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 enforcement of court judgments.
The BVI became to a party to the New York Convention in 2013. It has a modern arbitration regime under the BVI Arbitration Act 2013. The BVI International Arbitration Centre opened on 16 November 2016 and the BVI IAC Rules came into force on the same date.
The BVI’s 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 and/or the Caribbean to resolve their disputes. Harneys has extensive experience in enforcing arbitration awards and interim relief to preserve assets pending enforcement.
The BVI is a pro-arbitration jurisdiction. Under the Act both Convention and non-New York Convention awards, it is for the party against whom the award has been made to make representation to the court regarding a refusal to enforce.
An example of the BVI’s pro-enforcement approach can be seen in Bannister J’s comments in the Belport Development Limited v Chimichanga Corporation judgment. 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 ICC arbitration. The defendant objected to enforcement on the basis that he had not been allowed to cross-examine 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 the public policy of the BVI. He relied on s36(2)(c) (unable to present case) and s36(3) (contrary to public policy) of the Arbitration Act 1976: In concluding that neither s.36(2)(c) nor s.36(3) was successfully engaged Bannister J found that the evidence had been squarely before the Tribunal and Chimichanga was not in any sense of the term “unable to present its case”.
BVI’s pro-arbitration approach makes it a perfect seat for arbitration.