The Tribune

IN AN interview with our business editor last week an outspoken QC declared that “Bahamianisation has been more of a curse to The Bahamas than a blessing”.

It, and the dictatorial and unfair manner in which it has been administered over the years, has been the greatest hindrance to the growth of this small island nation. We are little fish in a big pond trying to out swim the big fish, which swish past drowning most of us in their wake. And yet some of us, although we keep flapping, are getting nowhere.

Fred Smith, QC, told our Business Editor, that the “Bahamianisation concept had helped foster a sense of entitlement and professionalism at the expense of maintaining high performance standards”.

He said it had also helped create a political and economic elite who had been able to profit at the expense of the rest of Bahamian society. “It dumbs down the quality of service to simply benefit nationalism,” he said.

“It decreases opportunities for competition, the provision of cutting edge products to the consumer, and ultimately only benefits a select few.”

Mr Smith, as would many other successful lawyers, wants to see a liberalisation of the legal profession. However, there are lawyers, such as Paul Moss, principal of a Bahamas-based financial services business, who rejects the idea of opening the Bahamas Bar to specialist practitioners and law firms.

“As a senior practitioner,” Mr Smith told our editor, “I very much support the liberalisation of the Bar. It is certainly in keeping with our international obligations, in particular to CARICOM, and the free movement of people between Caribbean nations.

“Given that The Bahamas promotes itself as a safe, and competitive jurisdiction in which to do business, expanding and liberalising our Bar, and allowing foreign practitioners to appear in the country will expand the jurisdiction and legal services industry,” he said.

In the mid-nineties, there was much talk in Nassau in legal circles about setting up an international arbitration centre for commercial conciliation. Dubai was mushrooming into a region to be watched at the time — it had enticed Sir Sol Kerzner to duplicate Atlantis on a specially built palm-shaped island there.

In 1994, it had set up the Centre for Commercial Conciliation and Arbitration, and created Emirate Airlines, the largest airline operating at its modern airport. Today it is the largest arbitration centre in the Middle East. It is a non-profit institution that is independent in its operations from the Dubai government and Dubai Chamber of Commerce. It provides international business communities with commercial arbitration services, including modern and well equipped meeting/hearing rooms. It has also developed a pool of experienced arbitrators from different nationalities and legal backgrounds. And, more importantly, it is not hamstrung by immigration — it can attract the world’s best and, therefore, offer the best that the world has to offer in expertise. Not so in The Bahamas.

Here we are hamstrung by an island complex and a myopic immigration department. While Dubai has its Arbitration Centre (CIArb), Bahamians are still talking.

In May, 2014, speaking at a conference hosted by the Bahamas branch of the Chartered Institute of Arbitrators, another Queen’s Counsel, Brian Moree warned that the idea of barring international clients from having foreign lawyers in dispute resolutions is an “absurdity”.

“To merely state that we want to be a regional international arbitration centre, but we don’t want to allow any foreign lawyers reveals the absurdity of that position – it cannot happen,” he said at that time.

“If foreign lawyers cannot have free ingress and egress in and out of our country, there will be no chance that our centre will be used,” he warned.

Arbitration is a form of alternative dispute resolution that seeks to settle disputes outside of court. The Bahamian branch of CIArb and other organizations have long sought to establish the Bahamas as a regional centre for arbitration, leveraging its strategic geographic location to attract business from the Americas. Mr Moree, warned that The Bahamas stood “no chance” of establishing itself as a regional centre for international arbitration if it does not revamp its immigration policy on foreign lawyers.

He said that parties utilising a future arbitration centre in The Bahamas needed the freedom to bring in whomever they chose with their legal and litigation support team. The project would not succeed if future clients and support staff have to go through the current work permit process. “It cannot be overly bureaucratic, and it must not take too long, Why? Because they’ll go elsewhere.”

Now more than two years later Mr Fred Smith, QC, is arguing the same point. But as Mr Moree had said earlier: “If we’re not able to do it, let’s not waste our time talking about an arbitration centre, because it isn’t going to happen.”

Unless the immigration problem can be removed, 20 years from now another generation of Bahamian will be swimming aimlessly around in the same fish pond and getting nowhere. Is that to be the future of The Bahamas?