Subject-Matter Index

Abandonment of domicile. See Domicile—domicile of choice. Domicile—domicile of origin

Acquisition of domicile. See Domicile—domicile of choice

Action by foreign state. See Application of foreign law—foreign public law

Anti-suit injunctions. See Parallel foreign proceedings—restraint of foreign proceedings. INJUNCTIONS (Anti-suit injunction)

Application of foreign law

foreign penal law

not enforcement of foreign penal law if no exercise of foreign sovereign power for state’s benefit—Royal Court may recognize appointment of receiver under foreign penal law, e.g. if recognition to enable compensation of defrauded investors and little chance that foreign state benefits: Terry v. Butterfield Bank (Guernsey) Ltd. (Royal Ct.), 2005–06 GLR 327

foreign public law

application of foreign public law barred if “central interest” of state bringing proceedings governmental in nature—claims presented by state officials as personal and proprietary (e.g. threats to personal safety of President and property of state by coup d’état) may nonetheless in substance be governmental in nature: Equatorial Guinea (President) v. Royal Bank of Scotland Intl. (P.C.), 2005–06 GLR 373

public policy reasons for refusing to provide remedies to foreign governments faced with revolution—invidious to question character and trustworthiness of friendly foreign government—to avoid discrimination, all assistance therefore refused to all governments: Equatorial Guinea (President) v. Royal Bank of Scotland Intl. (P.C.), 2005–06 GLR 373

foreign revenue law

Guernsey trustee’s liability (under English Taxation of Chargable Gains Act 1992, Schedule 5, para. 6(2)) to indemnify English settlor for capital gains tax paid following incorrect legal advice given to trustee not precluded by rule against direct or indirect enforcement of foreign revenue claims: Kleinwort Benson (Guernsey) Trustees Ltd. v. Wilson (Royal Ct.), 2000–02 GLR 509

joinder of HMRC to Hastings-Bass application may be allowed if asking court to resolve issue which might affect right to enforce tax legislation in UK, remedy sought not indirect application of UK tax law in Guernsey, and HMRC not raising defence in order to assert tax collection right: H.M. Revenue & Customs v. Gresh (C.A.), 2009–10 GLR 239

no joinder of HMRC to Hastings-Bass proceedings (if UK tax liability may arise because trustee’s discretion exercised on incorrect advice)—inappropriate indirect enforcement of UK tax law: Gresh v. RBC Trust Co. (Guernsey) Ltd. (Royal Ct.), 2009–10 GLR 216

foreign tort law

for purposes of double actionability, in absence of proof to contrary, foreign law assumed to be same as Guernsey law: Vardinoyannis v. Ansol Ltd. (Royal Ct.), 2000–02 GLR 221

foreign trust law. See Trusts—limitation of trustees’ liability

Jersey trusts law

Jersey trusts law normally matter of fact to be proved in Guernsey by expert evidence—with agreement of all parties, Guernsey courts may consider and construe Trusts (Jersey) Law 1984 as if were Guernsey statute: Investec Trust (Guernsey) Ltd. v. Glenalla Properties Ltd. (C.A.), 2014 GLR 371

Trusts (Jersey) Law 1984, art. 32(1)(a) applies in Guernsey to limit liability of trustee for debts of trust if trust governed by Jersey law—relevant law determined by proper law of entity rather than proper law of obligation—common law recognizes limitation of liability arising under entity’s constitutive law by reason of status or capacity in which members or officers assume obligation: Investec Trust (Guernsey) Ltd. v. Glenalla Properties Ltd. (P.C.), 2018 GLR 97

service out of jurisdiction. See CIVIL PROCEDURE (Service out of jurisdiction)

Appointment of receivers. See Recognition of foreign proceedings—appointment of receiver

Assistance from foreign court

evidence in foreign jurisdiction. See EVIDENCE (Assistance from foreign court—letter of request)

Assistance to foreign court

discretion of Guernsey court

active assistance—may allow recognized foreign liquidator to contest interpleader proceedings in Guernsey to decide ownership of disputed assets, as preliminary to claiming assets to which company in liquidation entitled: EFG Private Bank (C.I.) Ltd. v. B.C. Capital Group S.A. (Royal Ct.), 2013 GLR 354

examination of documents and witnesses

European Convention on Mutual Assistance in Criminal Matters 1959 given effect in Guernsey by Criminal Justice (International Co-operation) (Bailiwick of Guernsey) Law 2001—facilitates provision of evidence in foreign jurisdictions—art. 12(1) protects against prosecution of witnesses as result of giving evidence—no circumvention of Convention if person summonsed to give evidence in foreign jurisdiction put at risk of prosecution by doing so and foreign court regards him as “prosecuted person,” since art. 12(1) not then applicable: In re B (C.A.), 2011–12 GLR 694

family proceedings. See FAMILY LAW (Children—assistance to foreign court)

inherent jurisdiction of Guernsey court

no inherent jurisdiction to extend foreign statutory bankruptcy procedure conferring powers on foreign trustee in bankruptcy to summon and examine witnesses to help trace Guernsey assets, based on combination of usefulness, generous view of analogy with Guernsey legislation, and reliance on “modified universalism” in insolvency law: In re X (A Bankrupt) (Royal Ct.), 2015 GLR 248

letter of request

evidence. See EVIDENCE (Assistance to foreign court—letter of request)

Guernsey court to assist English courts pursuant to Insolvency Act 1986, s.426 (applicable in Guernsey by Insolvency Act 1986 (Guernsey) Order 1989) unless compelling reason not to do so—court may apply insolvency law of Guernsey and of England and Wales so far as corresponds to Guernsey insolvency law: Batty v. Bourse Trust Co. Ltd. (Royal Ct.), 2017 GLR 54

letter of request from English court under Bankruptcy Act 1914, ss. 122–123, or Insolvency Act 1986, s.426, seeking assistance of Royal Court in enabling English trustee in bankruptcy to examine witnesses and documents in tracing bankrupt’s Guernsey assets enables Royal Court to exercise own jurisdiction and English jurisdiction—preferable to “conjuring up” dubious inherent jurisdiction of Royal Court to achieve same ends: In re X (A Bankrupt) (Royal Ct.), 2015 GLR 248

Asymmetric jurisdiction clauses. See Jurisdiction—asymmetric jurisdiction clauses

Bankruptcy and insolvency. See Recognition of foreign proceedings—foreign trustee in bankruptcy. BANKRUPTCY AND INSOLVENCY

Children

legitimacy

application to determine child’s legitimacy probably to be made first to courts of child’s domicile: A Father v. H.M. Greffier (Royal Ct.), 2015 GLR 22

status of legitimacy determined by child’s domicile of origin—takes parents’ domicile if both domiciled in same jurisdiction: A Father v. H.M. Greffier (Royal Ct.), 2015 GLR 22

Civil procedure

commencement of proceedings

details of procedure governed by lex fori even when structure of procedure governed by lex causae—when foreign lex causae refers to commencement of proceedings, Guernsey law as lex fori prescribes details of commencement according to Royal Court Civil Rules 2007, r.89: Braun v. Brantridge Estates Ltd. (Royal Ct.), 2009–10 GLR 252

trial of preliminary issue

Guernsey court may take preliminary decision as to incorporation of jurisdiction clause by reference to Guernsey law as lex fori—once lex causae established, to be used for definitive decision: Winnetka Trading Corp. v. Bank Julius Baer & Co. Ltd. (C.A.), 2009–10 GLR 260

Comity

anti-suit injunctions. See Parallel foreign proceedings—restraint of foreign proceedings

recognition of Guernsey judgment

comity requires that HMRC respects Guernsey Royal Court judgment as judgment of court of competent jurisdiction—improper to seek joinder in Guernsey proceedings with intention of not being bound by judgment if joinder refused: Gresh v. RBC Trust Co. (Guernsey) Ltd. (Royal Ct.), 2009–10 GLR 216

service out of jurisdiction. See CIVIL PROCEDURE (Service out of jurisdiction—alternative means of service)

Companies

foreign-appointed receiver. See Recognition of foreign proceedings—appointment of receiver

share transfer

proper law is law of jurisdiction in which the company incorporated and share register kept: Dervan v. Concept Fiduciaries Ltd. (Royal Ct.), 2013 GLR 1

Contempt of court. See COURTS (Contempt of court—contempt committed overseas)

Contracts

exclusive jurisdiction clauses. See Jurisdiction—exclusive jurisdiction clauses

Cross-border insolvency

discretion of Guernsey court. See Assistance to foreign court—discretion of Guernsey court

foreign liquidator. See Recognition of foreign proceedings—foreign liquidator

foreign trustee in bankruptcy. See Recognition of foreign proceedings—foreign trustee in bankruptcy

inherent jurisdiction of Guernsey court

letter of request

stay of Guernsey proceedings. See Parallel foreign proceedings—stay of Guernsey proceedings

Domicile

domicile of choice

abandoned by ceasing residence and ceasing intention of permanent or indefinite residence—testator who left Guernsey for several years but always intended to return did not take unequivocal steps to acquire new domicile: Cooney v. AFR Executors (Guernsey) Ltd. (Royal Ct.), 2016 GLR 18

acquired by taking up residence with intention to permanently reside: In re Ackrill (Royal Ct.), 2000–02 GLR 207

acquired by taking up residence with intention to reside permanently or indefinitely—immaterial that residence in hotel—declaration of domicile of origin in will not determinative: Executor v. Eight Beneficiaries (Royal Ct.), 2017 GLR N [8]

acquired by taking up residence with unequivocal intention to reside permanently or indefinitely—court to consider any relevant circumstances: O’Connor v. Corner (Royal Ct.), 2021 GLR N [1]

acquired by taking up residence with unequivocal intention to reside permanently or indefinitely—court to consider any relevant circumstances, e.g. declaration of intention—immaterial that residence chosen because more favourable tax or testamentary law: Cooney v. AFR Executors (Guernsey) Ltd. (Royal Ct.), 2016 GLR 18

deceased who was born in England but died in Guernsey retained English domicile throughout life—domicile of choice not acquired by settling in Guernsey from 1995 to 2000, owning property, running business and paying taxes but without intending to acquire new domicile, nor by move from England to Guernsey in 2005 without intending to remain and thereafter losing capacity to decide: O’Connor v. Corner (Royal Ct.), 2021 GLR N [1]

rebuttable presumption that domicile of choice continues—abandoned by ceasing residence with no intention of permanently returning—proof of abandonment to be on balance of probabilities: In re Ackrill (Royal Ct.), 2000–02 GLR 207

testator (when diagnosed with terminal illness) re-acquired domicile of choice in Guernsey by purchasing property in Island suited to his needs; arranging transfer of medical care; and expressing intention to end days in Island—significant that aware of testamentary freedom in Guernsey compared with Jersey—declaration of Guernsey domicile in will not determinative: Cooney v. AFR Executors (Guernsey) Ltd. (Royal Ct.), 2016 GLR 18

domicile of origin

child’s domicile of origin determines status of legitimacy—takes parents’ domicile if both domiciled in same jurisdiction: A Father v. H.M. Greffier (Royal Ct.), 2015 GLR 22

rebuttable presumption that domicile of origin continues—abandoned by ceasing residence with no intention of permanently returning—proof of abandonment to be beyond reasonable doubt: In re Ackrill (Royal Ct.), 2000–02 GLR 207

Double actionability. See Tort—double actionability

Enforcement of foreign penal law. See Application of foreign law—foreign penal law

Evidence

admissibility

Guernsey law as lex fori governs admissibility of evidence in Guernsey proceedings—position under lex causae irrelevant: In re Brownstone Ins. (Guernsey) Ltd. (Royal Ct.), 2003–04 GLR N [33]

letter of request. See EVIDENCE (Assistance from foreign court—letter of request)

Exclusive jurisdiction clauses. See Jurisdiction—exclusive jurisdiction clauses. INJUNCTIONS (Anti-suit injunction—factors to be considered)

Foreign-appointed liquidator. See Recognition of foreign proceedings—foreign liquidator

Foreign-appointed receiver. See Recognition of foreign proceedings—appointment of receiver

Foreign matrimonial proceedings. See Trusts—foreign matrimonial proceedings

Foreign proceedings. See Parallel foreign proceedings. Recognition of foreign proceedings. INJUNCTIONS (Freezing orders—use for foreign proceedings)

Foreign public law. See Application of foreign law—foreign public law

Foreign revenue law. See Application of foreign law—foreign revenue law

Foreign tort law. See Application of foreign law—foreign tort law

Forum conveniens. See Jurisdiction—forum conveniens

Fragmentation of claims. See Parallel foreign proceedings—fragmentation of claims

Freezing order in aid of foreign proceedings. See INJUNCTIONS (Freezing orders—use for foreign proceedings)

Jurisdiction

asymmetric jurisdiction clauses

Guernsey looks to English common law for authority on jurisdiction clauses—asymmetric jurisdiction clause, whereby defendants limited to commencing proceedings in Guernsey but plaintiff can commence proceedings in other jurisdictions, valid and enforceable: Talos Invs. Ltd. v. Banoncia Holding Ltd. (Royal Ct.), 2022 GLR 12

exclusive jurisdiction clauses

absence of word “exclusive” in jurisdiction clause not dispositive of issue whether exclusive, but clear words required to exclude party from suing in otherwise competent jurisdiction: Winnetka Trading Corp. v. Bank Julius Baer & Co. Ltd. (C.A.), 2009–10 GLR 260

anti-suit injunction against foreign proceedings. See INJUNCTIONS (Anti-suit injunction)

anti-suit injunction normally granted to restrain proceedings brought in breach of exclusive jurisdiction clause, unless strong reason not to do so: Ashton v. Ansol Ltd. (Royal Ct.), 2000–02 GLR N [21]

clause exclusively in favour of foreign jurisdiction may be displaced if clearly and distinctly preferable to try all issues in Guernsey, e.g. because in public interest, avoids unnecessary delay and expense, cause primarily contains seriously triable issues of Guernsey law and business practice, and Guernsey only jurisdiction able to hear all claims—presumption that claims not to be fragmented unless necessary: Carlyle Capital Corp. Ltd. v. Conway (C.A.), 2011–12 GLR 562

clause in favour of foreign jurisdiction may be displaced by grant of “anti-anti-suit” injunction against operation if clause invalidly purports to exclude liability contrary to Companies (Guernsey) Law 1994, s.67F, and denies party’s right of appeal in Guernsey in relation to statutory insolvency proceedings: Carlyle Capital Corp. Ltd. v. Conway (Royal Ct.), 2011–12 GLR 371

clause in favour of foreign jurisdiction may be displaced if Guernsey clearly and distinctly more appropriate forum, or only available jurisdiction to hear all claims between parties: Carlyle Capital Corp. Ltd. v. Conway (Royal Ct.), 2011–12 GLR 371

court has jurisdiction to grant “anti-anti-suit” injunction against operation of exclusive jurisdiction clause in favour of foreign jurisdiction if strong reasons to do so, e.g. aiding effective administration of justice, avoiding manifest injustice and duplication or fragmentation of litigation, and protecting Guernsey proceedings: Carlyle Capital Corp. Ltd. v. Conway (Royal Ct.), 2011–12 GLR 371

exclusive jurisdiction clause in favour of foreign jurisdiction may not be incorporated if invalidly purports to exclude liability contrary to Companies (Guernsey) Law 1994, s.67F, and denies party’s right of appeal in Guernsey in relation to statutory insolvency proceedings: Carlyle Capital Corp. Ltd. v. Conway (Royal Ct.), 2011–12 GLR 371

exclusive jurisdiction may be conferred without actual use of word “exclusive” by giving ordinary meaning to “jurisdiction” in context in which “non-exclusive jurisdiction” also used—“strong reasons” needed for departing from apparently valid exclusive jurisdiction clause: Bank Julius Baer & Co. Ltd. v. Winnetka Trading Corp. (Royal Ct.), 2007–08 GLR N [29]

Guernsey court has jurisdiction to displace exclusive jurisdiction clause in favour of foreign court if strong reasons—Guernsey court to consider (a) financial or other inconvenience caused to third parties; (b) effect upon administration of justice; and (c) whether appropriate public policy considerations discernible: Carlyle Capital Corp. Ltd. v. Conway (Royal Ct.), 2011–12 GLR 371

if foreign court has exclusive jurisdiction and party delays proceeding in foreign court, may be refused stay in Guernsey to await decision of foreign court: Ladbrokes PLC v. Galaxy Intl. Ltd. (Royal Ct.), 2007–08 GLR 101

in determining whether to displace exclusive jurisdiction clause, court to consider, inter alia, effect upon administration of justice—may be displaced if invalidly incorporated contrary to Companies (Guernsey) Law 1994, s.67F (because excludes directors’ liability for mismanagement of company), and denies right of appeal in Guernsey in relation to statutory insolvency proceedings: Carlyle Capital Corp. Ltd. v. Conway (Royal Ct.), 2011–12 GLR 371

in determining whether to displace exclusive jurisdiction clause, court to consider, inter alia, financial or other inconvenience caused to third parties—not necessary to consider inconvenience caused to contracting parties, since direct consequence of entering into contract: Carlyle Capital Corp. Ltd. v. Conway (Royal Ct.), 2011–12 GLR 371

in determining whether to displace exclusive jurisdiction clause, court to consider, inter alia, public policy issues, e.g. whether clause interferes with Guernsey statutory insolvency proceedings, whether displacement enables canalization of claims into single forum and whether enforcing exclusive jurisdiction clause causes duplicate proceedings: Carlyle Capital Corp. Ltd. v. Conway (Royal Ct.), 2011–12 GLR 371

may be overridden by anti-suit injunction if strong reasons to do so—Guernsey’s being forum conveniens not itself sufficiently strong, but strong reasons if also only jurisdiction able to hear all claims, in public interest, and Guernsey court fulfilling duty to protect its legitimately conferred jurisdiction, e.g. to hear application for removal of directors and recovery of substantial damages under Companies (Guernsey) Law 1994, ss. 67A–67D and 106: Carlyle Capital Corp. Ltd. v. Conway (C.A.), 2011–12 GLR 638

notwithstanding clause exclusively in favour of foreign jurisdiction, stay of proceedings in Guernsey on ground of forum non conveniens may be declined if matter involves interests of parties other than those bound by clause, or, since desirable to avoid parallel foreign proceedings and inconsistent decisions, if grounds of claim not subject of clause part of relevant dispute: Carlyle Capital Corp. Ltd. v. Conway (C.A.), 2011–12 GLR 562

parties prima facie bound by contractual agreement on exclusive jurisdiction clause, but may depart from it in favour of foreign jurisdiction if strong reasons, including aiding effective administration of justice, avoiding manifest injustice, avoiding duplication or fragmentation of litigation, and protection of Guernsey proceedings: Carlyle Capital Corp. Ltd. v. Conway (Royal Ct.), 2011–12 GLR 371

trial as preliminary issue—court has jurisdiction under lex fori to determine whether exclusive jurisdiction clause validly incorporated in contract, without deciding upon meaning and scope of clause: Bank Julius Baer & Co. Ltd. v. Winnetka Trading Corp. (Royal Ct.), 2007–08 GLR N [29]

when deciding whether exclusive, court to construe in accordance with natural meaning and considering circumstances in which contract made—test whether clause requires party to “submit to jurisdiction” (i.e. intransitive meaning), indicating non-exclusivity, or requires parties to “submit all disputes” to jurisdiction (i.e. transitive meaning)—ambiguity as to “submit” to be construed contra proferentem: Winnetka Trading Corp. v. Bank Julius Baer & Co. Ltd. (C.A.), 2009–10 GLR 260

forum conveniens

anti-suit injunction may not be granted if foreign jurisdiction forum conveniens, e.g. if relevant business between parties carried out there, documents held there, more convenient for witnesses and saves money: Winnetka Trading Corp. v. Bank Julius Baer & Co. Ltd. (C.A.), 2009–10 GLR 260

applicant to show Guernsey clearly or distinctly appropriate forum for trial—may do so by showing respondent on whom service to be effected is necessary or proper party to application—deemed necessary or proper, e.g. if directly affected by substantive issue, and involvement required by remedy sought—respondent may be necessary or proper party even if not directly involved in dispute in substantive proceedings, e.g. if beneficial owner of company which is party to contract under dispute: Cobra Business Ventures Ltd. v. Green Field Capital Ltd. (Royal Ct.), 2011–12 GLR N [27]

applicant to show Guernsey clearly or distinctly appropriate forum for trial—may do so in one of four ways—(i) application in respect of contract governed by Guernsey law; (ii) application concerns claim arising under Guernsey statute; (iii) applicant seeking to prevent commission of certain acts in Guenrsey; and (iv) overseas respondents necessary or proper parties to application: Cobra Business Ventures Ltd. v. Green Field Capital Ltd. (Royal Ct.), 2011–12 GLR N [27]

burden of proof—defendant disputing jurisdiction to show prima facie that Guernsey not appropriate forum and alternative forum clearly more appropriate—burden then on plaintiff to present cogent evidence that proceedings should not be stayed, as will not obtain justice in alternative forum: Shamurin v. Base Metal Trading Ltd. (Royal Ct.), 2000–02 GLR 176

clause exclusively in favour of foreign jurisdiction may be displaced if Guernsey clearly and distinctly forum conveniens, e.g. because in public interest, avoids unnecessary delay and expense, and cause primarily contains seriously triable issues of Guernsey law and business practice, and Guernsey only jurisdiction able to hear all claims—presumption that claims not to be fragmented unless necessary: Carlyle Capital Corp. Ltd. v. Conway (C.A.), 2011–12 GLR 562

enforceability of Guernsey guarantees subject of purported assignment governed by English law and subject to jurisdiction of English courts may in circumstances be issue of Guernsey law justiciable in Guernsey court: KWL Advertising Ltd. v. Kountouris (Royal Ct.), 2005–06 GLR N [34]

Guernsey clearly and distinctly appropriate forum for trial of claim brought by BVI company in respect of loan to Cypriot company guaranteed by Russian national resident in Switzerland—plaintiff had Guernsey directors and administered in Guernsey, loan and guarantee agreements governed by Guernsey law and Guernsey courts had exclusive jurisdiction: Talos Invs. Ltd. v. Banoncia Holding Ltd. (Royal Ct.), 2022 GLR 12

Guernsey court has jurisdiction to grant “anti-anti-suit” injunction against operation of exclusive jurisdiction clause in favour of foreign jurisdiction if Guernsey clearly and distinctly more appropriate forum or only forum in which all claims between parties may be heard: Carlyle Capital Corp. Ltd. v. Conway (Royal Ct.), 2011–12 GLR 371

Guernsey’s being forum conveniens not itself sufficiently strong reason to grant anti-suit injunction against operation of exclusive jurisdiction clause in favour of foreign jurisdiction—may be sufficiently strong if not only forum conveniens, but also only jurisdiction able to hear all claims: Carlyle Capital Corp. Ltd. v. Conway (C.A.), 2011–12 GLR 638

in determining forum non conveniens dispute, court not to undertake review of nature of case: Carlyle Capital Corp v. Conway (C.A.), 2011–12 GLR 562

Ireland forum conveniens for action against Guernsey defendants to recover debt arising from occupation of Irish hotel—majority of witnesses in Ireland, contract likely governed by Irish law and matters to be investigated more easily done by Irish court: Fir Trading Ltd. v. McKenzie (Royal Ct.), 1997–99 GLR N [4]

plaintiff to show Guernsey clearly more appropriate forum for trial—Royal Court appropriate forum to determine Guernsey plaintiff’s action against English defendant for damages for personal injuries sustained following skiing action in Austria—all evidence relating to damage resulting from accident to be found in Guernsey: Singleton v. Zetshock (Royal Ct.), 1997–99 GLR 10

Royal Court appropriate forum for consenting under Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Law 1999 to transfer of funds from unofficially frozen account of foreign company, when account governed by Guernsey law, held at registered Guernsey bank and Financial Intelligence Service (based in Guernsey) fails to consent to transfer: Fidelity Management Ltd. v. Royal Bank of Canada (C.I.) Ltd. (Royal Ct.), 2007–08 GLR N [14]

rules of forum conveniens modify principle of universalism in cross-border insolvency proceedings—may allow recognized foreign liquidator to contest existing interpleader proceedings, if proceedings already well advanced, assets in Guernsey bank and convenient to litigate—no stay to allow starting new similar proceedings in form of liquidation (jurisdiction of company’s incorporation): EFG Private Bank (C.I.) Ltd. v. B.C. Capital Group S.A. (Royal Ct.), 2013 GLR 354

stay of action by beneficiary on ground of forum non conveniens only if another available and competent forum more appropriate, i.e. more suitable in interests of all parties and ends of justice—governing law of transaction, need for foreign lawyers and witnesses, relative speed of decision in competing jurisdictions may be significant factors—interests of parties in trusts decision include interests of Guernsey trustee wishing to proceed with effective administration: In re A & MC Trust (Royal Ct.), 2007–08 GLR N [8]

stay of proceedings on ground of forum non conveniens

factors to be considered, inter alia: whether action brought as of right in Guernsey, distinctive features of legal system, when foreign action commenced, whether Guernsey courts able to deal with complex, unfamiliar issues, availability of witnesses to travel, whether easier to enforce Guernsey judgment and whether any issues within exclusive jurisdiction of foreign court: Healthspan Ltd. v. Healthy Direct Ltd. (Royal Ct.), 2003–04 GLR 193

only granted if court satisfied other forum of competent jurisdiction more appropriate, i.e., in which case could be tried more suitably in interests of all parties and justice—Guernsey resident defendants failed to establish that South Africa or Cyprus alternative forums for trial of plaintiff’s claim for, inter alia, breach of fiduciary duty: Fardelle Holdings Ltd. v. Endres (Royal Ct.), 2021 GLR 350

only granted if court satisfied that different forum of competent jurisdiction more appropriate, i.e. in which case could be tried more suitably in interests of all parties and justice—respondent to show stay to be granted, but respective parties to demonstrate existence of matters to assist their case—if foreign forum prima facie forum conveniens, applicant to show special circumstances for hearing trial in Guernsey: Carlyle Capital Corp. Ltd. v. Conway (C.A.), 2011–12 GLR 562

only if defendant shows another jurisdiction clearly and distinctly more appropriate than Guernsey—Guernsey courts competent to deal with unfamiliar issues if careful preparation and co-operation by advocates—action as of right in Guernsey (e.g. by Guernsey company), and foreign proceedings after and as result of Guernsey litigation strongly weigh against stay: Healthspan Ltd. v. Healthy Direct Ltd. (Royal Ct.), 2003–04 GLR 193

incorporation of jurisdiction clauses

court absolved from forming final view as to whether incorporated if no “live” witness evidence, but may make preliminary decision on matter by reference to Guernsey law as lex fori —once lex causae established, to be used to make definitive assessment of incorporation: Winnetka Trading Corp. v. Bank Julius Baer & Co. Ltd. (C.A.), 2009–10 GLR 260

party claiming jurisdiction clause incorporated to establish incorporation—other party may then displace conclusion—stronger reasons required to displace exclusive jurisdiction clause than non-exclusive: Winnetka Trading Corp. v. Bank Julius Baer & Co. Ltd. (C.A.), 2009–10 GLR 260

jurisdiction of Guernsey court. See Parallel foreign proceedings—jurisdiction of Guernsey court. COURTS (Royal Court—jurisdiction)

jurisdiction of UK courts over Guernsey legislation

English courts have jurisdiction to entertain challenge to Sark legislation for incompatibility with European Convention on Human Rights since UK government responsible for Guernsey’s international relations—limitations on and undesirability of English courts exercising jurisdiction when Guernsey courts have stronger claim under similar human rights legislation: R. (Barclay) v. Justice Secy. (No. 2) (UK Supreme Ct.), 2014 GLR 201

English courts have jurisdiction to entertain challenge to Sark legislation for potential incompatibility with European Convention if Order in Council recommending Royal Assent made in right of both Guernsey and UK—may nonetheless be undesirable for English courts to exercise jurisdiction over challenge to Bailiwick legislation if satisfactory local procedures available: R. (Barclay) v. Justice Secy. (No. 2) (UK Supreme Ct.), 2014 GLR 201

non-exclusive jurisdiction clauses

anti-suit injunction. See Jurisdiction—exclusive jurisdiction clauses

when deciding whether exclusive, court to construe words used in accordance with natural meaning and considering circumstances in which contract made—test is whether clause requires party to “submit to jurisdiction” (i.e. intransitive meaning), indicating non-exclusivity, or requires parties to “submit all disputes” to jurisdiction (i.e. transitive meaning)—ambiguity as to “submit” to be construed contra proferentem: Winnetka Trading Corp. v. Bank Julius Baer & Co. Ltd. (C.A.), 2009–10 GLR 260

parallel foreign proceedings. See Parallel foreign proceedings

personal jurisdiction

if both Royal Court and Court of Alderney have jurisdiction and defendant makes no challenge, deemed to submit to jurisdiction of plaintiff’s choice of court when leave to proceed obtained: Mateus v. Walters (Royal Ct.), 2009–10 GLR N [13]

Royal Court has jurisdiction over Sark litigation if parties submit to Guernsey jurisdiction by giving address for service in Guernsey—applicable even though dispute concerns procedure for passing Sark conveyance in Seneschal’s Court: Barclay v. Beaumont (Royal Ct.), 2007–08 GLR N [17]

scope of jurisdiction clause

jurisdiction clause in contract also applies to claims in tort arising from same facts, involving same parties and alleged breach of duty of care arises from contractual agreement—presumption that clause applies to all disputes connected with contract and arising between parties to it: Winnetka Trading Corp. v. Bank Julius Baer & Co. Ltd. (C.A.), 2009–10 GLR 260

stay of proceedings

Guernsey court has jurisdiction as of right over Guernsey company—plaintiff need not argue, at interlocutory stage, that Guernsey clearly most appropriate forum—only need to demonstrate good arguable case against Guernsey company and other necessary and proper parties to proceedings: Vardinoyannis v. Ansol Ltd. (Royal Ct.), 2000–02 GLR 221

submission to jurisdiction

applicant submits to Grand Court’s jurisdiction to order costs if applies to court and responds to objections, even if primary litigation unconnected with Guernsey—court may order costs even if applicant has no funds in Guernsey: Universal Trading & Inv. Co. Inc. v. Bassington Ltd. (Royal Ct.), 2014 GLR N [12]

jurisdiction clauses. See Jurisdiction—exclusive jurisdiction clauses. Jurisdiction—non-exclusive jurisdiction clauses

Legitimacy. See Children—legitimacy

Letter of request. See EVIDENCE (Assistance from foreign court—letter of request)

Lex causae. See Civil procedure—commencement of proceedings. Evidence—admissibility. Jurisdiction—incorporation of jurisdiction clauses. Prescription—running of time

Lex fori. See Civil procedure—commencement of proceedings. Evidence—admissibility. Jurisdiction—incorporation of jurisdiction clauses. Prescription—running of time. Trusts—limitation of trustees’ liability

Modified universalism. See Assistance to foreign court—inherent jurisdiction of Guernsey court. Cross-border insolvency—inherent jurisdiction of Guernsey court

Parallel foreign proceedings

costs. See CIVIL PROCEDURE (Costs—discretion of court)

fragmentation of claims

presumption that claims not to be fragmented unless necessary—clause exclusively in favour of foreign jurisdiction may be displaced if Guernsey clearly and distinctly forum conveniens, e.g. because in public interest, avoids unnecessary delay and expense, and cause primarily contains seriously triable issues of Guernsey law and business practice, and Guernsey only jurisdiction able to hear all claims: Carlyle Capital Corp. Ltd. v. Conway (C.A.), 2011–12 GLR 562

information released for parallel foreign proceedings

court welfare report not to be released for foreign proceedings without agreement of parties to Guernsey proceedings—contains sensitive and confidential information—welfare services may respond to foreign court’s requests for information, if Guernsey material relevant to child’s best interests—co-operation will not ordered: In re C (Royal Ct.), 2000–02 GLR 503

jurisdiction of Guernsey court

anti-suit injunction available to restrain foreign proceedings following final judgment on same matter in Guernsey court if Guernsey forum conveniens and foreign action oppressive, vexatious or unconscionable, or outcome of Guernsey proceedings requires protection: Credit Suisse Trust Ltd. v. Nemni (Royal Ct.), 2011–12 GLR N [23]

Guernsey court has jurisdiction over freezing order made in Guernsey over Guernsey assets even though substantive action to recover misappropriated funds in English High Court: Messenger Ins. PCC Ltd. v. Cable & Wireless PLC (Royal Ct.), 2005–06 GLR 206

Guernsey court has jurisdiction to grant “anti-anti-suit” injunction against operation of exclusive jurisdiction clause in favour of foreign jurisdiction if strong reasons to do so, e.g. aiding effective administration of justice, avoiding manifest injustice, avoiding duplication or fragmentation of litigation, and protection of Guernsey proceedings: Carlyle Capital Corp. Ltd. v. Conway (Royal Ct.), 2011–12 GLR 371

has jurisdiction to grant “anti-anti-suit” injunction against foreign proceedings in spite of exclusive jurisdiction clause in favour of foreign jurisdiction, e.g. if Guernsey not only forum conveniens but only jurisdiction able to hear all claims, in public interest, foreign proceedings vexatious or oppressive, and Guernsey court fulfilling duty to protect its legitimately conferred jurisdiction, e.g. to hear application for removal of directors and recovery of substantial damages under Companies (Guernsey) Law 1994, ss. 67A–67D and 106: Carlyle Capital Corp. Ltd. v. Conway (C.A.), 2011–12 GLR 638

notwithstanding dispute in foreign jurisdiction concerning validity of disposal of foreign trust assets, under Trusts (Guernsey) Law 2007, ss. 3 and 4, Royal Court has jurisdiction over trust if governed by Guernsey law, trust assets in Guernsey and Guernsey-resident trustee—may make declarations concerning validity of appointment of trustees, holding of trust assets and disposal of foreign assets: Rothschild Trust Guernsey Ltd. v. Pateras (Royal Ct.), 2011–12 GLR 239

stay of proceedings on ground of forum non conveniens only granted if court satisfied that different forum of competent jurisdiction more appropriate, i.e. in which case could be tried more suitably in interests of all parties and justice—respondent to show stay to be granted, but respective parties to demonstrate existence of matters to assist their case—if foreign forum prima facie forum conveniens, applicant to show special circumstances for hearing trial in Guernsey Carlyle Capital Corp. Ltd. v. Conway (C.A.), 2011–12 GLR 562

res judicata

broad principles of not wasting time and money preclude re-trial of same issue in different court, whether Guernsey court or elsewhere—not necessary to rely on technical doctrines of issue estoppel or res judicata: Ladbrokes PLC v. Galaxy Intl. Ltd. (Royal Ct.), 2007–08 GLR 101

restraint of foreign proceedings

anti-suit injunction available to require withdrawal of foreign proceedings commenced in breach of clause giving exclusive jurisdiction to Guernsey court: Bank Julius Baer & Co. Ltd. v. Winnetka Trading Corp. (Royal Ct.), 2007–08 GLR N [29]

anti-suit injunction granted if required by ends of justice and party restrained within court’s personal jurisdiction, so injunction is effective remedy against him—required by ends of justice if Guernsey natural forum and foreign proceedings vexatious or oppressive: Ashton v. Ansol Ltd. (Royal Ct.), 2000–02 GLR N [21]

Guernsey court may grant “anti-anti-suit” injunction restraining foreign proceedings despite exclusive jurisdiction clause in favour of foreign jurisdiction if strong reasons to do so, e.g. aiding effective administration of justice, avoiding manifest injustice, avoiding duplication or fragmentation of litigation, and protection of Guernsey proceedings: Carlyle Capital Corp. Ltd. v. Conway (Royal Ct.), 2011–12 GLR 371

when considering granting anti-suit injunction against foreign proceedings, court to consider comity and how foreign court perceives interference: Winnetka Trading Corp. v. Bank Julius Baer & Co. Ltd. (C.A.), 2009–10 GLR 260

stay of Guernsey proceedings

delay in bringing action in England under exclusive jurisdiction clause may result in refusal to stay parallel Guernsey proceedings to await English result—refusal more likely if same issue already decided in Guernsey proceedings after full argument: Ladbrokes PLC v. Galaxy Intl. Ltd. (Royal Ct.), 2007–08 GLR 101

in giving active assistance to recognized foreign liquidator, no automatic stay of existing Guernsey interpleader proceedings—court has discretion how to give assistance—may continue interpleader proceedings to allow determination of ownership of assets disputed in foreign liquidation: EFG Private Bank (C.I.) Ltd. v. B.C. Capital Group S.A. (Royal Ct.), 2013 GLR 354

notwithstanding clause exclusively in favour of foreign jurisdiction, stay of proceedings in Guernsey on ground of forum non conveniens declined if matter involves interests of parties other than those bound by clause, or, since desirable to avoid parallel foreign proceedings and inconsistent decisions, if grounds of claim not subject of clause part of relevant dispute: Carlyle Capital Corp. Ltd. v. Conway (C.A.), 2011–12 GLR 562

stay of proceedings on ground of forum non conveniens

factors to be considered, inter alia: whether action brought as of right in Guernsey, distinctive features of legal system, when foreign action commenced, whether Guernsey courts able to deal with complex, unfamiliar issues, availability of witnesses to travel, whether easier to enforce Guernsey judgment, and whether any issues within exclusive jurisdiction of foreign court: Healthspan Ltd. v. Healthy Direct Ltd. (Royal Ct.), 2003–04 GLR 193

only granted if court satisfied that different forum of competent jurisdiction more appropriate, i.e. in which case could be tried more suitably in interests of all parties and justice—respondent to show stay to be granted, but respective parties to demonstrate existence of matters to assist their case—if foreign forum prima facie forum conveniens, applicant to show special circumstances for hearing in Guernsey: Carlyle Capital Corp. Ltd. v. Conway (C.A.), 2011–12 GLR 562

stay by beneficiary only if another available and competent forum more appropriate, i.e. more suitable in interests of all parties and ends of justice—governing law of transaction, need for foreign lawyers and witnesses, relative speed of decision in competing jurisdictions may be significant factors—interests of parties in trusts decision include interests of Guernsey trustee wishing to proceed with effective administration: In re A & MC Trust (Royal Ct.), 2007–08 GLR N [8]

withdrawal of foreign proceedings

Penal law. See Application of foreign law—foreign penal law

Prescription

running of time

if foreign lex causae governs structure of bringing and suspension of proceedings, also lays down prescription periods—within that framework, details of bringing and suspension of proceedings laid down by Guernsey law as lex fori: Braun v. Brantridge Estates Ltd. (Royal Ct.), 2009–10 GLR 252

suspension of proceedings. See Prescription—running of time

Proof of foreign law. See EVIDENCE (Proof of foreign law)

Proper law of restitutionary obligation. See Restitution—unjust enrichment from breakdown of contract

Proper law of share transfer. See Companies—share transfer

Proper law of trust. See Trusts—legislative control in Guernsey. Trusts—preliminary acts creating trust

Reciprocal enforcement of judgments and orders

enforcement of non-registrable judgments. See Reciprocal enforcement of judgments and orders—registration of foreign judgments

registration of foreign judgments

court to be mindful of Guernsey’s important financial industry and developing commercial law to provide just solutions to complex issues—if conflicting case-law, to follow most common sense: Manches LLP v. Inter Global Fin. Ltd. (Royal Ct.), 2009–10 GLR 283

English county court judgment not registrable under Judgments (Reciprocal Enforcement) (Guernsey) Law 1957 but enforceable as debts in summary judgment proceedings: Carroll v. Highseal Windows Ltd. (C.A.), 2000–02 GLR 278

English county court judgment transferred to High Court for execution in Guernsey registrable under Judgments (Reciprocal Enforcements) (Guernsey) Law 1957, as judgment of “superior court”: Manches LLP v. Inter Global Fin. Ltd. (Royal Ct.), 2009–10 GLR 283

Recognition of foreign guardian. See MENTAL HEALTH (Curateur—recognition of foreign guardian)

Recognition of foreign proceedings

appointment of receiver

appointment under foreign penal law may be recognized if no exercise of foreign sovereign power for state’s benefit, e.g. if recognition to enable compensation of defrauded investors and little chance that foreign state benefits: Terry v. Butterfield Bank (Guernsey) Ltd. (Royal Ct.), 2005–06 GLR 327

court may recognize receiver appointed by foreign court if sufficient connection between company and jurisdiction where appointed—(a) jurisdiction of company’s incorporation; (b) submission to jurisdiction of foreign court; (c) recognition of appointment by courts of jurisdiction of incorporation; (d) appointment by court of jurisdiction in which central management and control of company exercised; or (e) appointment by court of country where company carries on business (not necessarily exclusively): In re Battoo (C.A.), 2014 GLR 86

Royal Court may recognize appointment of foreign receiver for company in liquidation if sufficient connection between company and jurisdiction where appointed, e.g. where central management and control of company and business transactions carried on—case for recognition stronger if courts in country of incorporation would recognize and not intervene in appointment: Terry v. Butterfield Bank (Guernsey) Ltd. (Royal Ct.), 2005–06 GLR 327

enforcement of judgment debt. See Recognition of foreign proceedings—judgment in personam

finality of proceedings

no justification for Guernsey court to refuse recognition to foreign judgment merely because unsuccessful party had failed to pursue all appeal opportunities: Williams v. Williams (Royal Ct.), 2003–04 GLR 237

foreign liquidator

under principle of universalism in cross-border insolvencies, recognition of foreign liquidator creates duty to give active assistance—discretion as to form of assistance—may allow liquidator to contest interpleader proceedings in Guernsey to decide ownership of disputed assets: EFG Private Bank (C.I.) Ltd. v. B.C. Capital Group S.A. (Royal Ct.), 2013 GLR 354

foreign trustee in bankruptcy

English joint trustees in bankruptcy recognized in Guernsey—as debtor’s Guernsey assets already arrested and sold by H.M. Sheriff in Guernsey désastre proceedings, proceeds no longer part of debtor’s estate—trustees in bankruptcy not entitled to them: In re Douglass (Royal Ct.), 2017 GLR 234

gender reassignment order

Guernsey court to recognize rights under European Convention, art. 8 of Guernsey-born person with reassigned gender, holding full gender recognition certificate issued under UK Gender Recognition Act 2004—permits rectification of Guernsey Register of Births to show new gender and names: In re X (Royal Ct.), 2007–08 GLR 161

judgment in personam

Guernsey court to recognize foreign judgment in personam given by competent court, as conclusive of matters decided between parties to it—full and frank disclosure to foreign court desirable for recognition of judgment—non-disclosure, especially if hearing ex parte, not necessarily fatal to recognition but to be weighed to see how far affected foreign court’s judgment—fraud precludes recognition: Williams v. Williams (Royal Ct.), 2003–04 GLR 237

judgment tainted by fraud

foreign judgment tainted by fraud or other vitiating factor not to be recognized in Guernsey—full and frank disclosure to foreign court desirable for recognition of judgment—non-disclosure, especially if hearing ex parte, not necessarily fatal to recognition but to be weighed to see how far affected foreign court’s judgment: Williams v. Williams (Royal Ct.), 2003–04 GLR 237

registration of foreign judgments

law to provide just solutions to complex issues—if conflicting case-law, to follow most common sense—may also have regard to relevant English legislation: Manches LLP v. Inter Global Fin. Ltd. (Royal Ct.), 2009–10 GLR 283

Recognition of Guernsey proceedings. See Comity—recognition of Guernsey judgment

Registration of foreign judgments. See Reciprocal enforcement of judgments and orders—registration of foreign judgments. Recognition of foreign proceedings—registration of foreign judgments

Restitution

unjust enrichment from breakdown of contract

proper law of restitutionary obligation likely to be same as proper law of contract following breakdown of contract—assumed that parties selecting proper law for contract would envisage same law applying to consequences of failure of contract: Dervan v. Concept Fiduciaries Ltd. (Royal Ct.), 2013 GLR 1

Restraint of foreign proceedings. See Parallel foreign proceedings—restraint of foreign proceedings

Service out of jurisdiction. See CIVIL PROCEDURE (Service out of jurisdiction), (Service out of jurisdiction—substituted service under foreign law)

Stay of Guernsey proceedings. See Parallel foreign proceedings—stay of Guernsey proceedings

Submission to jurisdiction. See Jurisdiction—exclusive jurisdiction clauses. Jurisdiction—non-exclusive jurisdiction clauses. Jurisdiction—personal jurisdiction. Jurisdiction—submission to jurisdiction

Tort

application of foreign law. See Application of foreign law—foreign tort law

double actionability

action for tort committed overseas requires double actionability before domestic claim can succeed, i.e. civil remedy both at home and overseas—action overseas need not be in same form as domestic claim—in absence of proof to contrary, foreign law assumed to be same as domestic law: Vardinoyannis v. Ansol Ltd. (Royal Ct.), 2000–02 GLR 221

Trusts

foreign matrimonial proceedings

not generally in interests of beneficiaries for trustee to submit to foreign court in matrimonial proceedings of beneficiaries: In re A Ltd. FURBS (Royal Ct.), 2017 GLR N [7]

trustee of funded unapproved retirement benefits scheme joined to matrimonial proceedings by English High Court authorized to submit to jurisdiction of English court—desirable to explain terms on which assets held: In re A Ltd. FURBS (Royal Ct.), 2017 GLR N [7]

forum conveniens. See Jurisdiction—forum conveniens

legislative control in Guernsey

Trusts (Guernsey) Law 2007, s.65 (dealing with proper law of foreign trust) is only conflicts provision in statute—determination of other conflicts questions affecting trust liabilities to be determined by general conflicts rules: Investec Trust (Guernsey) Ltd. v. Glenalla Properties Ltd. (C.A.), 2014 GLR 121

limitation of trustees’ liability

procedural limitation imposed by foreign law only applicable to foreign trust in Guernsey if permitted by lex fori: Investec Trust (Guernsey) Ltd. v. Glenalla Properties Ltd. (C.A.), 2014 GLR 121

provision in foreign trust applicable under law of place of creation limiting scope of claim by third party against trustees acceptable in principle in Guernsey since comparable provision for Guernsey trusts in Trusts (Guernsey) Law 2007, s.42: Investec Trust (Guernsey) Ltd. v. Glenalla Properties Ltd. (C.A.), 2014 GLR 121

substantive limitation imposed by law of place of creation of trust applicable to foreign trust in Guernsey—exclusion of trustees’ personal liability to third party beyond assets of trust is enforceable limitation if trustees known by third party to contract as trustees: Investec Trust (Guernsey) Ltd. v. Glenalla Properties Ltd. (C.A.), 2014 GLR 121

preliminary acts creating trust

law governing validity of preliminary acts “launching” trust distinguished from law governing validity of trust itself—by art. 4, Recognition of Trusts Convention 1985, inapplicable to determining validity of preliminary acts: Dervan v. Concept Fiduciaries Ltd. (Royal Ct.), 2013 GLR 1

proper law governing validity of preliminary acts assigning assets to trust, e.g. whether mistake by settlor, depends on nature of assignment—assignment of shares governed by proper law of company, assignment of funds governed either by lex situs or by proper law of trust for which funds intended—Recognition of Trusts Convention 1985 inapplicable to determining validity of preliminary acts: Dervan v. Concept Fiduciaries Ltd. (Royal Ct.), 2013 GLR 1

Universalism. See Jurisdiction—forum conveniens. Recognition of foreign proceedings—foreign liquidator

Unjust enrichment. See Restitution—unjust enrichment from breakdown of contract

Withdrawal of foreign proceedings. See Parallel foreign proceedings—withdrawal of foreign proceedings