Once the United Nations Commission on International Trade Law (UNCITRAL) Model Law is enacted in The Bahamas, parties to arbitration will have the right to be represented by a legal practitioner of their choice. For that reason, according to Minister of Foreign Affairs and Immigration Fred Mitchell, the government intends to "consider" immigration reforms which will allow parties to arbitration the right to be represented by legal practitioners, and appoint arbitrators of their choice.
The matter is a sensitive one, with a clear desire by the government to allow more foreign lawyers into the jurisdiction with less impediments and an equally clear stance taken by the Bahamas Bar Association that the process in place now is sufficient. It has been the subject of a debate in the press between successive ministers of financial services and the president of the Bar Association.
Mitchell spoke at a Critical Assessment Workshop On UNCITRAL Model Law and the Bahamas Arbitration Act 2009 hosted by the Ministry of Financial Services and UNCITRAL on the weekend. Timothy Lemay, principal legal officer of UNCITRAL, was in town to conduct UNCITRAL's first arbitration workshop in The Bahamas and the Caribbean.
Coordination
Mitchell explained that, in line with the Ministry of Financial Services' mandate to create an international arbitration center in The Bahamas, the Ministry of Foreign Affairs is now completing the final diplomatic procedural steps required by the government of the Netherlands for The Bahamas to become a member state of the Permanent Court of Arbitration.
"The Permanent Court of Arbitration state membership is a timely and positive development," Mitchell said.
"South-south trade within the emerging markets, particularly those in Africa, the Americas and the Pacific countries is expected to grow. Due to its strategic geographic position, The Bahamas therefore has the potential to serve as a Caribbean host country for the administration of Permanent Court of Arbitration disputes. Additionally, the Permanent Court of Arbitration can provide cutting edge training and education courses that will help strengthen the work of arbitrators in The Bahamas."
He added that since The Bahamas is one of the leading financial centers in the region and a major maritime stakeholder within the ship registration industry, the Ministry of Foreign Affairs and Immigration recognizes the necessity for The Bahamas to have international arbitration laws that are certain and predictable.
"This will require our present Arbitration Act, 2009 to be repealed and replaced by the UNCITRAL Model Law in its entirety, which is designed to provide the legislative infrastructure to accomplish such objective. My Ministry is also cognizant of the fact that upon the enactment of the UNCITRAL Model Law in the jurisdiction of The Bahamas, parties to arbitration will have the right to be represented by a legal practitioner of their choice.
"The Government of The Bahamas will therefore consider immigration reforms which will allow parties to arbitration the right to be represented by legal practitioners, and appoint arbitrators of their choice," he confirmed.
Judicial dialogue and workshop
On behalf od Financial Services Minister Hope Strachan, Legal Officer Michelle Ryan addressed the workshop on the matter of legislative flexibility. She noted that one of the essential elements Strachan has said are required to make The Bahamas a state of the art international arbitration centre is the need for policy makers to ensure the harmonization of local arbitration laws with those in other jurisdictions and international law norms.
"Such legal harmonization is made possible through the adoption of the UNCITRAL Model law," Ryan said, adding that legislation based on the Model Law have been adopted in 70 States in a total of 100 jurisdictions, confirming its acceptance as a transnational instrument.
She also argued that foreign investors have greater confidence to arbitrate in a jurisdiction whose laws they are familiar with, and the enactment of the Model Law brings such security.
"This is heightened when a jurisdiction develops a reputation for accurately interpreting the Model Law in line with international norms. For these reasons, the Ministry of Financial Services has taken a keen position to advocate for the enactment of the Model Law early next year and to ensure that this UNCITRAL practitioner's workshop is the first of a series of on-going training in international arbitration made available to the legal profession and other professionals."
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