BRITISH VIRGIN ISLANDS Law and Practice Contributed by: Alex Hall Taylor KC, Richard Brown, Tim Wright and Simon Hall, Carey Olsen
reasonableness of parties are relevant when assess- ing costs. If a party unreasonably refuses to engage in ADR, this may be reflected in costs. However, as explained in 8. Settlement , the BVI CPR now contains the concept of “judicial settlement conferences” (Part 38A), which is new and untested. 12.3 ADR Institutions The main institution is the International Arbitration Centre (IAC), which provides excellent services and facilities for ADR, in particular arbitration. The BVI IAC is still in its early days but is promoting ADR in the BVI, the rest of the Caribbean and beyond. Arbitrations and the recognition or enforcement of arbitral awards in the BVI are largely governed by the Arbitration Act 2013, which came into force on 1 Octo- ber 2014. It introduced the UNCITRAL Model Law on International Commercial Arbitration 1985 to the BVI with some minor exceptions. Issues of recognition and enforcement of foreign arbi- tral awards are also governed by the Arbitration Act and the EC CPR. 13.2 Subject Matters Not Referred to Arbitration Matters of corporate or individual insolvency, crimi- nal matters, and family matters may not be referred to arbitration. Furthermore, any matters contrary to the public policy of the BVI may not be referred to arbitration. 13. Arbitration 13.1 Laws Regarding the Conduct of Arbitration Aside from those exceptions, most forms of commer- cial dispute in the BVI are capable of being determined by arbitration, including shareholder disputes and joint ventures. 13.3 Circumstances to Challenge an Arbitral Award There is no general right in the Arbitration Act 2013 to challenge or appeal to the court on the grounds of errors or fact of law in the arbitral award, unless the
parties to the arbitration agreement have decided to “opt in” and give such rights. If the parties do not opt in, the grounds for the court to set aside an award are narrow. The applicant must make an application to court under Section 79 of the Arbitration Act, within three months of the arbitral award, and prove that: • a party to the arbitration agreement was under some incapacity, or the agreement was not valid; • the applicant was not given proper notice of the arbitration and was unable to present its case; • the award deals with a dispute that does not fall within the terms of the submission to arbitration; or • the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties. The court may also set aside the award if it falls within the excluded matters listed in 13.2 Subject Matters Not Referred to Arbitration . 13.4 Procedure for Enforcing Domestic and Foreign Arbitration There is no distinction between domestic and for- eign arbitral awards. However, there is a distinction between a New York Convention award and a non- New York Convention award. A New York Convention award may be recognised and enforced more easily by applying to the court under Sections 84–86 of the Arbitration Act. The court does not have a discretion to refuse permission to enforce, provided that the basic parameters of the New York Convention are satisfied, and will issue an order that the arbitral award will be recognised as a judgment or order of a BVI court. An applicant seeking to enforce a non-New York Con- vention Award may apply to court under Section 81 of the Arbitration Act for permission to enforce the award in the same manner as a judgment or order of the court that has the same effect. The BVI courts have broader powers to refuse such permission than in relation to a New York Convention Award.
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