JERSEY: An Introduction to Dispute Resolution
Jersey – Dispute Resolution Overview
Jersey
Jersey is the largest of the Channel Islands, located just 14 miles from France. Having been part of the Duchy of Normandy, from 1066 Jersey became part of the lands held by the English monarch. Jersey jealously guarded its freedoms and independence, and has always had its own separate parliament, courts and taxes. The quirks of its historic ties to France are still evident, however, such as the Lord’s Prayer being read in French at the beginning of each Court day and celebratory toasts being made to ‘notre Duc’, rather than to the King.
As a small attractive island of English-speaking people, in the same time zone as England, when income from tourism, agriculture and fishing proved to be limited, a conscious decision was made in the 1970s to develop Jersey as an offshore financial centre.
Legal and Regulatory System
With that came the need to develop an effective and modern legal and regulatory system. Jersey’s court system is well-regarded for the quality of its judges, and the modernity and flexibility of its legal principles. The centre of the legal system is the Royal Court, which has existed since the 13th century. The chief judge is the Bailiff. All but the most minor civil and criminal trials take place in the Royal Court.
Court decisions can be appealed to the Court of Appeal, which is staffed by former judges or senior lawyers from the British Isles, and former Jersey judges. With permission, it is possible to appeal from the Court of Appeal on important points of law to the Privy Council in London, the ultimate court of appeal for Crown Dependencies.
Jurats
One unusual feature of the Jersey court system is the involvement of jurats, who sit to determine issues of fact in court cases in the Royal Court. There are 12 jurats in office at any time. They are elected by the legal profession and the elected representatives. Jurats are typically not legally qualified and come to the role from a wide range of backgrounds and professions. In most cases, two jurats will sit with a judge as the tribunal. The jurats determine the facts; the judge decides the law and has the casting vote on disputes of fact.
Jersey Advocates
Only qualified Jersey advocates can appear in Jersey courts. All Jersey advocates have worked for at least two years in a Jersey local law firm and passed a series of exams on Jersey law and procedure. Lawyers from other jurisdictions frequently work alongside Jersey advocates, but they have no rights of audience in the courts. For court hearings it is therefore important to select an advocate with experience in Jersey advocacy, and who is familiar with the court and its procedure.
Jersey Law
Jersey continues to ensure that its court system meets the needs of the island’s mature financial services industry. Jersey has put significant resources into maintaining a comprehensive Jersey Law website, which publishes on a near daily basis up to date judgments as well as statutory and procedural developments. Practice Directions and the use of technology (for example in the form of remote attendance to hearings and electronic bundle systems) ensure that modern practices are developed.
Customary Law
Jersey’s legal system has its origins in customary law (derived from old Norman law, predating the French Revolution) but it is heavily influenced in many areas by English law. Modern statutes on criminal law, employment, data protection and security, as well as anti-money laundering regulation, are similar to their English equivalents in many respects. Anyone familiar with English law and legal practice would find much that is familiar in Jersey, but with a few important differences. Contract law, land law, probate and intestacy, as well as bankruptcy procedures, remain markedly different from English provisions.
The Law of Trusts
A very important area of law for Jersey’s financial services industry is the law of trusts. This was firmly based on English law, but as Jersey’s trust industry grew, the Jersey Trusts Law and judgments made by the Royal Court in that area developed with some differences particular to Jersey. Many people from all over the world establish trusts under Jersey law, appointing professional Jersey-based trustees to administer them. Jersey is a prime jurisdiction for establishing trusts because of the mature industry of professional trustees, and the highly respected supervisory jurisdiction and effective dispute resolution provided by the Royal Court. Trusts may be set up for tax or privacy reasons, and/or to provide a mechanism to preserve and distribute family assets.
The Jersey courts are very familiar with dealing with all manner of issues arising from the administration of trusts ranging from the more contentious circumstances, such as claims of breach of trust against trustees or applications to remove trustees, to procedural matters such as how assets are distributed at the end of a trust period. Jersey judgments on trust issues are influential and highly persuasive across the common law world. Stakeholders from industry work closely with Jersey’s parliament to ensure that Jersey’s Trusts Law remains up to date with modern requirements and practices. In recent years, Jersey’s parliament legislated to preserve elements of English trust law that have been removed by judicial decision in England, enabling the swift remedying of errors by trustees or those who had placed assets into trust.
Financial Regulation
Jersey has a modern and comprehensive system of financial regulation. Professional trustees and directors are among the financial professionals who are regulated in respect of anti-money laundering procedures. In recent years both a bank and a trust company have been convicted of failing to have adequate and effective regulations in place to prevent the risk of their services being abused by money launderers, and heavily fined. The regulatory authority, the Jersey Financial Services Commission (JFSC) is well funded and resourced to ensure that the island’s financial services industry complies with the statutory and regulatory frameworks imposed by Jersey’s parliament. Recently, the JFSC gained the power to levy financial penalties, and an increase in prosecutions for money laundering is expected. Owing to Jersey’s maturity in this area, Jersey is an independent and key stakeholder in the development and negotiation of international treaties governing reporting standards and wider regulation. This firm provides advice and representation both to the JFSC and to regulated people to help them negotiate the many and changing regulations.
Recent Developments
Recent developments in the legal profession include an increase in legal work relating to sanctions because of the invasion of Ukraine. Many Russians with assets in trust in Jersey were affected. Lawyers took differing approaches to continuing to work for Russian clients. A general license is now in place permitting lawyers to represent sanctioned clients within certain limits but many Russia-related assets that were under administration in Jersey when the sanctions came in remain effectively frozen by the operation of sanctions.