BAHAMAS Law and Practice Contributed by: Theominique D. Nottage, McKinney, Bancroft & Hughes
decision emanating from The Bahamas. There are no separate specialist commercial or arbitration courts. Under the Arbitration Act 2009, applications concern - ing stays of proceedings, interim relief, enforcement and challenges to awards are heard by the Supreme Court with reference to the Supreme Court Civil Pro - cedure Rules 2022, which include rules for arbitration- related applications. Under the ICAA 2023, the Per - manent Court of Arbitration is designated to perform certain supervisory and assistance functions such as arbitrator appointments where parties cannot agree, etc. The ICAA 2023 governs international commercial arbi - tration in The Bahamas, while aspects of trust arbi - tration (international in nature) are governed by the Arbitration Act 2009 and its amendments. The ICAA 2023 closely mirrors the Model Law, while the Arbi - tration Act 2009 is materially similar to the English Arbitration Act 1996 and often described as “Model Law compliant”. Bahamian national legislation based on the Model Law – the ICAA 2023 – diverges to the extent that it explicitly assigns roles to the Permanent Court of Arbitration for assistance and supervision, incorporates confidentiality provisions, introduces a specific regime for preliminary orders, and excludes trust arbitration because it is provided for under the Arbitration Act 2009 and its amendments. Recogni - tion and enforcement of foreign awards is separate - ly addressed under the Arbitration (Foreign Arbitral Awards) Act 2009, which gives effect to the 1958 New York Convention. 2.2 Changes to National Law 2. Governing Legislation 2.1 Governing Law There have been significant changes by virtue of the 2025 amendments to the Arbitration Act 2009. Section 2 introduces new definitions including of “adminis - tration question” (relief or questions relating to trust administration, execution or variation), “arbitration agreement”, “dispute”, “person under a disability” (minors or patients), “protector”, “minor”, “patient” and “trust subsection establishes that matters typi - cally agreed between parties shall, in trust arbitra - tions, be determined by the written terms of the trust.
Section 6A creates a new provision whereby written trust terms providing for arbitration shall have effect as an arbitration agreement between parties to the trust. Section 49A grants tribunals power to appoint representatives for persons (including unborn or unas - certained persons) in trust arbitrations, with provisions for arbitration guardians for persons under disability. Awards bind represented persons unless obtained by fraud or non-disclosure. Section 49 is amended to grant tribunals all powers of court regarding trust administration, execution and variation, or exercise of powers. Section 18 is replaced to provide that arbi - tration agreements are deemed to prohibit disclosure of confidential information unless expressly stated otherwise, while Section 22 is substantially revised to require court proceedings under the Act to be con - ducted in private upon application by any party, unless objection is made. Sections 23, 24, 25 and 47A are repealed. Second 89 is replaced by provisions for challenging awards on grounds of lack of substan - tive jurisdiction. Section 90 is replaced from the 2023 amendments and addresses challenges based on serious irregularity affecting the tribunal proceedings or award, defining nine categories of serious irregu - larity. Section 91 permits appeals on points of law with leave of the court, subject to strict criteria includ - ing that the tribunal’s decision is obviously wrong or involves questions of general public importance. Sec - tion 92 introduces supplementary provisions requiring exhaustion of arbitral remedies before court applica - tions and imposing a 28-day time limit for applications or appeals. Section 9 is amended to clarify that legal proceedings include applications concerning admin - istration questions and permits stays to be sought by any party to the trust. Section 83 is amended regard - ing trustees’ entitlement to costs from trust funds. Mandatory provisions in Section 5 are updated to reflect the new and amended provisions. There are draft bills for domestic and international mediation which may impact the arbitration landscape in The Bahamas in the future.
3. The Arbitration Agreement 3.1 Enforceability
For an arbitration agreement to be enforceable under the laws of The Bahamas, the arbitration agreement
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