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The Arbitration Review of the Americas 2017

BVI International Arbitration Centre

The BVI means business. It aims to repeat the success of its offshore financial services sector: the rise of arbitration in the Caribbean and beyond.

The BVI International Arbitration Centre (BVI IAC), an independent not-for-profit institution, was established pursuant to the Arbitration Act, which came into effect on 1 October 2014, to meet the demands of the international business community for a neutral, impartial, efficient and reliable dispute resolution institution in the Caribbean.

The Act, through which the BVI largely adopted the UNCITRAL Model Law, and the BVI’s accession to the New York Convention on 25 May 2014, are crucial steps, which made possible the establishment of a viable and internationally respected arbitration centre in the BVI.

Lord Goldsmith singled out the BVI IAC as having the potential to become the ‘best thought out and thus most popular’ centre in the Caribbean and beyond.

The BVI IAC expects to be operational and accepting cases in very early 2017. A well-run and well-equipped ‘state of the art’ centre, 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 the leading arbitration hub in Latin America and the Caribbean.

Why arbitrate in the BVI?

The BVI has an excellent new Arbitration Act, based on the UNCITRAL model law

The confidence and transparency brought by having a modern Arbitration Act is a powerful differentiator for the BVI. The Islands’ arbitration laws are impartial, efficient and designed with modern international arbitration in mind and afford parties a speedy dispute resolution mechanism that is enforceable.

The new Arbitration Act gives the parties to arbitration the freedom to select a legal representative of their choice without restriction

There are no restrictions as to where legal counsel must be qualified or their nationality.

Enshrining this right in legislation confirms that the BVI is committed to party choice.

The Arbitration Act gives civil immunity to arbitrators

Arbitrators will have civil immunity for anything done in good faith in the exercise of their powers and performance of their functions as arbitrators. This enables the BVI IAC to attract the best international arbitrators.

BVI’s accession to the New York Convention on 25 May 2014

Following a request from the BVI government to the UK government, the BVI became a party to the New York Convention in May 2014.

Participants in BVI arbitrations will receive awards that will be enforceable in the over 150 contracting states, which have ratified or acceded to the New York Convention.

Strong governmental support

The BVI government is adopting a ‘hands-on’ approach to work with the international arbitration community, the BVI legal services sector and the courts to ensure that the BVI’s offering is the best that it can be.

At the same time, the government has put in place safeguards to ensure that the BVI IAC will perform its functions entirely independent of any executive intervention or other interference.

The BVI has a sophisticated, learned, ethical and impartial judiciary

Arbitration cannot flourish where there is an obstructive, hostile or interventionist judiciary that does not recognise the importance of a supportive, supervisory role in the arbitral process.

The BVI has a 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 Council in England. All of these courts are well-versed in dealing with complex international disputes.

Practitioners can be confident that these same courts understand the importance of being seen to support, rather than undermine, arbitration. The BVI courts have a pro-arbitration history and, even before the new Arbitration Act came into force, court proceedings were routinely stayed in favour of arbitration in cases where the parties had provided for resolution of their disputes by arbitration.

High-quality legal community and Bar Association

Successful arbitration centres need sophisticated and skilled practitioners to conduct and support arbitrations taking place in their jurisdictions. The local legal community is highly experienced and sophisticated in both local, regional and international complex legal matters.

The BVI’s strong reputation as an international financial services centre

The BVI is one of the most stable and prosperous economies in the Caribbean and one of the world’s leading providers of off-shore corporate entities, which play crucial roles in joint venture arrangements, and asset and wealth management pivotal to facilitating global trade and finance.

It is ideally placed to develop a sophisticated domestic and international arbitration centre able to meet the needs of these corporate entities, many of which are critical elements in truly international company structures.

BVI’s existing expertise in financial services

The BVI is exceptionally well placed to develop its reputation as a centre for financial dispute resolution – it has a ready pool of experts, who can hear and argue the most complex of financial disputes.

Outstanding, state-of-the-art facilities

The BVI IAC exceeds the standards now expected in international arbitration, offering skilled administration and comfortable surroundings that are conducive to the efficient and effective conduct of arbitral proceedings.

The International Arbitration Centre

The BVI IAC provides independent, impartial, effective and professional arbitration services specifically designed with international arbitration proceedings in mind.

The Centre is located on the main Island of Tortola, a short taxi ride from the main airport, close to Road Town (Wickham’s Cay II). It occupies two floors in the newest office tower in the heart of the Island. It has ample designated car park and boat docking facilities.

The Centre comprises 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. Additional breakout room space is available upon request on the secretariat floor.

The Centre offers a comfortable lounge area with business facilities for coffee breaks and refreshments. Arbitrators will enjoy the use of a dedicated lounge.

The Centre caters to all arbitration-related professional needs through its concierge service. It will be able to assist with everything from travel arrangements to catering, VIP airport service, accommodation and leisure activities, when it is time to unwind and relax.

The Centre offers free Wi-Fi throughout.

The Board

The five inaugural members of the BVI International Arbitration Centre Board (the BVI IAC Board) were appointed by Cabinet effective 7 September 2015 under section 95 of the Arbitration Act.

They are Mr John Beechey, Mr Mark Forte, Mr Cherno Jallow, QC, Mr Murray Smith and Ms Felice Swapp. Mr John Beechey, former president of the International Court of Arbitration of the International Chamber of Commerce and recently honoured by the Queen on his appointment as Commander of the Order of the British Empire (CBE), serves as chairman.

Members of the BVI IAC Board were selected based on their relevant knowledge, experience and expertise that could aid the BVI IAC in the performance of its functions.

Speaking on the appointments of the board members, Premier D Orlando Smith commented:

The development of the arbitration sector is one of my Government’s priorities as we work towards further growth and diversification of the BVI economy. I am therefore very pleased to welcome the first board members of the BVI International Arbitration Centre. I have every confidence that their respective expertise and insights will be invaluable and very beneficial to the growth and development of the Centre and of arbitration and dispute resolution services in this Territory.

Newly appointed Chairman Beechey commented:

The decision of the Cabinet and the generous endorsement of the Premier are signals of government’s serious intent to promote the establishment of an international arbitration centre in the BVI, which will offer a service of the highest quality and integrity to its users. It is an honour to be asked to serve on this inaugural IAC Board and to have been entrusted, with my colleagues on the Board, with the task of taking forward the development of the new Centre.

Synopsis of the board members

Mr John Beechey CBE (chairman) is an 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 distinguished career in dispute resolution.

Mr Mark Forte is a partner and head of litigation and restructuring in the BVI office of Conyers Dill & Pearman. He specialises in complex cross-border dispute resolution and contentious cross-border insolvency. Mark also advises foreign states, government agencies and liquidators on international asset tracing measures.

Mr Cherno Jallow, QC was Attorney General of the British Virgin Islands from 1999 to 2007. A well-respected and ­proficient legislative draftsman, he was a member and later Chair of the Focus Group established by the BVI Financial Services Commission in 2011 to see to the enactment of modern arbitration legislation for the BVI and related issues. He is currently the director of policy, research and statistics at the BVI Financial Services Commission.

Mr Murray Smith is a chartered arbitrator with extensive experience in commercial litigation and arbitration. He has acted as arbitrator in international commercial arbitrations and has served as chairman, as party appointed arbitrator and as sole arbitrator. 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). He was a founding member and chairman of the North American Branch of the Chartered Institute of Arbitrators from 2005 to 2008 and collaborated with Martin Hunter and Allan Redfern in writing the second edition of the leading text Law and Practice of International Commercial Arbitration.

Ms Felice Swapp is the chief operating officer of Harneys. She joined Harneys in 2013 after working as executive operating director of San Francisco Jazz (SFJAZZ) with responsibilities for fundraising, marketing, education, finance and administration, and the US$65 million SFJAZZ Center construction project. Ms Swapp has a broad background as an engineer, strategic management consultant and business executive.

Conclusion

The BVI is set to become a pre-eminent centre for international arbitration in the Caribbean and beyond. Its location at the crossroads of the Americas, its economic sophistication and political stability, combined with international best practices and state-of-the-art facilities, all have the undoubted potential to transform the BVI into the regional hub for international commercial arbitration. The BVI IAC is well equipped to be the BVI’s vehicle to achieve this aim.