Arbitration And Mediation In Turks And Caicos

• Published date: 21 January 2022
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution
• Law Firm: Griffiths & Partners
• Author: Griffiths & Partners

The economy of the Turks and Caicos Islands ("TCI") has seen well above average growth in the past years, notwithstanding a worldwide pandemic. The tourism sector is of course one of TCI's largest drivers of growth, however the financial services industry and high-end real estate sector have also supported economic development.

As with any economy, real financial and economic growth is accompanied by necessary and required developments to the legal system. Changes to the legal system combined with economic growth are further a recipe for an increase in litigation. While adversarial litigation in the court room is most commonly the manner in which disputes are resolved, businesses, individuals and attorneys can sometimes overlook the opportunity for disputes to be resolved through alternative dispute resolution ("ADR").

ADR in TCI has evolved considerably over the past decade. While the islands are not yet a hub for large arbitral disputes, the use of arbitration as an alternative, more affordable, private and less time-consuming form of dispute resolution in contract and commercial matters has increased. The formal introduction of mediation in civil (and, unusually, criminal) litigation matters through legislative amendments and the creation of a roster of mediators (championed by the Chief Justice) has also firmly placed mediation as a viable part of the litigation process, if parties wish to use it.

Arbitration

There are real benefits to resolving a dispute through arbitration, including: (1) parties to arbitration agreements have more control over the dispute litigation process, the tribunal who will decide the matter, and the choice of law; (2) the arbitration process, and arbitral decisions, to a large extent remain confidential, whereas the court process is open to the public; (3) arbitral decisions are final and binding with limited rights of appeal; and (4) arbitration can be quicker and more cost effective when compared with the court process, and (5) arbitral awards are often simpler and easier to enforce overseas.

In TCI the Arbitration Ordinance CAP 4.08 (the "Ordinance")¹ governs domestic and international arbitration agreements and arbitration proceedings. There are no restrictions on what subject matter may be referred to arbitration under the Ordinance and parties are free to make a choice of law and procedure independent of the Ordinance and the Court.

The Ordinance provides for limited challenges to the choice of arbitrator or setting...