International Commercial Arbitration in Barbados

1. Introduction

   I will begin with a question to myself: "Why am I, an English solicitor, writing an article about international commercial arbitration in Barbados?" My answers, which I hope will persuade you to read on, are:

   Barbados, in addition to its many other attributes, is in my view an excellent venue for international commercial arbitration, not least following the entry into force in early 2009 of a new international commercial arbitration statute, closely based on the UNCITRAL Model Law.1 That view merits wider circulation, especially to those who might consider choosing the island as an arbitration venue. The new statute expressly allows for lawyers like me, who are qualified to practise under the law of a state other than Barbados, to participate in international commercial arbitration in Barbados. The statute is international in origin and provides that this fact is to be taken into account when it is interpreted. It is necessary to refer to the laws of Barbados, of which the new statute forms part, and I have had the considerable benefit of advice and comment from The Honourable Mr Justice Peter Williams, Justice of Appeal of the Barbados Supreme Court,2 for which I am extremely grateful. 2. The Legislative and Judicial Framework

   In 2007, the Parliament of Barbados enacted the International Commercial Arbitration Act 2007 (the Act),3 which came into operation on January 19, 2009 by virtue of a Proclamation of the Governor-General.4

   The Act applies to "international commercial arbitration, subject to any agreement in force between Barbados and any other State or States"5 Where the Act applies, the Arbitration Act6 of August 15, 1958 does not apply.7 In broad terms, therefore, the Act governs international commercial arbitration in Barbados, whilst the 1958 Arbitration Act continues to govern domestic arbitration and non-commercial international arbitration.

   Nothing in the Act affects the right to seek recognition and enforcement of an award under the Arbitration (Foreign Arbitral Awards) Act8 1980,9 which gave effect in Barbados to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.10

   The Act contains a saving provision, according to which it shall not affect any other law of Barbados which prohibits the submission of certain disputes to arbitration or which requires disputes to be submitted to arbitration only in accordance with other statutory provisions.11 It is not thought that this is of any materiality to international commercial arbitration.

   Like all other legislation, that relating to arbitration is subject to the overriding provisions of the Barbados Constitution,12 which provides in Chapter I that "This Constitution is the supreme law of Barbados and, subject to the provisions of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void".

   On reading Chapter III of the Barbados Constitution, concerning the fundamental rights and freedoms of the individual,13 those familiar with the European Convention on Human Rights (ECHR)14 will be struck by some similarities. That is not coincidental, because it is known that the chapter was greatly influenced by the ECHR,15 which was in turn influenced by the United Nations Universal Declaration of Human Rights (UDHR).

   Of potential relevance to arbitration is the Constitution s.18(1), which provides that:

   "Any court or other tribunal prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such determination are instituted by any person before such court or other tribunal, the case shall be given a fair hearing within a reasonable time."

   This has significant similarities with the wording of the ECHR art.6(1).16

   This article will not address in detail the application of such "due process" rights to arbitration.17 Suffice it to say that there seems no reason in principle why s.18(1) should not extend to international commercial arbitration in Barbados18 and that the Act appears to be compliant with it, as is to be expected of a statute based on the UNCITRAL Model Law. The Act provides for arbitrators to be both independent and impartial- and there is sufficient provision to ensure a fair hearing for parties.20 An arbitrator who fails to act without undue delay is liable to be removed by the parties or the court.21

   The Constitution s.18(1) applies where there is recourse, under the relevant provisions of the Act (see section 5 of this article below), to the Barbados courts. Those courts are undoubtedly independent and impartial and provide parties with a fair hearing,22 but the existence and content of the Constitution, as well as its partial genesis in the ECHR and the UDHR, should provide overseas parties with additional reassurance.

   Chapter VII of the Constitution contains provisions that established and now regulate the Supreme Court of Judicature of Barbados, comprising the High Court and the Court of Appeal. The route of further and final appeal to the Privy Council has been replaced with a system of appeals to the Caribbean Court of Justice23 (CCJ).24

   Copies of the Act and the Constitution may be conveniently accessed online.25

3. The Objectives of the Act

   The stated objectives of the Act are twofold: "to establish in Barbados a comprehensive, modern and internationally recognized framework for international commercial arbitration by adopting the UNCITRAL Model Law on International Commercial Arbitration";26 and "to provide the foundation for the establishment in Barbados of an internationally recognized centre for international commercial arbitration".27

   The first objective was substantially achieved when the Act came into operation in January 2009. Whether that achievement is complete or whether there are refinements that could usefully be made is examined below.

   As to the second objective, the Act contains no specific provision for the establishment of a centre for international commercial arbitration in Barbados. It would seem, therefore, that the "foundation" that the legislators were seeking to provide was the legislative framework referred to in the first objective. It is not clear from the wording of the Act whether they envisaged that a physical and organisational "centre for international commercial arbitration" would be established and run by a specific administrative entity, such as has been established in some other jurisdictions,28 or the looser establishment of Barbados as a venue with international recognition as an attractive jurisdiction in which to hold an international commercial arbitration. Either aspiration would be worthy of pursuit, but the initiative between Invest Barbados29 and the London Court of International Arbitration (LCIA) to establish a regional office of the LCIA in Barbados, which was under discussion in 2008, suggests that it was the former that those who drafted the Act had in mind.

   That initiative has not yet gone ahead, due to the ongoing uncertainties of the world economy.30 Invest Barbados remains keen to establish a centre for international commercial arbitration in Barbados in partnership with a leading arbitral institution. In the meanwhile, Barbados is already an attractive jurisdiction for international commercial arbitration (as I hope this article will demonstrate) and the establishment of a regional office of an organisation such as the LCIA, whilst a laudable aim, should not (in my view) be seen as a prerequisite to achieving international recognition of the island as an international arbitration venue. Other practical steps could be taken, such as the formation of an international advisory committee with a remit to assist in the achievement of such recognition, the creation of a website or webpage dedicated to international commercial arbitration in Barbados and the appointment of an officer of Invest Barbados (or other appropriate organisation) to assist parties and arbitrators in the practical aspects of holding an arbitration on the island.

4. To What Extent Does the Act Diverge from the UNCITRAL Model Law?

   The UNCITRAL Model Law will be familiar to many readers and its text is readily available,31 as are commentaries on it. Therefore, rather than setting out the Act's provisions, I will indicate the main respects in which it diverges from the Model Law and draw attention to some specific issues.

   The 2006 version of the UNCITRAL Model Law

   The Act is based upon the 1985 UNCITRAL Model Law, amended in 2006. In the words of UNCITRAL:

   "The Model Law ... covers all stages of the arbitral process from the arbitration agreement, the composition and jurisdiction of the arbitral tribunal and the extent of court intervention through to the recognition and enforcement of the arbitral award. It reflects worldwide consensus on key aspects of international arbitration practice having been accepted by States of all regions and the different legal or economic systems of the world.

   Amendments to articles 1(2), 7 and 35(2), a new chapter IV A to replace article 17 and a new article 2A were adopted by UNCITRAL on 7 July 2006. The revised version of article 7 is intended to modernise the form requirement of an arbitration agreement to better conform with international contract practices. The newly introduced chapter IV A establishes a more comprehensive legal regime dealing with interim measures in support of arbitration. As of 2006, the standard version of the Model Law is the amended version".32

   Barbados has chosen not to adopt the 2006 amendments to arts 7 and 35(2), adopting instead the original 1985 versions but has adopted the other 2006 amendments.

   Provisions of the Act specific to Barbados

   Self-evidently, references in the Model Law to "this State" become, in the Act, references to "Barbados". The Act...