When I first told my friends and colleagues in London that I was moving to Bermuda in 2007, many of them were completely baffled. Why would I want to give up my practice as a junior barrister at 4 Pump Court in the Temple to join an offshore law firm as a ‘barrister and attorney’? What did I expect to achieve in Bermuda that could not be achieved in London? How could I hope to keep myself entertained, after work? And how would I cope with the embarrassment of wearing Bermuda shorts and long socks as a grown man in public?
I did have some concerns, of course. I was worried that I was throwing away my career at the London Bar, after seven years’ hard work, potentially consigning myself (in the eyes of clients and instructing solicitors) to the professional equivalent of the Bermuda Triangle. I knew that I would certainly miss my family, friends, clerks, and colleagues, as well as lunches in Middle Temple Hall and strolls around Inner Temple Gardens. Fast forward 11 years, three children, and one successful QC application later, I am pleased to report (with an enormous sense of privilege and gratitude) that moving to Bermuda was one of the best decisions that I have ever made.
The day-to-day of a paradise lawyer
A typical day begins with a coffee at 6:30 am, and a surge of emails and media feeds discussing the latest cyberhack of an offshore law firm’s client data, or yet another international initiative to clamp down on (legal) tax avoidance as well as (illegal) tax evasion.
Regrettably, the reality of living and working in a mid-Atlantic ‘Paradise’ is not entirely consistent with the popular imagination of a ‘tax haven’. While I concede that Bermuda is blessed with stunning sunsets, sandy beaches, turquoise waters, and pastel architecture, we also experience a disproportionately high level of hurricanes, ants, flying cockroaches, and humidity.
Indirect taxation and the high cost of living in Bermuda largely offset the low level of direct taxation. The morning news is often dominated by local socio-economic and political challenges (including gang crime and one of the highest level of road traffic fatalities in the world), even before attention turns to the curious fact that we have Donald Trump to the left of us, and Brexit to the right. I do not mention this in search of sympathy. I simply note that many of my mornings are spent dwelling on such matters, as I squash another bug and send another email, before the morning school run. Fortunately, I have less of a daily commute between home and office than in London. (I travel by Vespa, weaving through the traffic, flirting with the statistics referred to above, especially when it rains, torrentially.)
Since my clients are just as likely to be based in Hong Kong, Dubai, New York, or San Francisco as in an office-block next door, conference calls in the small hours are all too frequent. I often work late into the night, advising clients, drafting court documents, preparing submissions. The long hours in the week are rewarded with summer holiday-like weekends spent messing around in boats, and occasional business trips to cities like New York, Toronto, Miami, and Singapore.
In all honesty, the humdrum of my daily routine is not entirely dissimilar to my life at the London Bar, even though the Bermuda legal profession is a fused one (with associated solicitor-ish responsibilities). Last minute, urgent instructions are relatively common; incomplete papers and information are not uncommon; and there is still the occasional request that counsel should ‘do the necessary’. Although I am a partner in an international law firm, my working practices are much like they would have been in my old chambers, save that I often lead or work as part of an international team including lawyers both in my own firm as well as foreign lawyers (often American, sometimes more exotic).
I had originally expected my work in Bermuda to focus exclusively on insurance and reinsurance disputes, given Bermuda’s status as one of the world’s largest insurance markets. And while I have been fortunate to be involved in a large number of insurance disputes (not a day goes by without a mention of the ‘Bermuda Form’, Catastrophe Bonds, or Insurance-Linked Securities), I have also ended up doing much more than that: in part by accident, in part by design.
It was certainly an accident that my first few years in Bermuda coincided with the Global Financial Crisis. This resulted in a huge number of banking and financial services disputes in Bermuda, particularly in the hedge funds industry. Ten years after Madoff’s fraud was discovered, at least some part of my working day, every day, is still spent dealing with court-appointed liquidators, creditors’ committees, Ponzi-scheme victims, and foreign bankruptcy trustees, as they try to recover eye-wateringly large amounts of (missing) money (and professional fees) from anxious investors, directors, professional service providers, and liability insurers. In addition to contentious insolvency work, I have also developed a broader ‘Chancery commercial’ practice, dealing with trusts, companies, asset recovery, and property disputes (both real and ethereal). Most weeks involve a substantial application to the Supreme Court of Bermuda of one sort or another, whether for the purpose of restructuring a billion dollar trust or holding company, un-oppressing minority shareholders, or freezing assets that have long since left the jurisdiction (whether heading for Delaware, the Marshall Islands, or cyberspace). As the legal jurisdiction of Bermuda punches above its weight in terms of its ability to attract the very best of the London Bar for specific cases, I have had the opportunity to work closely with many of the London super-silks (whose names I shall not mention).
Unusually for an offshore lawyer, perhaps, at least some of my day is spent advising or representing environmental advocacy groups and public interest charities such as the Centre for Justice (a human rights advocacy group) and the Bermuda Environmental Sustainability Taskforce (Bermuda’s equivalent to ClientEarth). The Bermuda courts have experienced an exponential growth in judicial review proceedings and constitutional challenges in recent years, and this has been a fertile legal battle-ground, given Bermuda’s unusual constitutional status as a British Overseas Territory with a written constitution, its own Government and Parliament, its own regulatory bodies, and its own legal system. I have also had to become unexpectedly well-informed in the regulation of the financial services, IT, telecommunications and energy industries in Bermuda, as well as the regulatory work of Bermuda’s Ombudsman, Human Rights Commission, Bar Council, Monetary Authority, Stock Exchange, and Information Commissioner. Indeed, no offshore litigator can avoid acquiring some level of regulatory expertise these days, given our daily diet of tax information exchange and beneficial ownership disclosure issues, as well as the laws relating to proceeds of crime, anti-money laundering, anti-terrorist financing, anti-bribery and corruption, and international sanctions.
Since Bermuda’s Parliament has recently passed some of the first laws introduced anywhere in the world for the comprehensive regulation of Initial Coin Offerings and Virtual Currency Business, some of my day is also now spent advising clients on the risks and regulation associated with crypto-businesses, as Bermuda strives to become the Silicon Valley of the mid-Atlantic.
When I’m not stuck at my desk contemplating the difference between an IPO and an ICO, an average working day might end with a client seminar or reception by a hotel pool, a harbourside dinner with my wife, a sailing race, or a ‘Happy Hour’ cocktail (often, but not exclusively, a Rum Swizzle or a Dark ‘n’ Stormy).
Professionally and personally speaking, my work and life in Bermuda is of such a quality, interest, complexity, and diversity, that I could not have asked for much more. While I still miss many aspects of London-life (and I am always happy to visit), ‘the vexed Bermoothes’ are not the worst place in the world to be shipwrecked and to wash ashore. As Mark Twain once said, ‘You go to heaven if you want to: I’d rather stay right here in Bermuda.’
The Jurisdiction of Bermuda
This year Bermuda celebrates the 50th anniversary of its written Constitution of 1968. In addition to a steady diet of financial services, trusts, insurance, and corporate/commercial disputes, the Bermuda courts have spent recent years dealing with a multiplicity of legal challenges on issues as diverse as LGBTQ, children’s, religious, and environmental rights, all in the context of Bermuda’s unique socio-economic and political history and its racially diverse population.
Given the nature of international business transactions that originate in or pass through Bermuda, it will come as no surprise that the value and complexity of a ‘bread and butter’ commercial dispute in the Supreme Court of Bermuda can be much greater than the equivalent dispute in England and Wales. The value of many cases before the Bermuda courts is in the hundreds of millions, or billions, of dollars, and such cases often involve conflicts of law issues, including debates over jurisdiction, the most convenient forum, or the applicable governing law. The relatively undeveloped status of Bermuda’s local case law, and the innovative nature of certain pieces of legislation, result in significant opportunity for creative legal argument, and the frequent application of comparative jurisprudence.
One of the privileges of working as a barrister in a smaller legal jurisdiction like Bermuda is appearing as counsel before a relatively small pool of judges and arbitrators, sometimes more than once a day. Both Chief Justice Ian Kawaley and Mr Justice Stephen Hellman are sadly due to stop sitting as judges of the Supreme Court of Bermuda in the summer of 2018. This is a double-blow to the jurisdiction, legally-speaking. As Oscar Wilde might have told the Bermuda government, ‘to lose one judge may be regarded as a misfortune, to lose both looks like carelessness’. Chief Justice Ian Kawaley (who will be replaced by Chief Justice Narinder Hargun) will continue to sit as a judge of the Grand Court of the Cayman Islands, and Mr Justice Hellman has been appointed to sit as a Circuit Judge on the South Eastern Circuit, based at Central London County Court. They will both be missed for the high quality of their prolific contribution towards Bermuda’s local case law, and offshore jurisprudence more generally (both judicially and extra-judicially). Indeed, I would respectfully suggest that Chief Justice Kawaley will come to be recognised in due course, both in Bermuda and internationally, as the greatest commercial law and public law judge in Bermuda’s 400-year legal history, with Mr Justice Hellman likely to take a podium position as well.
Applying for Silk from overseas
I hope that other English and Welsh-qualified barristers (and solicitor-advocates) working internationally will realise that it is possible (under the current QC competition rules, and in light of my own experience) for successful applicants for Silk to demonstrate evidence of the necessary competencies by reference to cases conducted before international arbitration tribunals and common law courts in British Overseas Territories that follow English common law such as Bermuda, the Cayman Islands, and the British Virgin Islands.
Contributor Alex Potts QC is a partner in the Bermuda office of the international law firm, Kennedys.