BAHAMAS Trends and Developments Contributed by: John F. Wilson KC, Theominique D. Nottage and Adrienne N. Bellot, McKinney, Bancroft & Hughes
Perhaps the biggest concern cited was that confidentiality could not always be guaranteed, particularly if an award is challenged, as was the case in the Volpi decision. However, in our view, the Volpi decision sets precedent in determining the approach of the court when an (trust arbi- tration) award is challenged, which, if anything, should dissuade the same. Other concerns include: (i) whether neutrality could be guaran- teed; (ii) choice of representative; (iii) speed; (iv) unborn/unascertained beneficiaries; and (v) the untested nature of trust arbitration. Again, this is why the Volpi decision is so important to the development of trust arbitration. It is an invalu- able contribution to trust arbitration as it has tested and proven the viability of the same. Independent of the criticisms levelled against the use of arbitration to resolve trust disputes, there are proponents of the practice. If an award goes unchallenged, a dispute has the potential to be settled within a matter of days and is not bound by the court’s calendar with the assur- ance that such award is confidential. This is even more so now that the amendments to the Act provide for a party or arbitrator who improperly discloses confidential information to be liable to a penalty in damages. In fact, much of the con- cerns raised by the critics of trust arbitration are considered advantages by those who support and recognise the potential of trust arbitration – an area for positive development.
With The Bahamas’ reputation for financial ser- vices, coupled with a skilled legal sector and jurisprudence coming from the jurisdiction, it is certain that The Bahamas will continue to be a haven for trust arbitration.
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