By FAY SIMMONS
THE OPPOSITION’S finance spokesman yesterday voiced concern that Bahamians may be left behind if this nation moves too swiftly to establish itself as an international arbitration hub.
Kwasi Thompson, former minister of state for finance in the Minnis administration, said passage of the International Commercial Arbitration Bill and reforms to the existing Arbitration Act 2009 may be moving too swiftly to properly prepare Bahamians to be “masters” of the proposed alternative dispute resolution (ADR) sector.
He said: “Whether we are moving ahead with this as an industry we also, at the same time, should be preparing Bahamians to be masters of this industry. If the legislation, and if the industry, moves ahead faster than the preparation of Bahamians to take on the industry then we risk being overtaken when it comes to being the masters of this industry.
“While I believe all sides believe this is a positive advancement - it is an industry that we want to advance, it is something that will push forward. At the same time, we must also ensure we prepare Bahamians for what is to come. If that means, when we move this ahead, at the same time we have an Institute for Arbitration, at the same time we encourage, prepare, fund those type of institutes to make sure that we make it easier for Bahamians to to be advanced in this area. And it’s not just being the arbitrators, but it is also being the person who will represent the parties in the industry as well.”
Mr Thompson also also questioned whether foreign arbitrators will be required to practice alongside a Bahamian counterpart. He said: “I know that the Bar Council has particular rules in terms of the practice of lawyers, or persons who are coming in, when it comes to the practice of lawyers. That if you’re going to be called to the Bar as international person you obviously have to be referred to and have a Bahamian counterpart that is going to put you forward.
“But what would happen for those... because it’s my understanding that you don’t necessarily need to be called to the Bar to do arbitration. And so if, as a lawyer, you must have a Bahamian counterpart to at least present you to court, do we want to also think about if an international person comes that we want to also connect them with a Bahamian counterpart [for arbitration]?
“So that when they are connected to the Bahamian counterpart, if there is a transfer of knowledge, then they can also have an opportunity for transfer of knowledge as well. That would ensure that if you have a well-known or well-educated, well-trained, well-experienced arbitrator that comes to The Bahamas, they will be connected to a Bahamian so that they can transfer that knowledge to a Bahamian,” Mr Thompson said.
“If you have a particular case, a big case and you have international arbitrators that come, it would also ensure that Bahamians would have an opportunity to sit at the table to experience those kinds of cases as well.”
He also raised the issue of foreigners establishing arbitration firms within The Bahamas, citing that the Bills do not explicitly speak to this. “We also would want to somehow protect against, or ensure, that Bahamians participate in having -because I could envision - persons having firms, arbitration firms where you may have a non-Bahamian that comes and sets up an arbitration firm and they are bringing in non-Bahamians and set up shop here in The Bahamas,” Mr Thompson said.
“Because there doesn’t seem to be anything in the Arbitration Act that prevents persons coming in and setting up arbitration firms and operating here in The Bahamas. Yes, there are Immigration laws that have to occur. But there’s nothing in the Arbitration Act that says that if I agree to have two Americans or three Americans to come in as arbitrators, there isn’t anything that prevents them from coming in.”
Keith Bell, minister of labour and Immigration, clarified that any non-Bahamian seeking employment in this nation must first obtain a work permit regardless of profession. He said: “Anyone coming to The Bahamas for work, they must abide by the Immigration legislation in the Act, and they will be required to get a work permit.
“So whether or not, and you will find other pieces of legislation - not necessarily just this - as it relates to the medical profession, doctors, nurses, all of the different professions, they have to still comply with the Immigration Act. They must get a work permit.
“And so that responsibility still falls on the Government as to whether or not to allow these persons in. So somebody, some foreign non-Bahamian, cannot come in this country and arbitrarily set up an arbitration company without coming to the Immigration Department and first of all obtaining a work permit. That will not happen.”
Mr Thompson continued: “There is something called sites when you speak to arbitration centres. So you could say that the site is either in The Bahamas or the site is Turks and Caicos and so on. And you made the amendment in the Arbitration Amendment Bill that really says the Arbitration Act only applies to where the seat is in The Bahamas - again, no difficulties with that.
“But from what I understand, the seat and the place for the hearing could be two different places. So you can have the seat as The Bahamas, but the place for the hearing could be Miami. The place for the hearing could be land which, in my view, defeats the purpose in terms of encouraging The Bahamas as an arbitration centre because I would suggest that we don’t just want the site to be here, but we also want the actual hearings to be here.
“My suggestion would be that we find a way, whether it is through legislation or otherwise, to encourage not just the site to be here, but to encourage the hearing to be here. If we really want this to be a centre, then all of the ancillary things of why we want it to be a centre are here. We want persons to travel here. We want persons to be here. We want them to set up in our hotels. We want the centre to actually be here. We want you to come and spend the money here. To be able to just be a site, I don’t believe it’s enough.”