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05 July 2018
The New York Convention is 60 years old and now has 157 contracting states. It was enacted to facilitate the ease of recognition and enforcement of arbitration awards in different states. Its purpose was to facilitate and support international trade by recognising the parties' agreement to arbitrate given that consent is the cornerstone of arbitration. It also ensures a streamlined process for enforcement, removing the procedural hurdles often seen in the enforcement of court judgments.
The British Virgin Islands became a party to the New York Convention in 2013 and has a modern arbitration regime under the Arbitration Act 2013. On 16 November 2016 the BVI International Arbitration Centre opened and the BVI International Arbitration Centre Rules came into force.
The British Virgin Islands' central location between North and South America makes it an ideal neutral location for the seat of arbitration for parties with business in those locations or in the Caribbean to resolve their disputes.
The British Virgin Islands is a pro-arbitration jurisdiction. Under the Arbitration Act, with regard to both New York Convention awards and non-New York Convention awards, the party against which the award has been made can make representation to the court regarding a refusal to enforce.
An example of the British Virgin Islands' pro-enforcement approach can be seen in Belport Development Limited (BDL) v Chimichanga Corporation.
The defendant applied to set aside an order obtained ex parte by BDL giving it leave to enforce an award obtained against Chimichanga in an International Chamber of Commerce arbitration. The defendant objected to enforcement on the grounds that he had been prohibited from cross-examining a witness on whom the tribunal had relied, arguing that this was a breach of natural justice and that to enforce the award would be contrary to BVI public policy. The defence relied on Sections 36(2)(c) (unable to present case) and 36(3) (contrary to public policy) of the Arbitration Act 1976.
In concluding that neither Section 36(2)(c) nor Section 36(3) was successfully engaged, the court found that the evidence had been squarely before the tribunal and that Chimichanga was in no way "unable to present its case".
The British Virgin Islands' pro-enforcement approach makes it an ideal seat for arbitration.
For further information on this topic please contact Vicky Lord at Harney Westwood & Riegels' Hong Kong office by telephone (+852 5806 7800) or email (firstname.lastname@example.org). Alternatively, contact Peter Ferrer, Jonathan Addo or Claire Goldstein at Harney Westwood & Riegels' Tortola office by telephone (+1 284 494 2233) or email (email@example.com, firstname.lastname@example.org or email@example.com). The Harneys website can be accessed at www.harneys.com.
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