Difficulties enforcing awards
Undermining of foreign arbitration
Foreign arbitration is seen as an alternative method of dispute resolution that may be preferred to litigation. However, Belize case law has identified the difficulties that might be encountered by an award holder in attempting to enforce an award (for further details please see "International arbitration: local court developments"). First, persons who have successfully obtained an arbitration award may be prevented from enforcing it on the basis that it offends public policy. Second, successful award holders may encounter exceptional difficulty in enforcing the award, such as in Belize Bank Ltd v the Attorney General of Belize. To date, the government has failed to honour the order made by the Caribbean Court of Justice (CCJ), Belize's final appellate court, in that case, and Belize Bank Ltd has been forced to seek relief from the court. Several applications have been made at the CCJ level, but these have yet to be determined.
Undermining of foreign arbitration
It is also arguable that the option of foreign arbitration has been undermined by the passing of the Crown Proceedings (Amendment) Act and the Central Bank of Belize (International Immunities) Act 2017 (new amendments) (for further details please see "International arbitration: key legislative developments"). By reason of the new amendments, the legislature has sought to prevent parties from even attempting to challenge or enforce awards that have been deemed by the Belize courts to be unlawful, void or otherwise invalid by making such acts an offence in law. As a result of this, enforcement of a foreign award by a successful party becomes almost impossible, if not impossible, to achieve.
Two claims have been instituted which challenge the new amendments:
- Caribbean Investment Holdings Limited v the Attorney General of Belize;(1) and
- Courtenay Coye LLP v the Attorney-General of Belize.(2)
These claims challenge the new amendments on the ground that they infringe the fundamental rights and freedoms guaranteed by the Constitution, including the rights to:
- life;
- liberty;
- security of the person;
- protection of the law;
- work; and
- protection from arbitrary deprivation of property.
In addition, the claimants argued that the offences created by the new amendments are unclear and imprecise and create a presumption of guilt and a reverse burden to prove innocence. This is contrary to Section 6 of the Constitution, which states that "all persons are equal before the law and are entitled without any discrimination to the equal protection of the law".
The court's determination of the constitutionality of the new amendments will significantly affect the enforcement of foreign awards in Belize and abroad. The decisions and any subsequent appeals will provide interesting jurisprudence with regard to the enforcement of foreign awards abroad.
For further information on this topic please contact Eamon Harrison Courtenay or Stacey N Castillo at Courtenay Coye & Co by telephone (+1 501 223 1476) or email ([email protected] or [email protected]). The Courtenay Coye & Co website can be accessed at www.courtenaycoye.com.
Endnotes
An earlier version of this article was published in The Law Reviews.
