THE TURKS & CAICOS ISLANDS Law and Practice Contributed by: Stephen Wilson KC, Dominique Gardiner and Lovelie Luxama, Wilson Wells
13.4 Procedure for Enforcing Domestic and Foreign Arbitration Section 10 of the Arbitration Act provides that “any award on a submission may, by leave of the court, be enforced in the same manner as a judgment or order to the same effect”. In respect of foreign arbitration awards, Order 73, rule 6 provides: “ Where an award is made in pro- ceedings on an arbitration in any country to which the Overseas Judgment (Reciprocal Enforcement) Act extends, being a country to which the said Act has been applied, then, if the award has, in pursuance of the law in force in the place where it is made, become enforceable in the same manner as a judgment given by a court in that place, the Overseas Judgments (Reciprocal Enforcement) Rules shall apply in relation to the award as they apply in relation to a judgment given by a court in that place – subject, however, to the following modifications: • for reference to the country of the original court, there shall be substituted references to the place where the award was made; and • the affidavit required by rule 5 of the said Rules must state (in addition to the other matters required by that rule) that, to the best of the information or belief of the deponent, the award has – in pursu- ance of the law in force in the place where it was made – become enforceable in the same manner as a judgment given by a court in that place. Unfortunately, as stated in 9.5 Enforcement of a Judgment From a Foreign Country , the provisions of the Overseas Judgment (Reciprocal Enforcement) Act have not been extended to any country other than the UK. As a result, any foreign award other than one made in the UK will have to be enforced at common law, which requires bringing proceedings on it. 14. Outlook 14.1 Proposals for Dispute Resolution Reform At the beginning of November 2020, the Chief Jus- tice of the Turks and Caicos Islands appointed a four-member technical team to produce new Civil Procedure Rules for the Judiciary of the Turks and
ficult to research a body of local case law. This new resource is still in its early stages of development, but it seems that the national courts are pro-enforcement when it comes to arbitration agreements. Section 3 of the Arbitration Act provides that “a submission, unless a contrary intention is expressed therein, shall be irrevocable except by leave of the court and shall have the same effect in all respects as if it had been made an order of court”. The Turks and Caicos Islands are not a contracting party to, and have not ratified, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the “New York Convention”). They are a party to the Geneva Protocol on Arbitration Clauses. The Limitation of Actions Act 2021 (discussed in detail in 3.2 Statutes of Limitations ) applies to arbitrations as it applies to actions in the Supreme Court. 13.2 Subject Matters Not Referred to Arbitration The Arbitration Act does not contain any restriction on the subject matters that may be referred to arbitration. The concept of what is capable of being arbitrated is usually circumscribed by the notions of what con- stitutes public justice and what cannot be dealt with privately. Certainly, it is not permissible to arbitrate any matter that would violate the Turks and Caicos Islands’ most basic notions of morality and justice. 13.3 Circumstances to Challenge an Arbitral Award Under Section 16 (2) of the Arbitration Act, the Supreme Court may set aside an arbitral award where: • an arbitrator, umpire or referee has misconducted themselves; or • the arbitration award has been improperly pro- cured. Furthermore, pursuant to Order 73, rule 2 (2) of the Rules of the Supreme Court 2000, an application may be made to a single judge in court for a declaration that an award is not binding on a party to the award on the ground that it was made without jurisdiction.
1143 CHAMBERS.COM
Powered by FlippingBook