BAHAMAS Law and Practice Contributed by: Theominique D. Nottage, McKinney, Bancroft & Hughes
11.2 Excluding/Expanding the Scope of Appeal Parties may agree to exclude the limited right of appeal on a point of law available under the Arbitra - tion Act 2009 but they cannot exclude the mandatory, non-derogable grounds for challenging an award for serious irregularity or lack of substantive jurisdiction, nor the equivalent mandatory setting-aside grounds under the ICAA 2023. 11.3 Standard of Judicial Review Where a point of law appeal is available and has not been excluded, the Supreme Court applies a de novo standard to the legal question at issue. On applica - tions to set aside for serious irregularity or lack of juris - diction, or under the ICAA 2023’s Model Law grounds, the court applies a supervisory, deferential standard, and does not review the tribunal’s findings of fact or its assessment of the merits.
the party opposing enforcement to provide suitable security. 12.3 Approach of the Courts Bahamian courts have adopted a strongly pro- enforcement approach, treating the grounds for refus - al narrowly and construing “public policy” restrictively, limited to fundamental principles of justice and moral - ity rather than mere disagreement with the tribunal’s reasoning or the substantive law applied. A state or state entity may raise sovereign immunity, but Baha - mian common law recognises a restrictive doctrine of immunity, meaning immunity will not usually shield a state from enforcement of an award arising from commercial activity, particularly where the state has agreed to arbitrate. 13. Miscellaneous 13.1 Class Action or Group Arbitration Bahamian arbitration legislation does not contain specific provision for class or group arbitration, and, consistent with the consensual nature of arbitration, such claims may only be arbitrated together where all affected parties have agreed, whether in a single arbitration agreement or through subsequent consoli - dation. 13.2 Ethical Codes Bahamian counsel appearing in arbitration remain sub - ject to the professional conduct rules of the Bahamas Bar Association. Arbitrators are commonly expected to observe internationally recognised standards such as the IBA Guidelines on Conflicts of Interest and the IBA Rules of Ethics for International Arbitrators, or the relevant rules of any international institution under which the arbitration is administered. 13.3 Third-Party Funding There is no dedicated statutory regime specifically regulating third-party funding of arbitration in The Bahamas; funding arrangements are assessed against the ordinary common-law doctrines of maintenance and champerty, which have historically restricted the funding of litigation but have been relaxed in many common-law jurisdictions in the arbitration context. Bahamian courts have not yet definitively ruled on the
12. Enforcement of an Award 12.1 New York Convention
The Bahamas acceded to the 1958 New York Conven - tion with effect from 20 March 2007, without mate - rial reservations affecting its general application, and gave it domestic effect through the Arbitration (For - eign Arbitral Awards) Act 2009. The Bahamas is also
a member of the ICSID Convention. 12.2 Enforcement Procedure
An application for recognition and enforcement is made to the Supreme Court, supported by the award and the arbitration agreement (or certified copies), following which the award is enforced in the same manner as a judgment of the court, subject only to the limited grounds for refusal recognised under the 1958 New York Convention and mirrored in the Arbitration (Foreign Arbitral Awards) Act 2009 and the ICAA 2023. An award set aside by a competent court at the seat will generally not be enforced in The Bahamas, since this is itself a recognised ground for refusal, although the Bahamian court retains a discretion in appropri - ate cases. Where set-aside proceedings are pend - ing at the seat, the Bahamian court may adjourn the enforcement application and, if it so orders, require
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