British Virgin Islands: Recent Developments In Arbitration

On 25 May 2014, BVI became a party to the New York Convention, thereby making awards enforceable in, and committing to enforce awards from over a hundred and sixty jurisdictions worldwide. The Act created the BVI International Arbitration Centre (BVI IAC) as an independent, not-for-profit institution to meet the growing needs for arbitration locally, regionally and globally. The BVI IAC is governed by a Board which is established under the Act.

Shortly after constructing and commencing to operate a world-class arbitration hearing centre in a modern office building, the BVI was hit by one of the strongest hurricanes ever recorded. This inflicted extreme damage throughout BVI and neighbouring countries. While the building housing the IAC was one of the few buildings to survive almost unscathed, the IAC’s momentum and growth were impaired while BVI went through a difficult period of recovery and reconstruction. The IAC became the temporary centre of government and commercial operations, and for over a year the IAC was largely stalled in its progress.

Not long after it recommenced its marketing and growth, the coronavirus pandemic threw another wrench in the works. Coming out of the pandemic, the BVI has its first-class facility, a diverse and strong panel of arbitrators from around the world, a strong profile internationally, regionally and locally, increased local support for arbitration, revised rules, and overall, a wonderful platform to move to the next level.

In 2023, the BVI IAC embarked on somewhat of a shift of course under new leadership. Shan Greer, a well-known international arbitrator, became its Chief Executive Officer and several new initiatives have been embarked upon. Among the new initiatives has been a focus on industries in the region and globally in which arbitration is more commonly used for dispute resolution, and capacity building among private sector and government legal practitioners in BVI and other parts of the Caribbean. The BVI IAC is experiencing growth in its use as an arbitral institution and hearing centre of choice.

An expanded and re-energised independent support organisation for the BVI IAC, the BVI Arbitration Group, comprised of arbitration practitioners in BVI and globally who are committed to arbitration and to the IAC, has modified its focus, creating several sub-committees. These are focused on key industries and operational areas – construction, oil and gas, training and education, communication and promotion of the BVI IAC, law reform, membership, and BVI Arbitration Week 2024.

BVI Arbitration Week will take place from 11 to 15 March 2024. The focus will be on ‘thought leadership’, placing emphasis on the emergence of the BVI as a destination which attracts global minds, talent, and resources specifically for the arbitration world. The event is expected to attract a global audience as well as eminent speakers and thought leaders.

The BVI IAC is one of the few arbitration centres in the region to have signed the Green Pledge of the global Campaign for Greener Arbitrations. The BVI IAC is proud to honour its commitment to conducting arbitrations in efficient and cost-effective ways that have a reduced impact on the environment. In the lead-up to BVI Arbitration Week 2024, the BVI IAC has embarked on a series of activities dubbed “Journey to BVI Arbitration Week 2024: Discover The Leading Edge.” This initiative consists of a series of webinars, in-person events and training focused primarily on construction, oil & gas, insurance, insolvency, and trusts.

The BVI IAC, through its Chief Executive Officer, its former Registrar, the President of its Arbitration Committee and others, contributed to the Caribbean Task Force of the Institute for Transnational Arbitration’s Americas Initiative, and the recently published report and recommendations focused on strengthening arbitration throughout the Caribbean. Among the stated broad objectives of the ITA Caribbean Task Force are to raise awareness of and advance international arbitration practice throughout the Caribbean, as well as to promote good international arbitration practices in the Caribbean. These objectives align with those of the BVI IAC.

BVI has never rested on its laurels in its quest to become an international arbitration centre of choice.  On 16 November 2021 the BVI IAC Arbitration Rules, 2021, came into force. They replaced the BVI IAC Arbitration Rules, 2016, and have been described by Chairman of the Board of the BVI IAC, John Beechey CBE, as “a statement of intent for the future.” The 2021 Rules provide for, among other things, emergency arbitrators to consider applications for urgent relief before the arbitration can get underway (somewhat akin to urgent injunctions in court proceedings), expedited procedures for disputes not exceeding US$ 400,000, tribunal secretaries, and third party funding.

A feature of the 2021 Rules was the establishment of a 20-member Arbitration Committee “to ensure the application of the Rules.” The President of the Committee is the writer of this article, and the Committee is comprised of experienced arbitrators from several jurisdictions including Africa, Europe, the Caribbean, and Hong Kong.

The BVI Courts at all levels have consistently been supportive of arbitration, and enforcement of an arbitration award in BVI, consistent with international standards, is generally straightforward and efficient. Given BVI’s prominence as an international financial centre, with many international companies incorporated in BVI, it is not uncommon for an award creditor to come to BVI seeking to enforce an arbitral award against the award debtor.

The Act contains uniquely robust provisions on confidentiality, and under the Rules, and ordinarily, Court proceedings under the Act are to be heard in Chambers. There are restrictions on reporting proceedings heard otherwise than in open Court, and a prohibition on disclosure of information relating to arbitral proceedings and awards.   

On 31 July 2023, the Eastern Caribbean Supreme Court Civil Procedure Rules (Revised Edition), 2023 came into effect. These new Rules apply to all proceedings filed after 31 July 2023 (subject to transitional provisions). The innovations in the 2023 Rules stand to enhance the settlement of disputes generally, and in particular, arbitration and ADR in BVI. For example, the 2023 Rules specify types of court proceedings for which documents may be served out of the jurisdiction on foreign defendants without the permission of the Court. This is a significant and important practical underpinning to, among other provisions, robust provisions for a wide range of interim measures under the BVI Arbitration Act, which a BVI Court can grant in support of arbitrations occurring anywhere in the world.

The provisions in the 2023 Rules on service of court documents out of the jurisdiction should cover the enforcement of arbitration awards against BVI assets of foreign defendants, as well as BVI proceedings commenced against a foreign defendant, and would extend to various interim measures such as disclosure orders and freezing injunctions. The 2023 Rules also provide for Judicial Settlement Conferences, which is another new provision and should facilitate further alternate means of dispute resolution.

The year 2023 has brought renewed interest in and energy to international arbitration in BVI. The plans and policies that are in place, and the work being done, should enable BVI to continue to ride the rising tide of international arbitration in the Caribbean.

Dancia Penn OBE QC
Dancia Penn is Queen's Counsel and a legal advisor in areas including commercial, corporate, civil, financial services, corporate governance and regulatory matters. Dancia is also an arbitrator and mediator; she serves as President of the BVI Arbitration Committee, and speaks regularly on arbitration, mediation, law and governance. She is also on the Roster of Arbitrators at Arbitration Place, Toronto and the Legal Services Panel of The Government of The Virgin Islands.