One consistent message resounded throughout the 3rd Annual BVI Arbitration Conference, which took place in November 2019: BVI courts take a pro-enforcement approach to arbitration awards and have no issue in exercising their broad powers to grant interim measures in support of arbitration proceedings.
Conyers Partner Tameka Davis spoke about the advantages of enforcing a foreign arbitral award, as opposed to a foreign judgment, in the BVI. Since accession by the BVI to the New York Convention, enforcement of arbitral awards became swift and straightforward; they can be initiated on ex-parte basis. The courts are prepared to relax formal rules in exceptional circumstances. For example, the BVI court recently held that the applicant’s inability to supply the original or a certified copy of the arbitration agreement was no bar to enforcement of the award. A party may skip the formal procedure for recognition and enforcement of an arbitral award and appoint a liquidator based on an unpaid international arbitral award. This arbitration-friendly approach makes BVI an attractive jurisdiction for the purposes of enforcement of arbitral awards. Once the award is recognised, it is treated as a judgment of the BVI court and all local enforcement measures against assets located in the BVI are available to the applicant.
The BVI Arbitration Act 2013 (the Act), which is based on the UNCITRAL Model Law (as amended in 2006), provides that as a general rule all arbitration matters are heard in closed court proceedings and information relating to the court proceedings cannot be published. The court will publish only judgments of major legal or public interest, and will accommodate a party’s reasonable request for concealment of any matter. On balance, enforcement of foreign arbitral awards is more straightforward than enforcement of foreign judgments in the BVI, for a number of reasons. If there are no reciprocal arrangements with a foreign jurisdiction, a judgment can only be recognized at common law by issuing a debt claim. There is a need to obtain a permission to serve the claim out of the jurisdiction where the respondent is a foreign party. Recognition and enforcement is only available if the judgment is for a sum of money.
To continue reading full articles in PDF format:
Arbitration Conference Reinforces the Preeminence of BVI for Enforcement of Arbitration Awards