I INTRODUCTION TO THE DISPUTE RESOLUTION FRAMEWORK

Gibraltar is a British overseas territory and can generally be described as an English common law jurisdiction.

The territory of Gibraltar has its own legislature, known as the Gibraltar parliament, whose powers are governed by the Constitution of Gibraltar 2006 (the Constitution), which empowers it to make laws subject to the Constitution.2 The Constitution, inter alia, enshrines the fundamental rights and freedoms of the individual.3

Section 2(1) of the English Law (Application) Act (the Act) applies the common law and rules of equity to Gibraltar insofar as they are applicable to local circumstances.

Statutory law in Gibraltar mainly comprises laws passed by the Gibraltar parliament, but certain English statutes also apply.4

Gibraltar is part of the European Union through the United Kingdom’s membership on the basis that it is a European territory for whose external affairs the United Kingdom is responsible for. European directives are transcribed into Gibraltar law by local acts of parliament. Pursuant to the European Communities Act5 EU legislation and decisions can have direct effect in Gibraltar.

Civil cases are commenced in the Supreme Court of Gibraltar, whose powers are largely contained in the Supreme Court Act, and importantly, Section 12 of the Act provides that the Supreme Court shall possess and exercise all the jurisdiction, powers and authorities of the High Court of Justice in England.6

The Supreme Court does not have any formal divisions. There are currently four Supreme Court judges – the Chief Justice and three puisne judges – one of whom hears predominantly family cases, one only hears criminal cases and the other two judges hear a wide variety of civil and sometimes criminal cases. English judges sometimes join the Gibraltar bench to hear specific cases.

Appeals from the Supreme Court lie with the Court of Appeal for Gibraltar, whose powers and procedure are governed by the Court of Appeal Act and the Court of Appeal Rules 2004.

The Court of Appeal is composed of recently retired English Court of Appeal judges, some of whom may still sit in the English Court of Appeal on an ad hoc basis. The Court usually sits twice a year, usually in February and September, but may sit on other occasions as required.

Decisions from the Court of Appeal may be appealed to Her Majesty’s Judicial Committee of the Privy Council.7

Court proceedings are the principal method of dispute resolution, even though there are a number of English-qualified mediators in Gibraltar.

The Gibraltar Bar is mainly constituted by English-qualified barristers and solicitors who are then called to the Bar locally. The profession is a fused profession, whereby barristers can additionally act as solicitors and vice versa. It is not infrequent to call English specialist counsel and Queen’s Counsel to the Gibraltar Bar to appear in the Gibraltar courts for specific cases.

II THE YEAR IN REVIEW

Stemming from the implementation of the Companies Act in November 2014, the Court of Appeal overturned a Supreme Court judgment that could have had serious ramifications for thousands of companies. The result of the Court of Appeal decision in Re The Matter of the Companies Act and Tasmania Investments Limited 8 (Tasmania) is that any company that was struck off under the provisions of the Companies Act 1930 looking to be restored to the register should seek to restore the company under the 1930 Act and not the Companies Act 2014.

At first instance, it was held that it was not possible for Tasmania to be restored to the register as it had been struck off under the Companies Act 1930. The Supreme Court found that the restoration provisions of the Companies Act 2014 were constructed in such a manner that it did not permit a company that was struck off the register of companies under Section 267A of the Companies Act 1930 (previously Section 203A prior to the renumbering of the Act in 2004) to be restored under Sections 414 and 415 of the Companies Act 2014. The effect of this judgment left companies struck off under the 1930 Act without a way to restore themselves to the register, as the 2014 Act repealed the 1930 Act except for certain provisions. The Court of Appeal reversed the first instance judgment and held that, by virtue of Section 33(2)(c) of the Interpretation and General Clauses Act 1962, a company struck off under the 1930 Act is entitled to apply for restoration, notwithstanding the repeal of the 1930 Act.9 Additionally, it held that by virtue of Regulation 8 of the Insolvency (Transitional Provisions) Regulations 2014, the provisions under the 1930 Companies Act remained in place, thereby allowing applications to be made in respect of companies struck off under the 1930 Act. The outcome of the decision is that applications for a restoration of companies struck off under the 1930 Act can continue to be made under Part VI of the 1930 Act.

The year 2016 saw the Court of Appeal handing down a judgment that brought Gibraltar directors’ duties into the spotlight. The Court of Appeal upheld the judgment of Jack J in Minette Compson v. The Chief Executive Officer of the Financial Services Commission and Brian Weal v. The Chief Executive Officer of the Financial Services Commission,10 which provided guidance as to what, in practice, is required of persons acting as licensed directors of experienced investor funds (EIFs), as well as the steps such directors ought to take to ensure they are properly discharging their duties. Having carried out a review of the relevant legislation, the Court of Appeal held that, effectively, EIF directors have a higher objective standard of due skill, care and diligence when exercising their directorial functions.

The past year has also seen a number of noteworthy judgments with an international twist. On 13 April 2016, Peabody Energy Corporation filed for Chapter 11 bankruptcy protection in the Bankruptcy Court of the Eastern district of Missouri, USA. This had the effect of staying the enforcement of debts due by the Corporation and its subsidiaries (the Group). One of its subsidiaries is Peabody Holdings (Gibraltar) Limited (Holdings), a company incorporated in Gibraltar whose shares are held by two Delaware companies, also part of the Group and which also filed for Chapter 11 bankruptcy. Holdings applied to the Supreme Court of Gibraltar for recognition of the United States bankruptcy proceedings as the main insolvency proceedings for the purposes of the Insolvencies (Cross Border Insolvencies) Regulations 2014, which is the Gibraltarian legislation giving effect to the UNCITRAL Model Law on cross-border insolvency.11 The key issue to be determined by the court was to establish the location of Holdings’ centre of main interest.

The Court heard evidence that Holdings was incorporated in Gibraltar for fiscal purposes and is properly administered in Gibraltar as required by Gibraltar law. Its head office functions are coordinated and driven strategically from St Louis, Missouri where Peabody Energy Corporation is headquartered, and this is because it forms part of a much larger business headed by the Corporation.12 Mr Justice Jack held that Holdings’ centre of main interest was in St Louis, and directed that the Chapter 11 proceedings be treated as foreign main proceedings.

The Privy Council decision of Vizcaya Partners Limited (Vizcaya) v. Irving Picard (Picard) as Trustee in Bankruptcy of Bernard L Madoff Investment Securities LLC13 is important as it clarified issues relating to the enforcement of foreign judgments. The judgment has international scope and application on an international front as it relates to common law jurisdictions. Importantly, statutes in many jurisdictions adopt the common law position.

The Chief Justice of Gibraltar dismissed Vizcaya’s application, holding that it was arguable that Vizcaya had submitted to the jurisdiction of the New York courts by (1) its presence in New York at the time when proceedings were commenced and (2) its agreement to submit to that jurisdiction. The Court of Appeal of Gibraltar allowed Vizcaya’s appeal in part. It dismissed the trustee’s claim to enforce the default judgment in reliance on Vizcaya’s presence in New York. However, it held that the claim to enforce in reliance on an agreement to submit to the jurisdiction had a reasonable prospect of success.

Of issue in this case before the Privy Council was whether an agreement to submit must be express, or whether it can also be implied. The Privy Council reviewed the relevant authority and found as follows:

  • a an agreement to submit need not be contractual. The real question is whether the judgment debtor consented in advance to the jurisdiction of the foreign court;
  • b agreement or consent can be implied or inferred. There just has to be an actual agreement;
  • c English law implies terms either as a matter of fact (in order to give effect to the intention of the parties – such terms are not implied lightly, hence the need for necessity or business efficacy) or as a matter of law (and are implied into classes of contractual relationship as a necessary incident to that relationship; e.g., the implication of an obligation of confidentiality in arbitration agreements); and
  • d an agreement to submit to the foreign jurisdiction cannot be implied by, for example, the fact the contract was made in the foreign country or governed by the law of that country, or was to be performed there.14

III COURT PROCEDURE

i Overview of court procedure

The English Civil Procedure Rules (CPR) largely govern procedure in the Supreme Court. The CPR apply by default when there are no local rules and are also displaced when specific rules formerly in force in England are retained in Gibraltar.15

The main areas of difference with English practice and procedure are in relation to winding-up proceedings, bankruptcy and family cases.16 Service of documents within the jurisdiction is also covered by local rules.17

Civil cases may be commenced by the lodging of a claim form in the Supreme Court Registry pursuant to the CPR, winding-up petition or divorce petition.

Cases that are fully pleaded and proceed to a full trial may take between one and two years to get to trial.

Interlocutory applications for relatively non-urgent lengthy matters are usually given return dates four months after the application is lodged.

The Supreme Court normally makes time to hear very urgent applications such as freezing orders and will usually grant a hearing date almost immediately upon the lodging of the application.

Winding-up petitions are usually given return dates of around four months from their lodging with the Supreme Court Registry.

ii Class actions

Gibraltar law and procedure on class actions are the same as in England given that the matter is governed by the Part 19 of the CPR.

iii Representation in proceedings

Any adult who is not suffering from a disability may commence proceedings and represent him or herself in court in civil proceedings. The Supreme Court, while not encouraging litigants in person, normally shows understanding to such litigants.

iv Service out of the jurisdiction

The Civil Jurisdiction and Judgments Act 1993 applies the Brussels Convention18 and the Lugano Convention19 to Gibraltar. The CPR applies fully to proceedings under the Act and the position as regards law and procedure is therefore much the same as in England and Wales, with a few exceptions.

Generally, with regard to service out of the jurisdiction, the matter is determined in two ways, depending on whether the Conventions apply to the case.

If the Brussels or Lugano Conventions apply, a defendant may be served outside the jurisdiction without the permission of the Court if the provisions of CPR 6.33 are met and a statement setting out the grounds relied on to serve outside the jurisdiction is filed and served with the claim form.

If the claim does not fall under the Brussels or Lugano Conventions, permission to serve a defendant outside the jurisdiction is required. The application for permission is made ex parte to the Supreme Court. Like in England and Wales the claimant must stipulate what the grounds of CPR 6BP.3 are that he or she relies on,20 and the claimant must also establish that the claim on its merits has a reasonable prospect of success.21

Additionally, pursuant to CPR 6.37(3) the claimant must establish that Gibraltar is the proper place in which to bring the claim, which the Court will determine in accordance with the English common law principles of forum conveniens.

v Enforcement of foreign judgments

In general terms there are four main ways to enforce foreign judgments in Gibraltar. These are as follows.

The Brussels and Lugano Conventions

Judgments can be enforced pursuant to the provisions of the Conventions as applied to Gibraltar by the Civil Jurisdictions and Judgments Act 1993 (CJJA) upon their registration in Gibraltar. Procedure is governed by CPR 74.3, which requires an application to be made to the Supreme Court for the registration of a judgment of a contracting state; the application may be made without notice. The grounds on which the registration of a judgment can be challenged are very limited and are generally contained in Articles 27 and 28 of the Brussels Convention.

The Recast Brussels Regulation

The Recast Brussels Regulation was implemented in Gibraltar and came into operation on 10 January 2015 by virtue of Legal Notice 3 of 2015, which amended the CJJA in order to implement the said regulation.22 Article 36 of the Recast Brussels Regulation provides for automatic recognition resulting in no requirement for a special procedure. The grounds for the refusal to recognise and enforce a judgment are contained in Articles 45 and 46. Article 37 of the Recast Brussels Regulation provides the documentation that the applicant must produce for recognition of the judgment. Article 42 of the Recast Brussels Regulation provides the documentation that the applicant must produce for enforcement of the judgment.

Other statutes

Judgments may also be registered under the Judgments (Reciprocal Enforcement) Act 1935, which closely follows the 1933 English act of the same name. This Act applies in relation to judgments of various Commonwealth countries including the United Kingdom. These countries have entered into reciprocal enforcement agreements with Gibraltar. The procedure to be followed to register judgments and the grounds to challenge the registration of a judgment are, broadly speaking, similar to those under the CJJA.

Common law

Judgments from all other jurisdictions not covered by statute may be enforced at common law in the same way they are enforced in England and Wales. It requires the claimant to commence a fresh action to recover the judgment debt.

vi Assistance to foreign courts

The Gibraltar courts will assist foreign courts or tribunals in both civil and criminal matters. There are four relevant Gibraltar statutes: The Evidence Act, the Drug Trafficking Offences Act, the Mutual Legal Assistance (Schengen Convention) Act and the Mutual Legal Assistance (International) Act.

The Evidence Act includes procedures for the obtaining of evidence in Gibraltar to assist foreign civil and criminal proceedings. The process is begun by or on behalf of a foreign court or tribunal by way of letters of request and in civil (but not criminal) cases proceedings do not necessarily need to have been instituted in the foreign court, although grounds must be shown that civil proceedings are contemplated. The Supreme Court of Gibraltar’s powers include making orders for the provision of oral or written testimony and the production of documents.

In relation to drug trafficking offences, the Gibraltar Drug Trafficking Offences Act confers upon Gibraltar’s Attorney General the power to nominate a Gibraltar court to receive evidence (including documents) upon a letter of request being issued by a foreign court or tribunal exercising jurisdiction in a Convention state, a state to which the Vienna Convention has been extended or a country that appears to have the function of making such requests. Requests must be in connection with criminal proceedings or investigations in respect of offences of drug trafficking.

The Mutual Legal Assistance (European Union) Act and the Mutual Legal Assistance (International) Act both concern only criminal proceedings; the former enables evidence to be taken in connection with criminal proceedings or investigations in an EU state and the latter in non-EU states. They empower Gibraltar’s Attorney General, upon receipt of a letter of request from a foreign state to nominate a Gibraltar court to receive evidence. The appointed court also has the power to direct that a search warrant be applied for.

vii Access to court files

The Supreme Court Registry pursuant to CPR 5.4(1) keeps a publicly accessible register of claims, which any person may inspect upon payment of the prescribed fee.23 As in England and Wales, members of the public may obtain copies of a statement of case but not of any documents filed with it. They may also obtain copies of a judgment or order made in public without permission once the defendants have filed acknowledgments of service. Any wider access to records requires the permission of the court.24

viii Litigation funding

Third-party funding, the provision of funds by non-parties to a suit to fund litigation, is not illegal in Gibraltar, though if challenged the validity of funding arrangements is open to judicial scrutiny on the same grounds as in England and Wales.

This is so since Section 41 of the Contract and Tort Act, which mirrors Section 14 of the UK Criminal Law Act 1967, abolished criminal and civil liability for champerty (i.e., funding litigation for a share of any proceeds) and for maintenance (the provision of financial support for litigation, by a non-party); however, champerty and maintenance are retained as defences in contract, in the sense that such actions may render a contract void or voidable as being contrary to public policy or illegal.

Conditional fee agreements are enforceable in Gibraltar to the same extent as in England and Wales.25

IV LEGAL PRACTICE

i Conflicts of interest and Chinese walls

In Gibraltar conflicts of interest are governed by the rules contained in the Code of Conduct of the Bar of England and Wales and the Solicitor’s Code of Conduct 2011 by virtue of Section 33 of the Supreme Court Act. The Code of Conduct is implemented through the Barristers and Solicitors Rules, which govern the making of any complaints and disciplinary proceedings that may arise.

Given that the disciplinary rules, as well as the case law in relation to client confidentiality, are the same as in England and Wales, information barriers may be set up by firms to deal with conflicts on the same terms and conditions as in England.

ii Money laundering, proceeds of crime and funds related to terrorism

Gibraltar has fully implemented the Third Money Laundering Directive (the Directive),26 the purpose of which is to provide a common EU basis for implementing the Financial Action Task Force 2003 Recommendations on Money Laundering. Gibraltar’s Crime (Money Laundering and Proceeds) Act 2007 (the Money Laundering Act)27 is the statute by which the Directive was implemented. However, the Proceeds of Crime Act 2015 (POCA) commenced in January 2016, which consolidated the legislation on money laundering in Gibraltar and created a single statutory regime, thus repealing the Money Laundering Act, dealing with the recovery of money from drugs offences in the same manner as the recovery of money from other criminal conduct. It also introduced a new procedure enabling the seizure and confiscation of assets arising from any criminal conduct, even where no criminal proceedings are brought against anyone, in a manner similar to those regimes that exist in other jurisdictions such as the United Kingdom.

POCA has created a number of money laundering offences. A person commits an offence under POCA if he or she:

  • a enters into or is otherwise concerned in an arrangement whereby:

• the retention or control by or on behalf of another (A) of A’s proceeds of criminal conduct is facilitated (whether by concealment, removal from the jurisdiction, transfer to nominees or otherwise); or

• A’s proceeds of criminal conduct are used to secure that funds are placed at A’s disposal or are used for A’s benefit to acquire property by way of investment, knowing or suspecting that A is a person who is or has been engaged in criminal conduct or who has benefited from criminal conduct;

  • b knowing that any property is, or in whole or in part directly or indirectly represents, another person’s proceeds of criminal conduct, he or she acquires or uses that property or has possession of it;
  • c conceals or disguises any property that is, or in whole or in part directly or indirectly represents, his or her proceeds of criminal conduct; or converts or transfers that property or removes it from the jurisdiction, for the purpose of avoiding prosecution for an offence under POCA or the making or enforcement of a confiscation order;
  • d he or she discloses any matter within subsection (2);28 and the information on which the disclosure is based came to him or her in the course of a business or activity to which Section 9(1)29 applies; and
  • e makes a disclosure concerning a state or territory that is prohibited.

In addition, the expression ‘money laundering’ also includes any act that constitutes an offence, under Sections 5, 6, 7 or 8 of the Terrorism Act 2005 and any act that constitutes an offence under any other enactment that applies in Gibraltar and that relates to terrorism or the financing of terrorism.

Under POCA, responsibility for preventing and detecting money laundering or terrorist financing lies with relevant financial businesses, including entities licensed by the Financial Services Commission and other firms such as estate agents, tax advisers, banks, notaries and other independent legal professionals when they participate, by assisting in the planning or execution of transactions for their client, in matters concerning:

  • a buying and selling real property or business entities;
  • b managing client money, securities or other assets;
  • c opening or managing a bank, savings or securities accounts; and
  • d acting on behalf of and for their client in any financial or real estate transaction.

Firms must report or disclose suspicious transactions if they have reasonable grounds for knowing of or suspecting money laundering. POCA sets out standards that firms must meet relating to customer identification, the adoption of policies and procedures to deter and detect money laundering and terrorist financing, record-keeping and the training of staff.

iii Data protection

Data protection, and its governance, is supervised by the Gibraltar Regulatory Authority.30 As a statutory body, it is responsible for regulating data protection, the electronic communications sector, the gambling sector and, as from 2012, broadcasting in Gibraltar.31

Pursuant to the principles underlined in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995, the GRA is responsible for the implementation of data protection law and protection of individuals with regard to the handling of personal data and on the free movement of such data.

The Data Protection Commissioner, through the GRA, has ensured that a system is in place that monitors the executory function of the Data Protection Act.

The GRA works closely with its counterparts abroad, and through its website provides comprehensive advice on the implementation of the law in the workplace. Further, the complaints procedure in place allows for individuals, as well as corporations, to make data protection-related complaints to an extent such that it vastly extends the GRA’s continued responsibility to monitor the implementation of the law by corporations and individuals.

The basic principles that must be applied by businesses in relation to the handling of data are:

  • a the data must be obtained and processed fairly;
  • b it must only be used in relation to one or more specified and lawful purposes;
  • c data must be stored confidentially and only released to third parties with prior written consent from the individual permitting such release to third parties;
  • d it is a requirement that it be stored in a safe and secure manner;
  • e the data must be accurate and up to date;
  • f the data that is obtained must be exact and not excessive in consideration of the purpose for which it is held;
  • g the data must be retained only for the period required for the specified purpose;
  • h copies of a client’s personal data must be supplied to them on the client’s request; and
  • i if requesting data on behalf of a client, this must be requested in writing together with written permission from the client permitting collection or receipt of that data.

In respect of legal practices in Gibraltar, the same principles apply regarding the handling of data in conjunction with the recognised principles in relation to the status of legally privileged documents.

V DOCUMENTS AND THE PROTECTION OF PRIVILEGE

i Privilege

English common law is applied to the issue of privilege and in broad terms is divided between documents used or prepared when providing legal advice and those prepared or used in litigation or contemplated litigation.

ii Production of documents

The Civil Procedure Rules of England and Wales apply to Gibraltar by virtue of Section 38A of the Supreme Court Act 1960. As such, the rules governing the production of documents in litigated civil cases in Gibraltar is contained in these Civil Procedure Rules, more specifically Part 31, and mirrors the procedure followed in England and Wales.

VI ALTERNATIVES TO LITIGATION

i Arbitration

Arbitration in Gibraltar is governed by the Arbitration Act 1895, which has undergone several amendments since its initial commencement. Schedule 1 contains certain provisions that are to be implied in all arbitration agreements, unless the arbitration agreement contains a provision expressly stating the contrary. These provisions are general in their nature and relate to the appointment of arbitrators, the nature of the award and the costs therein.

Part 1 of the Act deals with the general provisions that would generally apply to most arbitration agreements. Sections worth noting include:

  • a Section 3: makes an arbitration agreement irrevocable without the leave of the court and serves to give the agreement the same effect as an order of the court;
  • b Section 6: the provisions contained in Schedule 1 are deemed to be implied in all arbitration agreements unless the contrary is expressly stated within the agreement;
  • c Section 8: grants the courts powers to stay any proceedings to which there is an ongoing arbitration agreement so as to facilitate the arbitration;
  • d Section 21: this section allows for an arbitration award to be enforced in the same manner as a judgment or order, albeit with the leave of the court, and allows for judgment to be entered in terms of the actual award itself; and
  • e Section 22: allows for the award to carry interest equal to that of a judgment debt.

The Arbitration Act 1895 gives the New York Convention effect via Part IV, which contains the provisions for awards under the New York Convention. Section 48 allows for the courts to stay any ongoing court proceedings in relation to agreements that are not ‘domestic arbitration agreements’ and it serves as the equivalent of Section 8 to all agreements deemed not to be ‘domestic’. However, the factors the court may take into account in deciding whether to stay the proceedings differ from Section 8 in that they focus more on whether the agreement is capable of being performed rather than whether the applicant is ‘ready and willing to do all things necessary to the proper conduct of the arbitration’.

Part IV also allows the courts to enforce arbitration awards made pursuant to agreements outside of Gibraltar, albeit only among states that are a party to the New York Convention (Section 50). These are enforced in the same manner as those under Section 21 and carry equal weight and Section 51 states what must be produced by a party seeking to enforce such an award. Section 52 states the grounds upon which the courts may refuse to enforce an award under the New York Convention and these are self-explanatory in nature.

ii Mediation

In Gibraltar, there are no rules that make this course of action mandatory or that provide definitive guidelines on how mediations are to be conducted. Parties are generally free to agree between themselves all aspects of the mediation process as in England and Wales. Under the CPR mediation is encouraged; however, resorting to mediation is not common in Gibraltar.

VII OUTLOOK AND CONCLUSIONS

Formal methods of alternative dispute resolution have not taken root in Gibraltar, despite much encouragement by the judiciary after the CPR were introduced locally in 2001; however, the Gibraltar Bar has a long tradition of following a process of airing disputes informally and without prejudice between lawyers acting for opposing parties, which leads to many actions being settled before proceedings are issued or before trial.

In general, litigation in Gibraltar, as it is a small jurisdiction, is extremely varied and most of its experienced practitioners have very wide fields of practice and competence.

Footnotes

1 Stephen V Catania is a partner at Attias & Levy.

2 Section 32 of the Constitution.

3 Sections 1 to 18 of the Constitution.

4 The English statutes that apply to Gibraltar are those listed in the Schedule to the Act, and any other statute extended to Gibraltar by Order in Council or by express provision in the Act – see Section 3(1) of the Act.

5 Sections 3 and 4.

6 It was held in the case of Jones v. Simoni [SC] 1995-96 Gib LR 45 that Section 12 was not restricted by the English Law (Application) Act, or the Interpretation and General Clauses Act, and was not confined to procedural matters.

7 See Section 66 of the Constitution and Section 22A of the Court of Appeal Act.

8 Civil Appeal No 3 of 2016 (appeal from Supreme Court Claim No 2015-COMP-23) – the Supreme Court Judgment can be found at www.gcs.gov.gi/images/judgments/supremecourt/2016/in_the_matter_of_the_companies_act_2014_and_in_the_matter_of_tasmania_investments_ltd.pdf and the Court of Appeal judgment can be found at www.gcs.gov.gi/images/judgments/coa/2016/in_the_matter_of_the_companies_act_2014_and_in_the_matter_of_tasmania_investments_ltd.pdf.

9 See paragraph 17 of the Court of Appeal Judgment.

10 Civil Appeal No. 4 of 2015.

11 In the Matter of Peabody Holdings (Gibraltar) Ltd and in the Matter of an Application by Amy Schwetz as Foreign Representative of Peabody Holdings (Gibraltar) Ltd appointed by the US Bankruptcy Court, Eastern district of Missouri for Recognition under the Insolvency (Cross Border Insolvencies) Regulations 2014, Claim No 2016-Comp-008.

12 See paragraph 26 of the Judgment.

13 [2016] UKPC 5

14 Paragraphs 56–58.

15 See Section 15 of the Supreme Court Act, Rule 6(1) and (2) of the Supreme Court Rules 2000 (SCR).

16 Pursuant to Rule 6(2) of the SCR, the following former English Rules apply: Companies (Winding-up) Rules 1929 as amended, the Matrimonial Causes Rules 1957 as amended, and the Bankruptcy Rules 1952, as amended.

17 Rule 3 of the SCR.

18 Section 4(1).

19 Section 4(3).

20 CPR 6.37(1)(a).

21 CPR 6.37 (1)(b).

22 The preamble to LN 3 of 2015, made by the Minister for Justice reads, ‘In exercise of the powers conferred upon it by Section 23(g) (ii) of the Interpretation and General Clauses Act, and in order to implement Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgment in civil and commercial matters (recast) the Government has made the following Regulations.’ Regulations were then set out in the legal notice effecting amendments to the CJJA to implement the Recast Brussels Regulation.

23 CPR 5.4(2).

24 CPR 5.4C(2).

25 In the matter of an application to the Chief Justice pursuant to the Supreme Court Rules, Rule 2 [2001-02 Gib LR 329].

26 2005/60/EC.

27 Formerly known as the Criminal Justice Act.

28 Section 5(2) of POCA:

The matters are (a) that either he or another person has made a disclosure under this Part (i) to a police officer; (ii) to a customs officer; (iii) the appropriate person under Section 28; or (iv) to the GFIU, of information that came to him in the course of a business or activity listed in Section 9(1);or (b) that an investigation into allegations that an offence under this Part has been committed, is being contemplated or is being carried out.

29 Relevant Financial Business is defined in Section 9(1) of POCA: www.gibraltarlaws.gov.gi/articles/2015-22o.pdf.

30 Gibraltar Regulatory Authority Act 2000.

31 Data Protection Act 2004.