BAHAMAS Law and Practice Contributed by: Theominique D. Nottage, McKinney, Bancroft & Hughes
must be in writing. Section 6 of the Arbitration Act 2009 details what constitutes “in writing”, with a broad interpretation that includes exchange of communica - tions and any record evidencing the agreement, and includes electronic communication and data mes - sages. The arbitration agreement must comply with general contractual principles and must contemplate a final and binding decision by the arbitral tribunal. Under the laws of The Bahamas, the doctrine of sepa - rability is applicable, except insofar as it relates to the arbitration of trust disputes. Finally, the arbitra - tion agreement must not violate public policy or legal requirements specific to The Bahamas. 3.2 Arbitrability Criminal matters cannot be submitted to arbitration, in addition to certain family law matters such as adop - tion, marriage, divorce and devolution of property on death, which are all excluded from arbitration in The Bahamas. A catch-all is anything where an award would be contrary to Bahamian public policy, but it is important to remember that Bahamian law has made legislative provision for the arbitration of trust dis - putes, which could, on its face, be seen as contrary to public policy. Essentially, the general approach used in The Bahamas to determine whether or not a dispute is “arbitrable” is, firstly, a consideration of whether the subject matter is capable of being settled by arbitra - tion and, secondly, a residual public policy check. 3.3 National Courts’ Approach Consistently, Bahamian courts have shown a pro-arbi - tration approach, most notably in the 2023 Supreme Court decision in Gabriele Volpi v Delanson Services Limited et al , which upheld and enforced an arbitra - tion clause in the trust instruments and stayed related litigation. Courts generally apply Bahamian law as the law of the arbitration agreement in the absence of an express or implied choice, following the established common-law approach of looking first to an express choice, then secondly to an implied choice, and lastly to the law with the closest connection to the agree - ment. Arbitration agreements are, in practice, usually enforced by Bahamian courts. 3.4 Validity Both the Arbitration Act 2009 and its amendments as well as the ICAA 2023 adopt express provisions
on the doctrine of separability. This means that an arbitration clause is treated as a distinct agreement from the underlying contract and survives even if the main contract is found to be invalid or void or to have never come into existence, unless the arbitration clause itself is independently impugned. The doctrine of separability is disapplied insofar as it relates to the arbitration of trust disputes under legislation.
4. The Arbitral Tribunal 4.1 Limits on Selection
Party autonomy in selecting arbitrators is broad, sub - ject only to the overriding requirements of independ - ence and impartiality and to any restrictions the parties themselves adopt (eg, institutional rules on nationality or qualifications). There is no general Bahamian law restriction on foreign nationals or foreign-qualified practitioners sitting as arbitrators, reflecting the juris - diction’s aim of positioning itself as an international arbitration seat. 4.2 Default Procedures If the parties’ chosen appointment mechanism fails, both the ICAA 2023 (Model Law-based) and the Arbitration Act 2009 empower the Supreme Court to make the necessary appointment on application by a party. Where the parties have not agreed a number of arbitrators, a sole arbitrator is typically appointed by default. Multiparty appointment issues are generally addressed through the parties’ own procedural agree - ment or institutional rules, with the Supreme Court retaining a residual default power where the appoint - ment machinery breaks down. 4.3 Court Intervention The Supreme Court can intervene to appoint arbitra - tors where the agreed procedure fails, but its power is limited to filling gaps in the parties’ chosen procedure; it will not interfere where that mechanism is function - ing, reflecting the policy of minimal court intervention that runs through both the Arbitration Act 2009 and the ICAA 2023. 4.4 Challenge and Removal of Arbitrators Both the Arbitration Act 2009 and the ICAA 2023 allow a party to challenge or seek removal of an arbitra -
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