New York Convention Awards can be enforced in The Bahamas – but how is this achieved, and in what circumstances can the court refuse to allow enforcement?
The experienced commercial Bahamas lawyers at ParrisWhittaker regularly advise and represent claimants seeking to enforce convention awards - and has recently seen a notable success on behalf of a group of clients.
Jacy Whittaker of ParrisWhittaker has successfully acted for the parties seeking to enforce a convention award1. Our clients applied for leave to enforce a convention award made in the US Virgin Islands, but some of the respondents applied for the application to be struck out. The Court of Appeal ruled that the judge in the lower court was wrong to have allowed that application, and gave leave to our clients to enforce the award in their favour.
The Court of Appeal found that the specific categories under section 6 of the Arbitration (Foreign Arbitral Awards) Act 2009 (‘AFAAA’), in which a convention award can be refused enforcement, did not apply in this case. The judge’s order was set aside and a costs order made in favour of our clients. The Respondents have sought leave to appeal to the Privy Council.
The AFAAA gives (among other things) power to the court, on an application by a party to arbitral proceedings, to order enforcement of arbitral awards in the same manner as a Bahamian Supreme Court award.
The Bahamas is a contracting state to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Under the AFAAA, the New York Convention regime is incorporated for the enforcement of foreign arbitral awards in The Bahamas. A convention award is ‘an award made pursuant to an arbitration agreement in a state other than the Bahamas that is a party to the New York Convention’.
Under the AFAAA, on production of the authenticated original award and original arbitration agreement, convention awards can be enforced in The Bahamas in the same way as judgments or orders of the Bahamian courts.
If leave is given by the Bahamian courts, all relief and remedies available under the law of The Bahamas may be used to enforce a convention award against a party's assets within the jurisdiction. However, the court has the discretion to refuse leave to enforce a convention award under section 6 AFAA in circumstances, including where:
1) A party to the arbitration agreement is under an incapacity under the law applicable to that party
2) The arbitration agreement was invalid under the law to which the parties subjected it
3) A party was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings
4) The award deals with subject matter not contemplated by or not falling within the terms of the submission to arbitration
The court can also refuse an application for recognition and enforcement on grounds of public policy.
If you need to apply for recognition and enforcement of a convention award, contact us as soon as possible for expert advice on how to apply to court, and what is required to do this effectively. The experienced commercial lawyers at ParrisWhittaker have years of experience successfully representing clients on enforcing court orders in their favour.
1SCCivApp & CAIS No 198 of 2014