Arbitrating in Bermuda: The need for a dedicated Alternative Dispute Resolution Centre
Dr Tariq Mahmood1
July 14, 2023
In the 1990’s Bermuda sought to take advantage of the growing need for resolving disputes in international trade and commerce by arbitration rather than by litigation in national courts. The time was ripe for Bermuda to do so. The North American Free Trade Agreement (NAFTA) and other developments in international trade, Bermuda’s neutral geographical location and a system of justice based on English law made it well positioned to succeed. The architects of this vision of the future brought about the enactment of the Bermuda International Conciliation and Arbitration Act 1993 which supplied Bermuda with a necessary and internationally recognized system of law to govern international arbitrations (the UNCITRAL Model Law) while retaining the existing system for domestic arbitrations (the Arbitration Act 1986).
For a number of reasons unrelated to the soundness of the idea, realizing the dream of the 1990s has been slow. Recent experience in an international Bermuda Form arbitration has shown that the opportunity to develop Bermuda’s potential still exists and that with new energy injected the dream can easily be transformed into reality. The next step would be to have a facility designed and operated specifically as a venue for alternative dispute resolution2. Institutions already exist elsewhere which can be utilized as a model for such a facility. This facility would be used three-fold, to hold arbitration hearings, to hold mediations, provide conference facilities and training to the next generation of lawyers.
The absence in Bermuda of a purposely designed and operated institution means that arbitrations/mediations are held in hotels where rooms are hired for the conduct of hearings and breakout sessions. Audio/visual and other office equipment has to be purchased or rented; the configuration of the hearing room has to be debated and planned; and then set up and dismantled afterwards. Special arrangements must be made by the parties for transcription and document handling (and occasionally videography) services; all at great inconvenience and extra cost.
Bermuda is a very arbitration-friendly jurisdiction. Its laws and policies allow participants to come from abroad with minimum governmental and no professional regulatory restrictions (e.g., by the Department of Immigration and Bermuda Bar Council). Bermuda has adopted an internationally recognized system of law - the UNCITRAL Model Law, which governs unless the parties expressly agree otherwise - and arbitration is supported by the Bermuda judiciary. The 1993 Act embodies the universally acclaimed New York Convention which limits the circumstances in which the enforcement of international arbitral awards can be resisted. What now needs attention is the physical infrastructure for holding arbitration hearings.
2The facility could also be used for taking the evidence of witnesses in Bermuda for foreign proceedings and tribunal hearings.