BRITISH VIRGIN ISLANDS Law and Practice Contributed by: Alex Hall Taylor KC, Richard Brown, Tim Wright and Simon Hall, Carey Olsen
13.4 Procedure for Enforcing Domestic and Foreign Arbitration There is no distinction between domestic and foreign arbitral awards. However, there is a dis- tinction between a New York Convention award and a non-New York Convention award. A New York Convention award may be recog- nised and enforced more easily by applying to the court under Sections 84–86 of the Arbitra- tion Act on an ex parte basis. 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 rec- ognised as a judgment or order of a BVI court. An applicant seeking to enforce a non-New York Convention 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. The person against whom the arbitral award (both New York Convention and non-New York Convention awards) was given may challenge enforcement on certain grounds under Section 83 of the Arbitration Act. However, given that the burden on the defendant is to show other - wise, the starting point under the Arbitration Act (especially with regard to New York Convention awards) is that enforcement of arbitral awards is mandatory unless one of the limited exceptions can be established. The BVI courts generally take a pro-arbitration approach to enforcement, and will not usually refuse to enforce, and will take a narrow view of public policy exceptions.
contrary to the public policy of the BVI may not be referred to arbitration. Aside from those exceptions, most forms of commercial dispute in the BVI are capable of being determined by arbitration, including share- holder 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 arbi- tral 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 Sub- ject Matters Not Referred to Arbitration .
216 CHAMBERS.COM
Powered by FlippingBook