Investment Treaty Arbitration

Investment Treaty Arbitration: Barbados

Overview of investment treaty programme

1. What are the key features of the investment treaties to which this country is a party?

Barbados

BIT Contracting Party or MIT

Substantive protections

Procedural rights

Fair and equitable treatment (FET)

Expropriation

Protection
and security

Most-favoured-nation (MFN)

Umbrella clause

Cooling-off period

Local courts 1

Arbitration

Belgium-Luxembourg (not in force)2

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes (ICSID, UNCITRAL, ICC, LCIA)

Canada (17 January 1997)

Yes

Yes

Yes

Yes

No

6 months

No

Yes (ICSID, UNCITRAL)

China (1 October 1999)

Yes

Yes

Yes3

Yes

No

6 months

Yes

Yes (ICSID, UNCITRAL)

Cuba (13 August 1998)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes (ICC, UNCITRAL)

Germany (11 May 2002)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes (ad hoc, ICSID)

Italy (21 July 1997)

Yes

Yes

No

Yes

No

3 months4

Yes

Yes (ICSID, UNCITRAL6 )

Mauritius (18 June 2005)

Yes

Yes

Yes6

Yes

No

6 months

Yes

Yes (ICSID, UNCITRAL)

Switzerland (22 December 1995)

Yes

Yes

Yes7

Yes

Yes

12 months

No

Yes (ICSID)

United Kingdom (7 April 1993)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes (ICSID)

Venezuela (31 October 1995)

Yes

Yes

Yes

Yes

Yes

No

No

Yes (ICSID AFR, UNCITRAL)

FTAs/EPAs

Substantive protections

Procedural rights

Fair and equitable treatment (FET)

Expropriation

Protection and security

Most-favoured-
nation (MFN)

Umbrella clause

Cooling-off period

Local courts 5

Arbitration

CARICOM8 -Costa Rica (10 March 2011)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes (ICSID, UNCITRAL)

CARICOM-Cuba Cooperation Agreement (1 January 2001)

Yes

Yes

Yes9

Yes

Yes

3 months

Yes

Yes (ad hoc, UNCITRAL)

CARICOM-Dominican Republic (not in force)10

No

No

No

No

No

No

No

No

CARICOM Single Market (4 February 2002)

No11

No

No

Yes

No

No

No

No

CARICOM Treaty (1 August 1973)

No

No

No

No

No

No

No

No

CARICOM-US (28 May 2013)12

No

No

No

No

No

No

No

No

CARICOM-Venezuela (1 January 1993)

No

No

No

No

No

No

No

No

CARIFORUM-EC (not yet in force but provisional application)13

No

No

No

Yes

No

No

No

No

COTONOU Agreement (1 April 2003)14

No

No

No

No

No

No

No

No

Qualifying criteria - any unique or distinguishing features?

2. What are the distinguishing features of the definition of “investor” in this country’s investment treaties?

Barbados

Issue

Distinguishing features in relation to the definition of ‘investor’

Seat of the investor / place of business

While most Barbadian investment treaties provide that a juridical person incorporated or duly constituted under the laws of a Contracting Party qualifies as an investor, some treaties establish further requirements. The Belgium-Luxembourg Economic Union (BLEU) and Italy BITs determine that entities have their registered office in the territory of a Contracting Party.15 The China BIT further requires juridical persons to be domiciled in the territory of China. The Cuba BIT provides that entities covered are those that are ‘established in its territory and recognised by it’.

Active business requirement

The Switzerland BIT requires that in order to qualify as an ‘investor’, a juridical person is ‘engaged in active business’ in the Contracting Party whose nationality it seeks to invoke. The CARICOM-Costa Rica FTA mandates that a juridical person ‘carries on business’ in the Contracting Party. Such requirements are not contained in other investment treaties concluded by Barbados.

Incorporation in a third state

Most of Barbados’ investment treaties protect juridical persons incorporated in one of the Contracting Parties (eg, the BLEU, Canada, Cuba, UK and Venezuela BITs and the CARICOM-Costa Rica FTA). The Switzerland BIT also protects juridical persons established under the law of a third State, as long as they are directly or indirectly controlled by natural or legal persons who have the nationality of Switzerland or Barbados.

Dual nationals

The majority of Barbados’ investment treaties do not contain specific provisions governing the dual nationality of investors. Under the Canada BIT, on the other hand, juridical persons who are dual nationals of the Contracting Parties are not allowed to bring a claim (ie, the enterprise seeking protection may not have the nationality of the host State).

Permanent residents

All but two Barbados’ investment treaties include only nationals and citizens of a Contracting Party in their definition of investor. By contrast, the Canada BIT and the CARICOM-Cuba Co-operation Agreement also extend their protection to permanent residents.

3. What are the distinguishing features of the definition of "investment" in this country’s investment treaties?

Barbados

Issue

Distinguishing features in relation to the concept of ‘investment’

Eligible assets

Most Barbadian investment treaties define ‘investment’ to include ‘every kind of asset’; sometimes with the addition that it should be owned or controlled or invested by investors of one Contracting Party in accordance with the laws and regulations of the other Contracting Party’ (eg, the Canada, China, Mauritius, and Venezuela BITs and the Costa Rica FTA). The term ‘investment’ is often further defined by reference to a non-exhaustive list of assets.

Indirect control of assets

Two Barbadian BITs expressly include in the definition of ‘investments’ assets controlled indirectly by an investor of a third State (BLEU and Canada), while all Barbadian FTAs are silent on this point.

Exclusion of certain assets

The Canadian BIT expressly excludes from the definition of ‘investment’ certain types of assets such as real estate or other property not acquired for the purpose of economic benefit or other business purpose.

Commencement of treaty protection

Most Barbadian investment treaties contain provisions which protect investments made before as well as after the investment treaties entered into force (the BLEU, Canada, China, Germany, Mauritius, and Switzerland BITs and the CARICOM-Cuba Cooperation Agreement). A number of investment treaties limit their retroactive effect by providing they do not extend to disputes arising out of events occurring or claims that were settled before the investment treaty entered into force (eg, the BLEU and Venezuela BITs and the CARICOM – Cuba Co-operation Agreement).

Form of investment

While most Barbadian investment treaties stipulate that changes in the form of an investment do not affect their character as investment, the China and Switzerland BITs and the CARICOM – Cuba Co-operation Agreement are silent on this point.

Substantive protections - any unique or distinguishing features?

4. What are the distinguishing features of the fair and equitable treatment standard in this country’s investment treaties?

Barbados

Issue

Distinguishing features of the fair and equitable treatment standard

Illustrations of the FET standard

Most Barbadian BITs, the CARICOM-Costa Rica FTA and the CARICOM-Cuba Co-operation Agreement simply provide that each Contracting Party shall accord investments by investors from the other contracting State(s) fair and equitable treatment. By contrast, the Canada and Venezuela BITs expressly equate the obligation to ensure fair and equitable treatment with the concept of fair and equitable treatment under customary international law. The CARICOM-Cuba Co-operation Agreement links the obligation to provide fair and equitable treatment to the concept of fair and equitable treatment under the domestic law of the Contracting Parties.

Scope

The majority of Barbadian BITs limit the fair and equitable treatment standard to ‘investments of investors of the other Contracting Party’. The Mauritius and China BITs also extend fair and equitable treatment to ‘activities associated with investments’ and the Canada BIT also covers ‘returns of investors’.

Exceptions to the FET standard

Generally, Barbados BITs do not impose limitations on the fair and equitable treatment standard. However, the Canada BIT provides that the fair and equitable treatment standard does not apply to, for example, the procurement by a government or State enterprise.

5. What are the distinguishing features of the protection against expropriation standard in this country’s investment treaties?

Barbados

Issue

Distinguishing features of the ‘expropriation’ standard

Scope of protection

In most Barbadian investment treaties, the expropriation standard is non-exhaustive and includes protection against expropriation, nationalisation or any other measure of the same nature or having similar effect (the BLEU, Canada, China, Cuba, Italy, Mauritius, Switzerland, United Kingdom and Venezuela BITs, the CARICOM-Costa Rica FTA and the CARICOM-Cuba Cooperation Agreement). The Canada BIT exempts environmental measures under certain circumstances, as well as investments in cultural industries. Only two out of nine FTAs signed by Barbados (CARICOM-Cuba Cooperation Agreement and CARICOM-Costa Rica FTA) directly address the issue of expropriation.

Expropriation in accordance with ‘due process of law’

Most Barbadian investment treaties that address the issue of expropriation require that any expropriation must occur under due process of law (eg, CARICOM-Costa Rica FTA and CARICOM-Cuba Cooperation Agreement, and the Canada, Germany and Switzerland BITs). By contrast, the China and Mauritius BITs simply require that the expropriation occur in accordance with ‘domestic legal procedure’ and the Italy BIT mandates that it take place ‘in conformity with all legal provisions and procedures’. A number of Barbadian investment treaties make no reference to expropriation measures in accordance with due process of law or domestic legislation (eg, the BLEU, Cuba, United Kingdom and Venezuela BITs).

Interest rates

Most Barbadian investment treaties that address the issue of expropriation provide for interest to be paid at ‘a normal commercial rate’ (eg, the BLEU, and Canada BITs and the CARICOM-Cuba Cooperation Agreement) or the ‘current commercial lending rate’ (the China and Mauritius BITs). The CARICOM-Costa Rica FTA refers to interest ‘based on the average deposit rate prevailing in the national banking system of the Party where expropriation was made’, the Italy BIT provides for interest at the LIBOR rate and the Germany BIT refers to the ‘usual bank interest’.

6. What are the distinguishing features of the national treatment/most-favoured-nation treatment standard in this country’s investment treaties?

Barbados

Issue

Distinguishing features of the ‘national treatment’ and/or ‘most favoured nation’ standard

Scope of MFN treatment

Generally, the MFN protection contained within Barbados’ investment treaties applies to investments and returns of investments. The Italy BIT speaks of ‘income accruing to’ investments, rather than ‘returns’. Its Protocol extends the MFN standard to ‘investment related activities concerning the procurement, sale and transport of raw and processed materials, energy, fuels, instrumental goods, as well as any other kind of related operation which is in any way connected with the entrepreneurial activities governed by’ the BIT. The MFN treatment enshrined in the China, Mauritius and Switzerland BITs also covers activities in connection with investments. A number of BITs (eg, BLEU, Canada, Cuba, United Kingdom and Venezuela) extend the MFN treatment standard to the ‘management, maintenance, use, enjoyment or disposal of their investments’. The MFN treatment in the Canada BIT also covers the permission for the acquisition and establishment of business enterprises or shares of enterprises.

Exceptions to MFN treatment

All Barbados BITs, the CARICOM-Costa Rica FTA and the CARIFORUM-EC EPA provide that the provision of ‘most favoured nation’ and/or ‘national’ treatment to an investment does not extend to the benefits of membership of a customs union, economic union, free trade area nor to taxation agreements and/or taxation legislation. The China BIT further excludes from the scope of application of the MFN standard agreements aimed at facilitating frontier trade. The Canada BIT also precludes invocation of the MFN standard to a number of agreements such as those relating to aviation, telecommunications, fisheries, maritime matters and financial services.

International law and domestic legislation

Most Barbados BITs (eg, BLEU, Cuba, Germany, Italy, Switzerland, United Kingdom and Venezuela) provide that national law provisions of either Contracting Party or international law obligations entitling investments to treatment more favourable than that provided for by the BIT shall prevail over the provisions of the relevant BIT. The China and Mauritius BIT only provide that more favourable domestic legislation (and not international law) shall prevail over the provisions of the respective BIT.

Scope of national treatment

Generally, the national treatment protection contained within Barbados’ BITs applies to investments and returns of investments. Only five Barbados BITs (BLEU, Canada, Cuba, United Kingdom and Venezuela) extend the national treatment standard to the ‘management, maintenance, use, enjoyment or disposal of their investments’. The Protocol to the Italy BIT extends the national treatment standard to investment-related activities concerning the procurement, sale and transport of raw and processed materials, energy, fuels, instrumental goods, as well as any other kind of related operation which is in any way connected with the entrepreneurial activities governed by the BIT.

Exceptions to national treatment

Some BITs provide that the benefits derived from the membership of a customs union, economic union, free trade area or taxation agreements/ legislation cannot be imported via the national treatment standard (eg, BLEU and Cuba). Importantly, the Canada BIT provides that the national treatment standard cannot be invoked in relation to a number of measures, including those relating to aboriginal rights (Canada only), certain ownership restrictions of existing State enterprises (both Barbados and Canada), and certain nationality restrictions imposed by either Contracting Party on the composition of the board of directors of an enterprise covered by the BIT.

7. What are the distinguishing features of the obligation to provide protection and security to qualifying investments in this country’s investment treaties?

Barbados

Issue

Distinguishing features of the ‘protection and security’ standard

Extent of obligations

Several Barbadian BITs stipulate that investments shall be accorded ‘full protection and security’ (eg, BLEU, Canada, Cuba, Germany, United Kingdom and Venezuela) while some simply provide for ‘protection’ (such as China and Mauritius). Only two Barbadian FTAs contain a protection and security clause (CARICOM-Costa Rica FTA and CARICOM-Cuba Cooperation Agreement).

Scope of obligation

Most of Barbados’ investment treaties only provide protection to ‘investments’ (eg, the BLEU, Cuba, Germany, Switzerland, United Kingdom and Venezuela BITs). Some investment treaties include ‘investments and activities associated with investments’ (eg, the China and Mauritius BITs) or ‘investments and returns’ (Canada BIT). The CARICOM-Costa Rica FTA offers the widest range of protection to investors by providing protection to ‘investments’ as well as to ‘returns from investments and in the event of their re-investment the return therefrom’.

8. What are the distinguishing features of the umbrella clauses contained within this country’s investment treaties?

Barbados

Issue

Distinguishing features of any ‘umbrella clause’

Scope

The majority of Barbados’s investment treaties contain an umbrella clause (eg, BLEU, Cuba, Germany, Switzerland, UK and Venezuela BITs, the CARICOM-Costa-Rica FTA and the CARICOM-Cuba Co-operation Agreement). Four BITs (Canada, China, Italy and Mauritius), the CARICOM-Dominican Republic FTA, the CARICOM Single Market, the CARICOM-US TIFA, the CARICOM Treaty, the CARICOM-Venezuela FTA, the CARIFORUM-EC EPA and the COTONOU Agreement do not contain an umbrella clause.

Qualification of the obligation

In the Venezuela BIT, the umbrella clause only applies to obligations entered into by the host State with regard to the ‘treatment of investments’.

9. What are the other most important substantive rights provided to qualifying investors in this country?

Barbados

Issue

Other substantive protections

Free transfer of payments

All Barbadian BITs and the CARICOM-Costa Rica FTA, the CARICOM Single Market and the COTONOU Agreement contain a provision which requires the Contracting Parties to permit investors to transfer investments and investment returns freely. Some investment treaties make this protection subject to the laws and regulations of the host State, including those concerning bankruptcy (eg, the Canada and Mauritius BITs and the CARICOM-Costa Rica FTA). Under the Italy BIT, the host State can partially suspend the obligation should it suffer serious balance of payment difficulties. The Cuba and Italy BITs make the obligation to guarantee free transfer of payments conditional on the payment of outstanding taxes in the host State.

Nationality requirements

The Canada BIT provides that a Contracting Party may not require that an enterprise that qualifies as an investment under the BIT ‘appoint to senior management positions individuals of any particular nationality.’ It may, however, ‘require that a majority of the board of directors, or any committee’ of such an enterprise be of a particular nationality or resident in the territory of the Contracting Party, as long as the requirement ‘does not materially impair the ability of the investor to exercise control over its investment’. Such a provision is not contained in any of Barbados’ other investment treaties.

Protection from purchase and production requirements

The Canada BIT provides that the Contracting Parties may not impose requirements relating to export percentage, domestic content percentage, purchase of domestically produced goods or services, the ratio between import and export volume or value or technology transfer.

Non-impairment

The majority of Barbadian investment treaties impose upon Contracting Parties an obligation not to impair the management, maintenance, use, enjoyment or disposal of investments (CARICOM-Costa Rica FTA, CARICOM-Cuba Co-operation Agreement, and the BLEU, Cuba, Germany, Italy, Switzerland, the United Kingdom and Venezuela BITs). Three Barbadian BITs (Canada, China and Mauritius), the CARICOM Single Market, the CARICOM Treaty, the CARICOM Dominican Republic FTA, the CARICOM-US TIFA, the CARICOM-Venezuela FTA, the CARIFORUM-EC EPA and the COTONOU Agreement do not contain a non-impairment clause.

Armed conflict/ civil unrest

Most of Barbados’ investment treaties provide for compensation for losses arising out of events such as armed conflict or a state of emergency. The scope of protection varies. In most cases, compensation or other settlement shall be no less favourable than that which the Contracting Party grants to its own investors or to the investors of the most favoured nation (CARICOM-Costa Rica FTA, CARICOM-Cuba Cooperation Agreement, and the BLEU, Canada, Cuba, Germany, Italy, Mauritius, Switzerland, United Kingdom and Venezuela BITs). Compensation under the China BIT must be no less favourable than that accorded to investors of third States (but there is no mention of its own investors as comparators).

Compensation for losses due to natural disaster

The Canada BIT is the only Barbadian investment treaty expressly to include ‘natural disaster’ in the clause on compensation for losses.

Transparency

Many of Barbados’ investment treaties contain provisions designed to achieve and maintain transparency, to encourage information exchange and to harmonise trade procedures (the Canada and China BITs, the CARICOM-Cuba Co-operation Agreement and the CARIFORUM-EC EPA).

General exceptions

The Canada BIT provides that ‘investments in cultural industries are exempt’ from the protections envisaged under the treaty. Cultural industries are defined as the publication or distribution of books, magazines, newspapers, video and audio recordings, and any radio, television, cable or satellite broadcasting. The Canada BIT and the CARICOM-Cuba Co-operation Agreement state that nothing shall prevent the enforcement of measures required to preserve the environment.

Procedural rights in this country’s investment treaties

10. Are there any relevant issues related to procedural rights in this country’s investment treaties?

Barbados

Issue

Procedural rights

Cooling-off period / amicable settlement

While most Barbadian BITs, the CARICOM-Costa Rica FTA and the CARICOM-Cuba Co-operation Agreement provide for a cooling-off period which ranges between 3 and 6 months, the Switzerland BIT calls for a longer cooling-off period of 12 months. The Venezuela BIT, on the contrary, does not provide for a cooling-off period.

Fork-in-the-road provisions

Two Barbados BITs (Canada and Mauritius), the CARICOM-Costa Rica FTA and the CARICOM-Cuba Co-operation Agreement contain traditional fork-in-the-road provisions. That is, investors must elect either to pursue their claims through the local courts or by international arbitration. They cannot do both. The BITs with Italy, Switzerland and the United Kingdom, and the CARICOM-Costa Rica FTA provide that once the controversy has been referred to international arbitration, the dispute may no longer be pursued through diplomatic means, unless ICSID determines that it does not have jurisdiction or the proceedings are concluded (Italy BIT and CARICOM-Costa Rica FTA).

Exhaustion of local remedies

While most Barbadian BITs are silent about the obligation to exhaust local remedies, the BLEU and China BITs expressly state that there is no need to exhaust local remedies before initiating international arbitration.

Investor-state dispute settlement

Most Barbadian investment treaties offer the investor a choice of different dispute settlement fora. The CARICOM-Costa Rica FTA and all Barbadian BITs except for the one with Cuba provide for ICSID arbitration. The Italy, Switzerland, United Kingdom and Venezuela BITs provide for ICSID conciliation. Under the BITs with Canada and Venezuela, the investor may refer a dispute to the ICSID Additional Facility Rules. The BITs with BLEU, Canada, China, Cuba and Mauritius, the CARICOM-Costa Rica FTA and the CARICOM-Cuba Co-operation Agreement also provide for international arbitration under the UNCITRAL Rules in the territory of a Contracting Party to the New York Convention. The BLEU BIT provides for international arbitration under the LCIA rules, the Cuba BIT grants investors access to the Court of Arbitration of the ICC and the Germany BIT and the CARICOM-Cuba Co-operation Agreement offer the possibility of ad hoc arbitration.

Time limits

The Canada BIT stipulates that arbitration can only be commenced if ‘not more than three years have elapsed from the date on which the investor first acquired, or should have first acquired, knowledge of the alleged breach and knowledge that the investor has incurred loss or damage.’

Counterclaims

The BLEU, China and Italy BITs provide that a Contracting Party may not use as a counterclaim the fact that the investor has received compensation covering its losses.

Applicable law

Barbadian investment treaties which provide a right to refer a dispute to ICSID are generally silent as to what law or laws are to govern the parties’ dispute. Exceptions to this are the CARICOM-Costa Rica FTA and the China and Mauritius BITs which provide that the tribunal shall decide the dispute in accordance with the treaty, the national laws of the Party where the investment was made (including conflict-of-laws rules) and applicable rules of international law. The Canada BIT stipulates that a tribunal established under the BIT shall decide the dispute only in accordance with the BIT and applicable rules of international law. Where the investment treaty is silent, however, the applicable law (in an ICSID arbitration) is likely to be determined in accordance with Article 42 of the ICSID Convention, which provides that the tribunal shall apply the law of the Contracting State party to the dispute, including its rules on the conflicts of laws and such rules of international law as may be applicable.

Preliminary issues

The Canada BIT is the only Barbadian investment treaty that grants an arbitral tribunal the power to deal with ‘interim measures of protection to preserve the rights of a disputing party, or to ensure that the tribunal’s jurisdiction is made fully effective, including an order to preserve evidence in the possession or control of a disputing party or to protect the tribunal’s jurisdiction.’ However, a tribunal ‘may not order attachment, or enjoin the application of the measure alleged to constitute a breach’ of the BIT.

Connection to other international instruments

Several Barbadian BITs (eg, BLEU, China, Canada and Mauritius) provide that non-ICSID arbitration is to take place in a State that is a State party to the New York Convention.

Subrogation

The principle of subrogation is provided for in all Barbadian BITs, in the CARICOM-Costa Rica FTA and in the CARICOM-Cuba Co-operation Agreement.

Use of MFN to expand procedural rights

Some Barbadian BITs expressly provide that the MFN treatment standard encompasses investor-State dispute settlement procedures or mechanisms (eg, BLEU, United Kingdom and Venezuela).

11. What is the status of this country’s investment treaties?

Barbados

Consistent with investment treaty practice, Barbados’ investment treaties can be unilaterally terminated by a Contracting Party at any time after the end of the initial term of the treaty (either 10 or 15 years) by giving one year’s written notice of the termination. This is usually coupled with a so-called ‘survival clause’, whereby Barbadian BITs apply after termination of the BIT to investments made when the BIT was in force. The period for which such investments are protected varies between ten years (China, Mauritius and Venezuela), 15 years (Canada) and 20 years (Belgium-Luxembourg, Cuba, Germany, Italy and the United Kingdom). An exception in this regard is the Switzerland BIT, where the treaty is renewed for two years at a time unless notice is given six months ahead of the expiry of each two-year period. There is no available information suggesting that Barbados is turning away from investment treaties or investor-State dispute settlement, as some other countries have indicated. To the contrary, some treaties entered into by Barbados are of a relatively recent date and provide for investor-State arbitration, eg, with Mauritius in 2004 and with BLEU in 2009.

Practicalities of commencing an investment treaty claim against this country

12. To which governmental entity should notice of a dispute against this country under an investment treaty be sent? Is there a particular person or office to whom a dispute notice against this country should be addressed?

Barbados

Government entity to which claim notices are sent

None of the Barbadian investment treaties provide details as to where notices should be served. Absent information to the contrary, the notice should be addressed to the Prime Minister, the Foreign Minister, the Attorney General and the Solicitor General of Barbados.

13. Which government department or departments manage investment treaty arbitrations on behalf of this country?

Barbados

Government department which manages investment treaty arbitrations

The Attorney General’s Chambers has managed on behalf of the Government of Barbados the one investment treaty claim thus far known to have been brought against Barbados.

14. Are internal or external counsel used, or expected to be used, by the state in investment treaty arbitrations? If external counsel are used, does the state normally go through a formal public procurement process when hiring them?

Barbados

Internal/external Counsel

The Attorney General is authorised to represent the Government of Barbados in international arbitration. The Solicitor General and external counsel may also be retained to represent the Government of Barbados (as it has done in the one claim thus far brought against Barbados).

Practicalities of enforcing an investment treaty claim against this country

15. Has the country signed and ratified the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965)? Please identify any legislation implementing the Washington Convention.

Barbados

Washington Convention implementing legislation

Barbados signed the Washington Convention on 13 May 1981. It ratified the Washington Convention on 1 November 1983. The Washington Convention entered into force for Barbados on 1 December 1983.

16. Has the country signed and ratified the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (the New York Convention)? Please identify any legislation implementing the New York Convention.

Barbados

New York Convention implementing legislation

Barbados acceded to the New York Convention on 16 March 1993.

1980 Arbitration (Foreign Arbitral Awards) Act, Cap.110A of 1980.

17. Does the country have legislation governing non-ICSID investment arbitrations seated within its territory?

Barbados

Legislation governing non-ICSID arbitrations

The 2007 International Commercial Arbitration Act establishes a framework for international commercial arbitration by adopting the UNCITRAL Model Law on International Commercial Arbitration.

18. Does the state have a history of voluntary compliance with adverse investment treaty awards; or have additional proceedings been necessary to enforce these against the state?

Barbados

Compliance with adverse awards

No publicly available awards have been rendered against Barbados under investment treaties. A claim brought by a Canadian investor against Barbados in relation to a bird sanctuary is presently being determined.

19. Describe the national government’s attitude towards investment treaty arbitration

Barbados

Attitude of government towards investment treaty arbitration

There is no information indicating that the Government of Barbados has an adverse attitude towards investment treaty arbitration as a means of dispute settlement.

20. To what extent have local courts been supportive and respectful of investment treaty arbitration, including the enforcement of awards?

Barbados

Attitude of local courts towards investment treaty arbitration

It is unknown whether Barbadian courts have ever been called upon to enforce an investment treaty award against Barbados. There is at present very little information available on the attitude of Barbadian courts as regards the enforcement of international investment or commercial arbitral awards.

National legislation protecting inward investments

21. Is there any national legislation that protects inward foreign investment enacted in this country? Describe the content.

Barbados

National legislation

Substantive protections

Procedural rights

FET

Expropriation

Other

Local courts

Arbitration

Barbados Companies Act, Cap. 308, sections 324-346

No

No

No

Yes

No

International Commercial Arbitration Act15

No

No

No

No

Yes

National legislation protecting outgoing foreign investment

22. Does the country have an investment guarantee scheme or offer political risk insurance that protects local investors when investing abroad? If so, what are the qualifying criteria, substantive protections provided and the means by which an investor can invoke the protections?

Barbados

Relevant guarantee scheme

Qualifying criteria, substantive protections provided and practical considerations

Multilateral Investment Guarantee Agency

Barbados has ratified the Convention establishing the Multilateral Investment Guarantee Agency (MIGA) (12 April 1988).

Under this treaty Barbadian nationals and corporates are eligible to acquire, for the payment of a premium, political risk insurance from MIGA in respect of investments made in certain developing States provided that certain conditions are met. To be eligible for assistance, the investment must be medium to long term in nature, support the host country’s development goals, comply with MIGA’s Policy on Social and Environmental Sustainability and anti-corruption and fraud standards, and also be financially viable.

Awards

23. Please provide a list of any available arbitration awards or cases initiated involving this country’s investment treaties.

Barbados

No publicly available award has been rendered against Barbados under an investment treaty.

Awards

 

Pending Proceedings

Peter A. Allard (Canada) v. The Government of Barbados (PCA Case No. 2012-06)

Reading List

24. Please provide a list of any articles or books that discuss this country’s investment treaties.

Barbados

Bureau of Economic and Business Affairs, ‘2013 Investment Climate Statement – Barbados’, February 2013, available at: www.state.gov/e/eb/rls/othr/ics/2013/204600.htm (accessed 13 January 2015).

Notes

1 The answer ‘yes’ indicates that the treaty in question expressly grants an investor the right to bring a dispute under the treaty before local courts while ‘no’ means that the right to use local courts is not express in the treaty and therefore subject to domestic law.

2 The Belgium-Luxembourg – Barbados BIT was signed on 29 May 2009.

3 The China BIT only mentions ‘protection’.

4 Only for disputes relating to nationalisation or expropriation.

5 The consent to UNCITRAL arbitration is limited to disputes not relating to nationalisation or expropriation, article 9(4). In the event of UNCITRAL arbitration, the Stockholm Chamber of Commerce is designated as the appointing authority, with arbitration proceedings to take place in Stockholm unless otherwise agreed by the parties.

6 The Mauritius BIT only mentions ‘protection’.

7 The Switzerland BIT only mentions ‘protection’.

8 The CARICOM Member States are Antigua and Barbuda, The Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, St Lucia, St Kitts and Nevis, St Vincent and the Grenadines, Suriname, and Trinidad and Tobago. The CARICOM Associate Members are Anguilla, Bermuda, British Virgin Islands, Cayman Islands, and Turks and Caicos Islands.

9 The CARICOM-Cuba Co-operation Agreement only mentions ‘protection’.

10 The CARICOM-Dominican Republic FTA was signed on 22 August 1998.

11 There is no explicit reference to the fair and equitable treatment standard. However, the agreement does mention non-discrimination in article 7.

12 This Agreement supersedes the Agreement Between the Government of the United States of America and the Caribbean Community (CARICOM) Concerning a United States-CARICOM Council on Trade and Investment concluded in Washington on 22 July 1991.

13 The CARIFORUM-EC EPA was signed on 15 October 2008. It entered into provisional application in December 2008. Barbados has fully implemented all of the provisions of the agreement.

14 The COTONOU Agreement was signed between the members of the African, Caribbean and Pacific Group of States and the European Union and its Member States.

15 While this applies to both Italian and Barbadian companies under the Italy-Barbados BIT, it only applies to Belgian and Luxembourgian entities under the BLEU-Barbados BIT.

16 The International Commercial Arbitration Act 2007 states in its Article 3 that the Act applies to international commercial arbitration, subject to any agreement in force between Barbados and any other State or States. It further notes that ‘the term ‘commercial’ shall be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not and relationships of a commercial nature include’ ‘(x) investment’.

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