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Government urged to build arbitration centre

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Tariq Mahmood LLB, MA, PHD, FCIArb, FPD is counsel at Cox Hallett Wilkinson Limited, where he specialises in multi-jurisdictional commercial dispute resolution (Photograph supplied)

The place of eternal spring, the future hub of international arbitration is no other than Bermuda. It is imperative that the Government and other stakeholders take the bold step of establishing a dedicated Alternative Dispute Resolution Centre in Bermuda.

International arbitration is used in the insurance and reinsurance industry in Bermuda and there is a growing trend to resolve disputes by way of arbitration in other commercial disputes.

The official ground-breaking ceremony of the Ottiwell A. Simmons International Arbitration Centre was conducted in 2020 and we were informed that the building would be ready in March 2022, we are now at the end of June 2023 and there is still no progress. Time is ticking away.

Bermuda is a very arbitration-friendly jurisdiction. This is supported in the 2019 judgment of Chief Justice Narinder Hargun in SA v Priosma Limited.

In paragraph 42, he states: ”The decision I have arrived at is, I believe, consistent with the pro-enforcement policy underlying the New York Convention and the 1993 Act generally.

“The 1993 Act embodies ‘a predisposition to favour enforcement of New York Convention Awards, reflecting the underlying purpose of the New York Convention itself’ (Gross J in IPCO (Nigeria) Limited v Nigerian National Petroleum Corporation [2005] EWHC 723, [11]). This policy favours finality of the arbitration awards.”

The Bermuda International Arbitration and Conciliation Act governs international arbitration in Bermuda. The UNCITRAL Model Law is applicable to all international commercial arbitrations held in Bermuda unless the parties expressly agree otherwise.

In domestic arbitration, the Arbitration Act 1986 (Arbitration Act) governs any arbitration of domestic disputes.

The Arbitration Act is derived from the UK Arbitration Acts 1950, 1974 and 1979 and it sets out the legislative framework for arbitrations in Bermuda.

At present, there is a detailed review of the Arbitration Act 1996 by the Law Commission of England & Wales and it may be prudent to wait and see what reforms are implemented before Bermuda can consider any reforms to its Act.

In the international insurance market, multinational and US Fortune 500 companies purchase high-level excess insurance in the Bermuda market owing to the market having substantial capacity.

Arbitrations in Bermuda have several advantages for the American companies owing to the logistical convenience of bringing witnesses to give evidence in Bermuda rather than London thus saving costs and time.

New York is the governing law in Bermuda Form arbitrations and therefore American lawyers are normally involved.

It is easier for a team of American lawyers to travel to Hamilton, which takes a couple of hours as compared to seven hours to London.

George Bernard Shaw was correct when he stated that “England and America are two countries separated by a common language". This is supported by how trials are conducted in America and London.

Bermuda has a good number of internationally qualified barristers trained in London who are adept at dealing with the most complex insurance/reinsurance arbitration.

The benefits of a dedicated ADR Centre are threefold.

A dedicated ADR Centre will enable arbitration hearings to be conducted in a modern purpose-built facility and be arbitration-friendly.

Second, the ADR Centre can be used to hold mediations and provide conference facilities.

Third, the ADR Centre can be used to provide ADR training to the next generation of lawyers.

Allowing the ADR Centre to be multipurpose will allow it to generate income to ensure that it is self-sufficient for generations to come.

There is no ADR Centre in Bermuda and as a result arbitrations are being held in hotels, where rooms are hired in order to conduct hearings. The hotels are not geared to conduct arbitrations efficiently as they could be in a dedicated ADR Centre.

Substantial steps have been taken in BVI and the Cayman where they have dedicated ADR centres providing bespoke service to clients around the globe.

The time is right for the Premier of Bermuda to leave a legacy and ensure that we have a dedicated ADR Centre that can be equipped to meet the needs of the next generation.

Tariq Mahmood LLB, MA, PHD, FCIArb, FPD (tmahmood@chw.com) is counsel at Cox Hallett Wilkinson Limited, where he specialises in multi-jurisdictional commercial dispute resolution. Dr Mahmood is a widely published lecturer and is on numerous institutional panels worldwide and has served as counsel, arbitrator and mediator, conducted institutional and ad hoc arbitrations and numerous mediations

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Published August 22, 2023 at 7:58 am (Updated August 22, 2023 at 7:24 am)

Government urged to build arbitration centre

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