BAHAMAS Trends and Developments Contributed by: Theominique D. Nottage, McKinney, Bancroft & Hughes
inform how funded claims are handled in Bahami - an-seated arbitrations. • Artificial intelligence tools are moving from experi - mentation to active use, with institutions such as the American Arbitration Association’s International Centre for Dispute Resolution piloting AI-assisted evaluation of claims in documents-only cases and issuing guidance on when arbitrators must disclose their use of such tools. • Environmental, sSocial and governance (ESG) disputes are becoming more common in treaty and commercial arbitration generally, particularly where infrastructure, energy or environmental regulation is in issue – a trend with obvious resonance for a jurisdiction like The Bahamas considering the GoB versus GBPA Partial Final Award turned partly on the failure to approve proposed environmental bye- laws. None of these trends are unique to The Bahamas. Even the trend of third-party funding has already (and as recently as 2024 and 2025) been raised (in the con - text of champerty) in the Volpi litigation as part of the settlor’s challenge to costs orders made against him. Notwithstanding, each of these trends – third-party funding, AI and ESG – intersect with The Bahamas’ particular strengths and vulnerabilities as (i) a sophis - ticated, well-resourced trust and financial services jurisdiction, (ii) a jurisdiction with a small pool of arbi - trators and practitioners alike, and (iii) an economy still working through the practical consequences of the GoB v GBPA Partial Final Award. Moreover, although Bahamian legislation does not yet expressly regulate AI in arbitration, increasing reliance on AI-assisted document review by practitioners raises important questions concerning confidentiality and privilege, which are particularly relevant given the enhanced confidentiality protections introduced by the 2023 amendments. Outlook For clients, the practical takeaways are straightfor - ward. Three threads run through the fabric of devel - opments in Bahamian arbitration of the past several years. Firstly, the courts have shown a consistent willingness to hold parties, however powerful, to their arbitration agreements, and to resist expansive supervisory review. This has been the case whether
the party was a billionaire settlor or the Government itself. Secondly, the Privy Council has given Baha - mian-seated arbitration a body of appellate authority that is cited well beyond the jurisdiction’s borders, which in turn enhances confidence in choosing The Bahamas as an arbitral seat. Finally, the legislative regime has moved, deliberately, to match that judicial direction with statutory reinforcement. These domestic threads do not run in isolation from the global currents described above. As third-party funding becomes more routine, Bahamian tribunals and courts will increasingly be asked to apply the same rigour to funding disclosure and costs as they have applied to the merits, a question already pre - viewed by the champerty arguments raised in the Vol - pi litigation. As institutions elsewhere pilot the use of AI in case management and evaluation, The Bahamas’ small, closely networked arbitration community is well placed to adopt a clear, early guidance on disclosure of such tools, rather than legislating reactively after a dispute exposes a gap. Additionally, as ESG-inflected disputes become more common internationally, the GoB v GBPA award is a preview, rather than an outlier, of the kind of public-private regulation-heavy disputes that a jurisdiction built on licensing and concession arrangements (like The Bahamas) should expect to keep seeing. Some questions remain open and there are some challenges to resolve. The GoB v GBPA tribunal has yet to determine quantum and costs, while the Volpi litigation continues to generate fresh procedural chal - lenges. Both are worth watching closely, as either could add nuance to the picture painted above. Further, The Bahamas continues to grapple with a relatively small pool of experienced arbitrators, limited institutional arbitration and the need for the continued develop - ment of arbitration practitioners. However, at least for now, the direction of travel is clear. The Bahamas has moved within the space of a few years from a jurisdic - tion where arbitration was a contractual afterthought to one where it has been tested by the courts and trusted by statute. Thus, if the present trajectory continues, the next stage of development is likely to involve an increase in international commercial arbitrations select - ing The Bahamas as a seat, as well as an increase in trust arbitrations seated in The Bahamas.
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