Probate but one’s natural curiosity longs to know what or why are Heritage and Samedi? But 300 pages is already a good size tome, so a line has to be drawn.

Aside from the law and procedure that is covered in this book, the fact that the authors are practitioners first and foremost, means that the diligent but maybe less experienced reader will find nuggets of practical advice sprinkled liberally in the text. For example, if you require a document copy or similar evidence for use before a foreign court, make sure that you ask the foreign lawyer exactly what he needs, do not imagine that just because it is a common law system that what you usually prepare will be accepted. Simple, certainly, but legion are the times where we, admittedly in an alien civil law jurisdiction, have met this problem from our foreign counterparts.

I can do no better now than to quote from Sir Anthony Evans’ Foreword:

“No one will read this book from cover to cover at a single sitting, but all who have a professional or business interest in international commerce and finance will be glad to have it on their bookshelves, and they will consult it often.”

I heartily concur, and have nothing to add.


Title: Cross-border Judicial Cooperation in Offshore Litigation (the British Offshore World)

Author: Ian R C Kawaley, Andrew J Bolton and Robin J Mayor

ISBN: 978 0 85490 043 5

Price: GBP135

Publisher: Wilby Simmonds & Hill

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Graham Wilson

Graham Wilson TEP is a Lawyer at Wilson Associates and is Chairman of STEP Benelux.

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