New Initiative Will Assist Development And Use Of Arbitration In The Caribbean

The timing for this initiative is ideal. There has been a significant growth in arbitration interest and development in several Caribbean jurisdictions in the past decade, and greater interest in the Caribbean by leading international arbitral institutions and organisations.

Conferences, courses and webinars on arbitration have increased; training and awareness-raising activities have been growing among litigation and transactional lawyers, businesspeople, judiciaries, and others; jurisdictions have been modernising their arbitration laws; arbitral institutions have been and are being established in several leading jurisdictions, and generally there has been a growing awareness of the value of arbitration for dispute resolution and to help ground economic development.

Importantly, international arbitration organisations and institutions are taking a greater interest in the Caribbean as a distinct region. Increasingly, they are recognising it as a region separate from North America and Latin America, with somewhat different needs and resources (human, natural and economic).

The Caribbean is mostly composed of small island states but also countries that are on continents (Guyana and Suriname in South America, and Belize in Central America). The region includes both common law and civil law traditions, multiple languages and legal cultures, and somewhat different economies.

Also, the Caribbean region faces somewhat different challenges than many other parts of the world, including its particular susceptibility to the effects of climate change (notably from hurricanes and other consequences of warmer and higher seas). A recent example of the value of a separate recognition of the Caribbean was the decision of the Campaign for Greener Arbitrations to establish a separate Caribbean committee, distinct from the Latin American and North American committees.

The Caribbean region includes many jurisdictions, so there will be many international disputes that can be resolved through international arbitration. Also, there is growing cross-border commercial activity among businesses in the various jurisdictions, including by SMEs (small and medium enterprises). The fact that national court systems are overloaded means that a vibrant arbitration system, with its flexibility, will benefit the courts of the Caribbean and free up resources for court matters for which arbitration is not an option.

This article describes ITA and its Americas initiative, the objectives of the Caribbean Task Force, the Task Force’s approach to developing its Working Plan and advising ITA on further actions, projects, and opportunities, and six potential areas in which the Task Force may have a role. 

ITA And Its Americas Initiative

ITA is an international arbitration organisation, founded in 1986, and based in an academic institution, The Center for American and International Law. It is focused on the development of arbitration capacity in the US, Latin America, and now the Caribbean[ii], with other types of initiatives being developed for Canada.

It was created to educate business executives, government officials and lawyers about arbitration as a means of resolving transnational business disputes and to promote global adherence to the world’s principal arbitration treaties. Through its programmes, scholarly publications and membership activities, ITA has become an important global forum on contemporary issues in the field of transnational arbitration.

Its annual ITA Workshop in Texas each June is a leading conference in the field in the United States. It presents other workshops and conferences, in some instances in conjunction with other arbitration organisations, throughout the year.

Also, it is involved in publishing, including as a founding sponsor of KluwerArbitration.com[iii] and through the Scoreboard of Adherence to Transnational Arbitration Treaties[iv], a comprehensive, regularly updated report on the status of every country’s adherence to the primary international arbitration treaties. ITA’s educational videos and books are produced through its Academic Council to aid professors, students, and practitioners of international arbitration.

ITA’s Americas Initiative has been focused on Latin America since 2003. It has enjoyed considerable success in its work there. ITA has contributed to generating a vibrant arbitration community in Latin America through (i) the creation of the list server “ITA Latin American Arbitration Forum (ITAFOR)” – a leading online forum along with The Latin American Association of Arbitration (ALARB) and the Comitê Brasilero de Arbitragem (CBAr) for arbitration practitioners in Latin America; (ii) organising one of the leading annual arbitration conferences in Latin America, the “Americas Workshop”; and (iii) collaborating closely with arbitral institutions in Latin America and obtaining membership status for them in ITA, among others.

Objectives Of Caribbean Task Force 

Objectives of the ITA’s Caribbean Task Force include:

• Supporting initiatives already begun by bringing the considerable capacity of ITA to further support them;

• Raising awareness of and advancing international arbitration practice throughout the Caribbean (specifically targeting the legal and business sectors, as well as the judiciaries of the region);

• Promoting good international arbitration practices in the Caribbean, and raising the awareness of and challenging any perceived deficiencies of existing laws and practices in the region;

• Ensuring that countries in the Caribbean have adopted the Model law and are knowledgeable on best practices regarding its implementation and interpretation; and

• Supporting the inclusion of the Caribbean in conversations about the evolution of cutting-edge issues, such as third-party funding, transparency, open court versus confidentiality issues; immunity of arbitrators, corruption, and so forth.

Developing A Working Plan

The first task which the Task Force is undertaking is developing and presenting a working plan and advising ITA on further actions, projects, and opportunities, and how that first task can be accomplished effectively and efficiently, and consistent with building support for the Initiative within Caribbean circles.

Its approach to developing a “working plan” and advising “on further actions, projects and opportunities” involves at the outset consulting widely through focus group meetings with those in the Caribbean most involved with arbitration and/or in positions important to its development and success, on how ITA can be of greatest assistance.

The Task Force is beginning to meet with, and seek the advice and counsel of over 50 individuals in the Caribbean, including several senior and former members of Caribbean judiciaries with arbitration knowledge; several Caribbean Attorneys General with arbitration involvement; senior and up-and-coming arbitration practitioners and litigation counsel in Caribbean jurisdictions; leaders of Caribbean arbitral institutions and organisations; and people involved with various current arbitration initiatives in the Caribbean.

The Task Force will welcome the thoughts and suggestions of others, both individually and through organisations.

Six Potential Areas In Which The Task Force May Have A Role  

The Task Force identified six potential areas (and there may be others) in which it may have a role in aiding, and which it will consider in the various focus group meetings:

1. UNCITRAL Model Law implementation in Caribbean jurisdictions that have out-of-date arbitration laws.
2. Raising arbitration awareness among litigation lawyers and the Caribbean business community; demonstrating to them why arbitration can be to their economic and professional advantage; developing more of an “arbitration culture” in the Caribbean by assisting and working with those organisations and institutions that are working on this already; and assisting litigation counsel with ideas on how to build an arbitration component in their practices.
3. Assisting Caribbean arbitrators to increase their practical knowledge, competitiveness, profile, and arbitration network, including within ITA.
4. Judicial education about arbitration and the arbitration issues that come before courts, where such judicial education is desired by the judiciary.
5. Increasing the awareness of arbitration in the Caribbean business community, especially among SMEs, chambers of commerce, and the many Caribbean businesses that transaction across borders.
6. Leveraging the arbitration activity in Latin America for the mutual benefit of the Caribbean and Latin America, including the nuances of civil versus common law issues and practices.

Adoption Of The Model Law Throughout The Caribbean 

Regarding the first area in which the Task Force may have a role, it should be noted that some Caribbean jurisdictions have modernised their arbitration laws by adopting the Model Law, while a few others are at various stages of doing so. Yet some Caribbean jurisdictions continue to have outdated arbitration laws and have been doing little or nothing to update them.

A significant step forward recently was the adoption of a version of the Model Law for the Caribbean, the CARICOM [Caribbean Community] Model Arbitration Bill in 2021, and after that, the creation of the Impact Justice Model Arbitration Bill, 2022, so that Caribbean jurisdictions desiring to update their arbitration laws can adopt or adapt it, leading to modernisation and harmonisation throughout the Caribbean.

The development of the model bill to implement the Model Law in the Caribbean was through a Canadian-funded project, the Improved Access to Justice in the Caribbean Project (IMPACT Justice) and involved leading arbitration practitioners in the Caribbean.

Looking Forward

The enthusiastic initial response to the Caribbean Task Force from all quarters, and ITA’s commitment to the Task Force, bode well for its success in contributing meaningfully to the Objectives being attained.

In turn, attaining the Objectives will bode well for the future of arbitration in the Caribbean including for pan-Caribbean cooperation in arbitration, the growth of arbitration centres in the region, more – if not all – Caribbean jurisdictions becoming Model Law jurisdictions, and an increase in the seating and hosting of arbitrations in the region.

Footnotes:

[i] The Task Force is led by Calvin Hamilton (a Chartered Arbitrator, of Arbitra International and hamilton arbitration), and by the author of this article, as Chairs, and two Deputy Chairs, Hana Doumal (Registrar, BVI International Arbitration Centre) and Theominique Nottage (Arbitration Consultant, Government of The Bahamas, and former Co-chair of Young ICCA (International Council for Commercial Arbitration). The Chair of the Americas Initiative is Montserrat Manzano, a partner with Von Wobeser y Sierra, S.C. in México City, and the Secretary to the Task Force is Alexander Barnes, a lawyer with that firm.

[ii] https://www.cailaw.org/Institute-for-Transnational-Arbitration/index.html

[iii] http://www.kluwerarbitration.com/

[iv] https://www.cailaw.org/Institute-for-Transnational-Arbitration/publications/investment-treaty-scoreboard.html