BRITISH VIRGIN ISLANDS Law and Practice Contributed by: Andrew Emery and Mary-Frances Morris, Emery Cooke
The BVI Commercial Court has adopted a pragmatic and pro-enforcement stance towards enforcement, while also fairly applying the established principles under the New York Convention. The beneficiary of a Convention award may readily enforce it in the BVI applying the well-established passport principles of enforcement. The New York Convention was extended to the BVI by the UK government in 2014, meaning that awards made in any of the 170+ contracting states are Con- vention awards enforceable under this streamlined regime. Convention awards can be enforced either by com- mon law action or, more commonly, by a Fixed Date Claim Form application for leave supported by authenticated copies of the award and agreement. Non-Convention awards follow the same procedure but are subject to a broader discretionary ground of refusal. Once recognised, awards are treated as BVI judgments and enforceable through the full range of execution mechanisms, with charging orders over BVI company shares and insolvency proceedings being the most commonly deployed. Confidentiality is maintained throughout. The process is generally swift where uncontested, and the grounds available to an award debtor to resist enforcement are narrow and exhaustively defined for Convention awards. 9.3 Length of Time If being enforced under the statutory route, the length of time is usually around six weeks (if uncontested). If being enforced through the common law debt claim route the process can take two to three months. If the enforcement is contested, the timeframe can take years. 9.4 Grounds for Resisting Enforcement The BVI courts will decline to recognise or enforce a foreign judgment in the following circumstances, which apply to both the statutory and common law routes. • Fraud – where judgment was obtained by fraud on the part of the judgment creditor or the original court.
• Public policy – the BVI courts will not enforce the criminal or revenue law of another state. Awards of exemplary or punitive damages are not unenforce- able, unless found to be contrary to public policy. • Natural justice – the BVI courts will not normally recognise or enforce any foreign judgment where there has been a breach of the rules of natural justice, a term of art denoting specific procedural rights similar to the US concepts of fair procedure and procedural due process. It requires that every party has the right to a fair hearing and the right to be heard by an impartial tribunal, including the right to be represented, to fairly present their case, and to be afforded a proper opportunity to be heard. • No jurisdiction – where the original court lacked jurisdiction over the defendant, for example, where the judgment debtor was not present, resident, or carrying on business in the foreign jurisdiction and did not submit to its jurisdiction. 10. Dispute Resolution and AI 10.1 Regulation There is no regulation in the BVI covering the use of AI in dispute resolution. 10.2 Impact The use of AI in BVI dispute resolution is currently unregulated; there is no BVI legislation, practice direc- tion, or institutional guidance addressing it directly. Practitioners are governed by the general professional and procedural obligations under the Legal Profes- sion Act 2015, the Code of Ethics, the EC CPR, and common law. These existing rules require accuracy, candour, confidentiality, and competence, and apply to AI-assisted work just as they do to any other form of legal work. The international regulatory landscape is evolving rapidly, and developments in England and from bodies such as UNESCO and international arbi- tral institutions are likely to shape the BVI’s approach in the near future. For now, practitioners using AI tools in BVI dispute resolution do so at their own profes- sional risk and should exercise rigorous verification of any AI-generated output before relying on it in pro- ceedings.
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