The BVI International Arbitration Centre and the C - PDF document

1 2 / 10 4822 - 6746 - 8357, v. 3 Th
2 / 10 4822 - 6746 - 8357, v. 3 The BVI International Arbitration Centre and the C aribbean Association of Judicial O fficers : A Case for Cooperation ? This paper considers the objectives of the BVI International Arbitration Centre (BVI IAC) within the context of the judiciary in the Caribbean. It provides answers to the following questions:  What is the history of the BVI International Arbitration Centre ? this part will provide some background on the genesis of the BVI IAC;  What does the BVI IAC offer? This will provides an overview of the Centre itself and of the Arbitral institution ; and  A Case for Cooperation? summarises our views about potential colla boration with CAJO . The appendix provides supplementary information about the institution. I. What is the history of the BVI International Arbitration Centre ? The BVI recently launched the BVI I nternational A rbitration C entre (BVI IAC) . The BVI IAC, an independent non - profit institution, was established to meet the demands of the international business community for a neutral, impartial, efficient and reliable dispute resolution institution in the region , Latin America and beyond . The BVI IAC is the product of several years of planning by a focus group chaired by the late Dr. Joseph S. Archibald QC, veteran BVI lawyer and keen proponent of arbitration in the BVI a

2 nd the wider Caribbean. Consequently, th
nd the wider Caribbean. Consequently, the BVI adopted the Arbitration Act in 2013, which established the BVI IAC. In May 2014, following a request by the BVI Government to the United Kingdom Government, the BVI acceded the 1958 New York Convention. 3 / 10 4822 - 6746 - 8357, v. 3 In 2015, Cabinet appointed the inaugural Board of the BVI IAC. The BVI IAC Boa rd is chaired by John Beechey CBE. Mr. John Beechey CBE is a renowned independent arbitrator. He was president of the ICC International Court of Arbitration from January 2009 until June 2015. Mr. Beechey oversaw the introduction of the new ICC Arbitration and Mediation Rules and new Rules for Experts. He was primarily responsible for the Court’s move to new premises and he proposed and implemented the establishment of the new governing body, which has the responsibility for long - term strategic planning for the Court. During his term of office, the Court opened operations in New York and saw the inception of the Jerusalem Arbitration Centre and many changes to the practices of the Court, the principal purpose of which has been to improve the efficiency of the Court and the quality of the service that it offers to its users. Before assuming the presidency of the ICC Court, he had founded the international arbitration practice at Clifford Chance, where he was a partner for 25 years. He has a long and distinguish ed career in dispute re

3 solution. Other members include Mr. Ch
solution. Other members include Mr. Cherno Jallow, QC (deputy Chairman) who was Attorney General of the British Virgin Islands from 1999 to 2007. Mr. Mark Forte, a partner and head of litigation and restructuring in the BVI office of Conyers Dill & Pearman. Mr. Murray Smith, a chartered arbitrator with extensive experience in commercial litigation and arbitration. For more than 20 years, Mr. Smith has also been involved in international commercial arbitration continuing legal education programmes in England, British Columbia, Yukon, the United States and the Caribbean (including the BVI). Ms. Felice Swapp, the chief operating officer of Harney’s . Full biographies available on our website. In 2016, the BVI IAC appointed Francois Lassalle as Chief Executive Officer of the Centr e. As the Chief Executive Officer of IAC, Mr. Francois Lassalle was responsible for 4 / 10 4822 - 6746 - 8357, v. 3 the overall set - up, growth, management and operations of the institution. Prior to moving to the BVI, Mr. Francois Lassalle worked for Linklaters and Dentons in London, whe re he advised senior management on their strategies and served as global and Divisional Business Manager for various practices and divisions. The BVI IAC aims to become the go - to institution for International Arbitration , a nerve centre for dispute resolu tion, thought leadership, seminars and trainings as w

4 ell as various other initiatives . T
ell as various other initiatives . T he BVI IAC is determined to contribute to the expansion and promotion of international a rbitration in non - traditional arbitration jurisdictions, such as in the Caribbean and Latin America. II. What does the BVI IAC Offer ? The BVI IAC , located on the 3 rd floor of Ritter House, Wickhams Cay II, Tortola, opened its doors on November 16th 2016. Any CAJO member is wel come to visit the Centre so please do contact us on info@bviiac.org to organize this or simply pop around if you are in Tortola . The Centre boasts four brand new hearing rooms and six breakout rooms that can be configured to accommodate any hearing size. All hearing rooms come with state - of - the art technology, including built - in facilities for simultaneous interpretation, court reporting, audio and video conferencing. The Centre can also accommodate general meetings, seminars and conferences. Additional breakout room space will available upon request on the secretariat floor which should be completed by the end of 2017 . The Centre offers a comfortabl e lounge area with business facilities for coffee breaks and refreshments. The Centre’s Secretariat will be located on the ground floor. For further details about the facilities, please visit our website: www.bviiac.or g . 5 / 10 4822 - 6746 - 8357, v. 3 The Centre’s main functio

5 ns will be to administer arbitrations un
ns will be to administer arbitrations under its own rules. However, it will also offer users of 'ad hoc' or other institutional arbitration first class premises and support services in a jurisdiction which enjoys a high reputation for the qual ity of its commercial and appellate courts and for political stability. The aim is to ensure that the BVI IAC becomes the regional C entre of choice for the arbitration of disputes arising out of business activity and projects worldwide. While parties will always be free to nominate arbitrators of their choice, the BVI IAC maintain s a roster, curated by Mr. Toby Landau QC, which, at its inception, include s over 190 highly regarded international arbitrators and other dispute resolution practitioners, drawn fr om both common law and civil law jurisdictions, who will be able to conduct arbitrations in a number of languages including English, Spanish, Portuguese, Russian, Chinese, French, German and Italian. A well run and well equipped ‘state of the art’ C entre, together with the acknowledged quality of the BVI legal framework and the stable political environment offered by a British Overseas Territory, should enable the BVI to rapidly become a leading arbitration hub in Latin America, the Caribbean and beyond. T here are several reasons why the BVI is an ideal jurisdiction for the establishment o f an international arbitration C entre. How

6 ever, one key feature which makes the B
ever, one key feature which makes the BVI the ideal choice for parties wishing to resolve their commercial disputes is the fact that the BVI has a refined, learned, ethical and impartial judiciary. The BVI has highly regarded commercial court from which appeals lie in the first instance to the respected Eastern Caribbean Court of Appeal, with a final right of appeal to the Privy Co uncil in England. All of these courts are well - versed in dealing with complex international commercial disputes. Practitioners can be confident that these same courts 6 / 10 4822 - 6746 - 8357, v. 3 understand the importance of being seen to support, rather than undermine, arbitration. T he BVI courts also have a pro arbitration history and, even before the new Arbitration Act came into force, court proceedings were routinely stayed in favor of arbitration in cases where the parties had provided for resolution of their disputes by arbitrat ion. Thus, the establishment of the BVI IAC seeks to bolster the BVI’s place as a well - respected dispute resolution services jurisdiction . Outside of administering arbitrations, the IAC also aims to promote arbi tration locally and regionally. III. A Case for Cooperation ? The IAC is already operational and accepting cases in a well - run and well - equipped ‘state of the art’ centre. However, as arbitration does not operate in a vacuum and is largely

7 dependent on the effectiveness of the l
dependent on the effectiveness of the local and regional judiciary in many instances, BVI IAC sees it as crucial to its operation that it establishes some level of cooperation with the Caribbean Association of Judicial Officers (CAJO) if it is to achieve its mission and become a hub for dispute resolution. Notwithstanding the intrinsic independence of Arbitral Institutions, local j udiciaries are integral to the process of arbitration. For instance , in the case of the BVI IAC, the BVI Commercial Court acts as its supervisory body. More generally, international commercial arbitration, no less than arbitration within nation - states, whi le conducted in the sphere of private law, is a public legal creation whose operation and effectiveness is inextricably linked to prescribed actions by local judiciaries . The importance of such collaboration can be summed up in the words of England and Wales Supreme Court Judge , the late Lord Mustill who is quoted as having said : 7 / 10 4822 - 6746 - 8357, v. 3 “ Ideally, the handling of arbitrable disputes should resemble a relay - race. In the initial stages… the baton is in the grasp of the court… When the arbitrators take charge they take over the baton and retain it until they have made an award. At this point, having no longer a function to fulfill, the arbitrators hand back the baton so that the court can in case of need lend its

8 coercitive powers to the enforcement of
coercitive powers to the enforcement of the award.” T herefore, considering the integral role that judiciaries often play in the arbitral process , the BVI IAC is keen to collaborate with the Caribbean Association of Judicial Officers ( CAJO ) for the following reasons. First, that the arbitral process needs the par tnership with the courts to ensure its effectiveness. Lord Mustill confirms: “ The old and sterile confrontation between the ‘minimalists’ and the ‘maximalists’ regarding the part to be played by the domestic courts has now given way to a recognition t hat the courts must recognize the essential role of arbitration in international commerce, and give it the maximum permissible support; and a converse recognition that arbitration cannot flourish without that support.” Second, cooperation in all phas es of an arbitration proceeding will contribute to the growing awareness that arbitration yields efficient conclusions, with the extra benefit that accountabili ty may be demanded much sooner than litigation, which has been the traditional method of resolving com mercial disputes. Third, arguably judiciary cooperation with arbitral tribunals is connected with, and a function of, modern arbitration statutes as seen in the BVI Arbitration Act 2013, which arguably discourage isolationist and protectionist tendencies . I n light of the forgoing, one c

9 annot underscore enough the importance o
annot underscore enough the importance of some level of cooperation between the BVI IAC and CAJO. T he BVI IAC strongly believes that collaboration with CAJO can be mutually beneficial and welcomes any manner of collaboration between the two to promote and enhance knowledge of arbitration in the Caribbean region . This may come in the form of 8 / 10 4822 - 6746 - 8357, v. 3 event sponsoring, conference hosting, seminars and other activities t hat we have the capability to host. 9 / 10 4822 - 6746 - 8357, v. 3 Appendix: Clause Parties to a commercial or other agreement who wish to have any future dispute referred to arbitration under the auspices of the BVI IAC can insert an arbitration clause into that agreement. If the parties have not already entered into an arbitration agreement, or if they mutually agree to modify a previous agreement in order to provide for arbitration under the auspices of the BVI IAC, they can enter into an agreement to submit their dispute accord ingly. The BVI IAC is available to provide information pertaining to the drafting of dispute resolution clauses and agreements. Arbitration Administered by the BVI International Arbitration Centre Model Clause "Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with

10 the BVI IAC Arbitration Rules." "The n
the BVI IAC Arbitration Rules." "The number f arbitrators shall be... [one or three]; The place of arbitration shall be.. . [Road Town, Tortola, British Virgin Islands, unless the Parties agree otherwise]; The language to be used in the arbitral proceedings shall be... [language]." Note: arbitrations under the Rules of the BVI IAC may be conducted anywhere in the world and not just at its premises in Tortola 10 / 10 4822 - 6746 - 8357, v. 3 http://www.bviiac.org/Portals/0/Files/Arbitration%20Documents/2016BVIIACArbitratio nClause.pdf Website www.bviiac.org Panel of Arbitrators A key advantage of arbitration, in comparison to traditional litigation, is the opportunity it affords parties to select the arbitrator(s) who will decide their dispute. Unlike domes tic judicial systems where judges are randomly assigned to cases, without due regard to their experience, in arbitration parties can choose arbitrators with qualifications tailored to the needs of their dispute. BVI IAC’s arbitration panel currently featur es over 190 highly regarded international arbitrators and other dispute resolution practitioners, drawn from both common law and civil law jurisdictions, who will be able to conduct arbitrations in a number of languages including English, Spanish, Portugue se, Russian, Chinese, French, German and Italian. http://www.bviiac.org/Dispute - Resolution - Services/Arbi