BAHAMAS Trends and Developments Contributed by: Theominique D. Nottage, McKinney, Bancroft & Hughes
signals that The Bahamas’ jurisprudence applies with equal force to Section 68 of the English Arbitration Act 1996, which is particularly relevant as London is one of the leading arbitral seats. Legislative modernisation: the 2023 and 2025 Arbitration Act amendments and the enactment of the UNCITRAL Model Law on International Commercial Arbitration Alongside this case law, the Arbitration (Amendment) Act 2023 and the Arbitration (Amendment) Act 2025 (both amending the Arbitration Act 2009), as well as the International Commercial Arbitration Act 2023, have quietly strengthened the statutory foundation for arbitration in The Bahamas, representing a deliber - ate legislative policy of reducing judicial intervention while expanding arbitration into specialist fields, such as trusts. The amendments consolidate provisions on trust arbitration that were previously in the Trustee Act, while expanding provisions to further buttress the use of arbitration to resolve trust disputes. Significantly, the 2023 amendments enhanced confidentiality, mak - ing it an offence for a party to knowingly and unlaw - fully disclose confidential information, with damages payable to the other party as determined by the arbi - tral tribunal, and an arbitrator who breaches confiden - tiality may forfeit the usual indemnity against suit and see fees withheld. The 2025 amendments went further on trust arbitra - tion by giving trust arbitration clearer statutory foot - ing than the 2023 amendments through the introduc - tion of new definitions – including of “administration question”, “arbitration agreement”, “person under a disability” and “protector”, as well as deeming an arbitration to be binding between the settlor, trustee, beneficiaries and other related parties. Trust arbitra - tion is further supported by provisions which mirror the powers of the court in trust litigation; that is to say, there is provision now to allow arbitral tribunals to appoint representatives or arbitration guardians for minors, unborn persons or persons under a disability. Similarly to the 2023 amendments, the 2025 amend - ments again enhanced confidentiality/privacy protec - tion by repealing the detailed public interest balancing test and replacing it with a rule requiring private hear - ings for arbitration-related court proceedings, unless
there is an objection, in which case the court decides whether justice requires a public hearing. Complemented by the Arbitration (Foreign Arbitral Awards) Act 2009, which incorporates the 1958 New York Convention into Bahamian law, the enactment of the International Commercial Arbitration Act 2023 was long overdue, incorporating the UNCITRAL Model Law on International Commercial Arbitration into The Bahamas’ arbitration regime. The International Com - mercial Arbitration Act 2023 provides a comprehen - sive legal framework for international commercial arbi - tration in The Bahamas and applies where the seat of arbitration is in The Bahamas, with certain provisions applying regardless of location. This Act reinforces The Bahamas’ position as an arbitration-friendly jurisdiction by limiting court intervention to instances expressly provided for, affirming tribunals’ compe - tence to rule on their own jurisdiction, and empower - ing tribunals to grant a broad range of interim meas - ures and preliminary orders – including ex parte relief – alongside a clear regime for cross-border recogni - tion and enforcement. The legislation also designates the Permanent Court of Arbitration at The Hague as the default appointing and supervisory authority for functions such as arbitrator appointments, challenges and time-limit extensions, thus signalling an intention on the part of Parliament to align with internationally recognised institutions. Taken together, the 2023 and 2025 amendments, in addition to the International Commercial Arbitration Act 2023, represent a deliberate legislative effort, coupled with Parliamentary intention, to bring The Bahamas’ arbitration regime in line with leading glob - al standards in international commercial arbitration, while setting its own standard for trust arbitration. Global currents with local relevance The Bahamas has not developed its arbitration prac - tice in isolation, and several international trends will likely shape how disputes with a Bahamian nexus are conducted: • Third-party funding continues to expand across seats and institutions, with bodies such as the Chartered Institute of Arbitrators issuing guidance on disclosure, conflicts and privilege that is likely to
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