BAHAMAS Law and Practice Contributed by: Theominique D. Nottage, McKinney, Bancroft & Hughes
7.2 Procedural Steps Beyond the requirement that proceedings be con - ducted with equal treatment of the parties and a rea - sonable opportunity to present a case, Bahamian law imposes few mandatory procedural steps, leaving the tribunal and parties considerable flexibility to design a procedure appropriate to the dispute. Formal notice requirements apply to the commencement of arbitral proceedings, and specific statutory time limits apply to certain post-award applications. 7.3 Powers and Duties of Arbitrators Arbitrators are under a general statutory duty to act fairly and impartially, to give each party a reasonable opportunity to put its case, and to adopt procedures suitable to the circumstances of the case, avoiding unnecessary delay or expense. Tribunals have wide case-management powers, including to determine procedural and evidential matters, order consolida - tion where agreed by the parties, and grant interim measures. 7.4 Legal Representatives There is no requirement that legal representatives appearing in a Bahamian-seated arbitration hold local rights of audience; parties are generally free to be represented by counsel of their choice, whether Bahamian-qualified or foreign-qualified, reflecting the international character of the ICAA 2023 regime, in contrast to the position for Bahamian court litigation, which generally requires representation by a locally admitted attorney except by special admission, which is only granted in limited circumstances. 8. Evidence 8.1 Collection and Submission of Evidence Bahamian-seated arbitrations typically follow an approach influenced by the jurisdiction’s common-law heritage, combined with the flexibility afforded by the applicable arbitration legislation and institutional rules. Tribunals commonly adopt document disclosure nar - rower than full common-law discovery, rely on written witness statements taken as evidence-in-chief, and permit cross-examination at the hearing. Privilege is respected in accordance with general common-law principles, and tribunals frequently draw on the IBA
preventing harm to the arbitral process, and preserv - ing evidence. Interim measures granted by a tribunal are binding on the parties and, under the ICAA 2023, are directly enforceable through the Supreme Court in the same manner as an award, subject to limited
grounds for refusal. 6.2 Role of Courts
Bahamian courts retain a supportive role in grant - ing interim relief in aid of arbitration, including in aid of foreign-seated arbitrations, where a tribunal has not yet been constituted or lacks effective power to grant the relief sought. Available court-ordered interim relief mirrors that available to a tribunal, and includes freezing orders, security for costs, and orders for the preservation of property or evidence. Emergency arbi - trator mechanisms are recognised where the parties’ institutional rules provide for them. Decisions of an emergency arbitrator are treated as binding pending confirmation, variation or revocation by the consti - tuted tribunal, and the courts retain a residual power to grant urgent interim relief even after an emergency arbitrator has been appointed, where necessary. 6.3 Security for Costs Both the Supreme Court and an arbitral tribunal have power to order security for costs, having regard to the same general principles applied in domestic litigation, including the claimant’s ability to satisfy an adverse costs order, though a tribunal will not order security solely on the ground that a claimant is foreign or resi - dent abroad.
7. Procedure 7.1 Governing Rules
Domestic arbitration procedure is governed by the Arbitration Act 2009 and extends to the arbitration of trust disputes, while the procedure for international commercial arbitrations seated in The Bahamas is governed by the ICAA 2023 (incorporating the Model Law). Parties otherwise retain considerable autonomy to adopt institutional rules (eg, ICC, LCIA, UNCITRAL Arbitration Rules).
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