By NEIL HARTNELL
Tribune Business Editor
The Bahamas’ International Arbitration Centre ambitions have “no real prospect of being successful” unless this nation adopts a “smart” Immigration policy that allows parties to bring in their own, foreign attorneys, a leading QC warned yesterday.
Brian Moree, senior partner at McKinney, Bancroft & Hughes, said insisting that parties using this country as an International Arbitration forum use only Bahamian attorneys was “fundamentally inconsistent” with the rationale for such a facility, and doom its prospects for success.
Acknowledging that Immigration issues were slightly different in the context of an International Arbitration Centre, when compared to the rest of the financial services industry, Mr Moree said both still required a flexible, progressive policy that balanced industry needs with the Bahamian workforce’s interests.
“It’s fundamentally inconsistent to talk about establishing an International Arbitration Centre while, at the same time, suggesting persons that use this Centre be compelled to retain only Bahamian attorneys to represent them,” Mr Moree told Tribune Business.
“Certainly, there would ne no real prospect of an International Arbitration Centre being successful if we did not allow persons using it to be represented in these matters by lawyers of their choice from whichever countries they may come from.”
Establishing the Bahamas as an International Arbitration Centre player, particularly in niches such as maritime and financial services disputes, has been a key strategic focus for successive administrations.
The former Ingraham administration passed the enabling legislation in 2009, and building on this foundation by bringing a Bahamian Arbitration Centre to reality has been a priority for Ryan Pinder, minister of financial services.
Recently disclosing that the Prime Minister had given permission to form an Arbitration Council, which would oversee moves to create such a facility, Mr Pinder reiterated the importance he attached to the initiative.
He told the recent International Business and Financial Summit (IBFS) that the Bahamas aimed to target “niche markets”, such as maritime, financial services and trade disputes, acting as “the gateway to Latin America” for alternative dispute resolution (ADR).
However, Mr Moree effectively warned yesterday that the International Arbitration Centre plans would be stillborn unless accompanied by a flexible, modern Immigration policy that permitted foreign attorneys and arbitrators to enter the Bahamas and work on specific disputes.
Implying that the two - Arbitration Centre and Immigration policy - would have to work ‘hand in glove’, Mr Moree said the success of such facilities depended on international businesses and commerce selecting the Bahamas as a forum for resolving their disputes.
“If it’s going to work, if people are going to come, it’s going to have to be competitive with other regional [arbitration] centres,” Mr Moree explained.
“When someone is writing arbitration clauses into commercial documents, they’re going to look at the options they have, and the strengths and weaknesses of different centres.
“The ultimate success of an Arbitration Centre is very closely related to your ability to sell yourself to the marketplace; the competitive advantages you have over other arbitration centres, like Barbados. Jamaica, too, is trying to get into it.
“This is a business which really depends on your ability to sell your product to a very discerning and sophisticated market, which is looking for the best place to resolve its international disputes,” Mr Moree added.
“The cost factor is a big issue, and the ability to use your own lawyers for dispute resolution is a big issue.
“If we say you have to use Bahamian lawyers, it will be fundamentally inconsistent with the concept of an International Arbitration Centre, and we could not succeed, in my view.”
Explaining why Immigration in the context of an International Arbitration Centre was different from the financial services industry as a whole, the top QC pointed out that with the former, foreign attorneys would only be coming into the Bahamas for a specific dispute - staying for several days, or a few weeks.
They would not be able to practice in the Bahamian courts, and thus had a “much more reduced scope” than specialist foreign attorneys practising in financial services, who would be in this nation for several years before leaving after transferring their expertise to local practitioners.
“The issues are different, but they both have to be supported by a smart and modern Immigration policy that promotes the product while recognising the aspirations and legitimate concerns of the local workforce,” Mr Moree told Tribune Business.
He praised Mr Pinder’s recent comments on financial services-related Immigration issues, made at both the IBFS Summit and last week’s speech to the Eugene Dupuch Law School.
Focusing on what has been a sensitive, and weak spot, for the Bahamas and its financial services industry, Mr Pinder acknowledged that an international business centre required a “progressive” Immigration policy that promoted transparency and efficiency.
“Our goal is to work with the Department of Immigration to ensure a progressive immigration policy that protects and facilitates opportunities and mobility for Bahamians, while efficiently meeting the needs of business for occasional foreign talent,” the Minister told the IBFS conference.
“I would like to be clear: My Ministry understands that every international business centre operates with foreign talent, and that every centre has a rigorous Immigration process. However, our centre demands a responsive Immigration management system that considers domestic development goals.”
Mr Pinder promised that his Ministry would be meeting shortly with the Department of Immigration, industry regulators and the private sector to develop a “smoother Immigration policy” for the financial services industry.
The Minister also told the Eugene Dupuch Law School that a lack of specialist attorneys had held back the Bahamian financial services industry.
Mr Pinder said: “Some argue, although I do not necessarily accept the argument, that our financial services industry has suffered because we as a jurisdiction do not permit foreign specialist lawyers to practice in the Bahamas.
“I do agree with the proposition, however, that permitting foreign specialist lawyers in an industry such as financial services can enhance the industry. It will bring specialty in practice that we might not currently have; it brings international network to the industry to encourage international referral of business. I myself am a lawyer who is licensed in multiple jurisdictions, and has practiced law in multiple jurisdictions. I know first hand the potential benefits.
“If, however, we decide that we will go this route, we also must ensure a proper framework is put in place to allow for a transfer of expertise to Bahamian lawyers.”