International Arbitration: resolving disputes

International Arbitration: resolving disputes

With the global drive to encourage arbitration above litigation, the Bahamas is fast becoming an international arbitration centre of choice. Importantly, foreign arbitral awards can be enforced in the Bahamas in the same way as judgments of the court. 

The specialist litigation and arbitration lawyers at Bahamas law firm ParrisWhittaker are highly experienced in both domestic and international disputes, including arbitrations.

International arbitration frameworks

The Bahamas is a member of the International Center for the Settlement of Investment Disputes (ICSID), the Multilateral Investment Guarantee Agency, and the New York Convention. Under Order 66 of the Rules of the Bahamian Supreme Court there are provisions for arbitration proceedings. 

The Bahamas is also party to:

• The Recognition and Enforcement of Foreign Arbitral Awards - which provides for the enforcement of agreements in commercial disputes by the courts of a contracting state, and
• The Reciprocal Enforcement of Judgments Act 1924 (the ‘REJA’) - under which judgments of the court including arbitral awards can be registered and enforced in the Bahamas

In addition, the domestic Arbitration Act and the Arbitration (Foreign Arbitral Awards) Act came into force on May 20 2010. These reflect the Bahamas' commitment to adhere to the recommendations of the United Nations Commission on International Trade Law (UNCITRAL).  Where there is an agreement to go to arbitration, the parties can rely on the provisions of the above Arbitration Acts. 

Arbitration in practice

The framework set out in the Arbitration Act covers domestic arbitration proceedings; the composition of the tribunal to hear disputes; and the application of the rules that will determine the arbitration dispute.  It also allows the parties to apply to the Bahamian court (in certain circumstances) to, for instance: assist in proceedings, and to decide on the legitimacy of arbitration agreements and the subsequent proceedings.

The parties can apply to the court concerning procedural matters including:
• Appointing an arbitrator when the agreed process of appointment has been unsuccessful
• To obtain evidence from witnesses
• To apply interim measures arising out of an arbitration tribunal's ruling
• Termination of an arbitrator where need arises
• Challenges to arbitral awards on the basis of serious irregularity
• Enforcing arbitral awards

The Arbitration (Foreign Arbitral Awards) Act 2009 provides for the enforcement of convention awards (ie. awards following an arbitration agreement in another state that is also party to the New York Convention).  When leave is given by the Bahamian court, the convention arbitral award can be enforced in the same way as a judgment of the Bahamian courts.  However, note that the court has the discretion to refuse recognition and enforcement of a convention award in certain circumstances:

• The arbitration agreement was invalid under the law to which the parties subjected it
• A party was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings
• The award deals with subject matter not contemplated by or not falling within the terms of the submission to arbitration
• Public policy reasons

What can we do?

Parties to commercial contracts must protect themselves in the event of a future dispute by including provisions for arbitration proceedings. Arbitration clauses should be carefully drafted to ensure they are clear and unambiguous, otherwise they could compound any disputes that do arise.  

Robust and effective arbitration clauses will include:

• Choice of governing law of the contract and of the arbitration
• The seat (place) of arbitration: this decides which procedural rules will govern the arbitration
• The number of arbitrators: up to three may be required
• Language to be used: this can save or avoid the cost of translators

How can we help?

Award-winning Bahamas law firm Parris Whittaker represents the highest standards of commercial litigation and arbitration.  Contact us for specialist advice on how the expert commercial litigation lawyers at ParrisWhittaker can successfully help enforce a foreign arbitral award of court judgment quickly and effectively.