In the British Virgin Islands, arbitration is principally regulated by the Arbitration Act 2013 (the Act), which came into force in 2014.
The Act is modelled upon the UNCITRAL Model Law on International Commercial Arbitration (the Model Law), subject to a number of local modifications. The Act is supplemented by the BVI IAC Arbitration Rules (the BVI Rules), which were brought into force in 2016.
BVI International Arbitration Centre
The BVI International Arbitration Centre (the IAC) also opened in 2016. The IAC was the first centre of its kind in the Caribbean to provide a forum for dispute resolution by way of arbitration. The IAC's Board of Directors is chaired by Mr John Beechey CBE, the former President of the International Court of Arbitration of the International Chamber of Commerce.
The BVI's central location between North and South America means that parties with business and other interests in those locations are able to choose a neutral territory in which to resolve their disputes. The IAC also provides a perfect venue for arbitrations involving BVI incorporated companies.
The centre itself provides a modern hi-tech facility in which parties from around the globe can expect international high-class standards in a politically neutral environment. Amongst the facilities provided at the centre are simultaneous language interpretation services, audio and video conferencing facilities and a concierge service.
BVI Arbitration Act 2013
The Act has three main features which are of interest:
1. It incorporates the UNCITRAL Model Law on International Commercial Arbitration (the Model Law) as adopted by the UN Commission which is recognised internationally.
2. The BVI is signatory to the UN Convention on Recognition and Enforcement of Foreign Arbitral Awards, commonly referred to as the New York Convention.
3. The option to opt-in to a right of appeal to Court on a question of law arising from the arbitral award.
In addition, other useful matters to note about the Act are the arbitral tribunal's power to consolidate two or more arbitrations in certain circumstances and a party's ability to apply to Court challenging the arbitral award on the ground of serious irregularity.
UNCITRAL Model Law
The incorporation of the Model Law into the Act enshrines well-established international principles. The same may be said of the BVI Rules as they are based on 2010 the UNCITRAL Arbitration Rules (the UNCITRAL Rules). The Act and UNCITRAL Rules recognise firstly, that the parties are free to choose the terms of the arbitration clause subject to the usual common law rules on validity; and secondly, the parties are able to appoint their preferred number of arbitrators.
The effect of the incorporation of the Model Law is that a number of matters codified in the Model Law apply to the Act. These are: (1) the arbitral tribunal's ability to rule on jurisdiction further to section 32; (2) the doctrine of severance or separability under section 32; (3) the ability to challenge the appointment of or to remove an arbitrator further to section 23; and (4) the power of the tribunal to grant interim measures under section 33. These provisions closely follow the Model Law.
Jurisdiction
Jurisdiction challenges are common in arbitration so it is important that the arbitral tribunal retains the power to rule on its own jurisdiction in order to avoid unnecessary delay. The tribunal can hear any objections with respect to its jurisdiction including in relation to the existence or validity of the arbitration agreement without needing to take the dispute to Court. The jurisdictional power of the arbitral tribunal includes the power to decide whether the tribunal is properly constituted and to decide what matters have been submitted for resolution in accordance with the arbitration agreement.
Severance
The doctrine of severance or separability further to section 32 of the Act gives the arbitral tribunal the power to sever the arbitration clause as a contract ...