Fred Mitchell Notes for Debate on the Arbitration Bill

16^th November 2009

This is a bill that is clearly long overdue.

It updates legislation that has been on the books in The Bahamas since 1889.

It has the support of the Financial Services Sector.

It was developed in cooperation with them.

The Member of Ft. Charlotte called for this early this year. He has been a strong advocate for the development of The Bahamas as a centre for arbitration.

Ryan Pinder, one of our party Vice Chairs, and an international tax attorney, sat on a Committee with the sector including the Attorney General’s office in the development of this Bill. Amongst others who helped to develop the Bill are Craig Gomez, John Wilson, Bertha Cooper-Rosseau, Wendy Warren, Ian Faire, Ruby Nottage, Hugh Small, and Peter Maynard. The Bahamas Maritime Authority received professional input from the firm Watson Farley Williams.

Our advice is that this Bill also has the support of the Bahamas Maritime Authority and the Bahamas Financial Services Board.

Given these antecedents, the Opposition supports the bill.

We support the bill for the following reasons amongst others:

It is another aspect of the total services package that we can offer to the world from The Bahamas as part of the Financial Services Sector.

It represents diversification of the financial services product.

It has the potential for job creation and an increase in our gross domestic product by increasing economic activity within the country.

It can also be an important support to the Maritime Services through the Bahamas Maritime Authority and the ship registry which we offer from The Bahamas.

It will be a way to promote the timely and hopefully less expensive way to resolve disputes between parties without recourse to the courts.

As an adjunct to that reason, it may also lessen the burden on the work of the courts by the extent to which disputes no longer have to go to courts for settlement.

It will help to develop expertise in the country for Bahamian lawyers, accountants and other professionals.

The devil of course is always in the details.

From a marketing point of view, this bill will no nothing for our country if there is not proper marketing of what we have and there is no product here in The Bahamas for those who are attracted by the bill.

My own view is that the Grand Bahama Port Authority should be encouraged to develop this idea, with the construction of special facilities and a special office to promote Freeport as such a centre.

This will mean in Freeport as it will mean in any other area where such a centre will be built that the infrastructure must work: the power, the electricity, the communications must be good. There must be a good skills base in the country of professionals including not only lawyers, accountants and professional arbitrators but also secretarial and support services as well.

This is always the worrying thing about these matters in The Bahamas and that is whether we are up to scratch in providing the support for the products we offer.

No more does this become more apparent than in the issues relating to recourse to the Courts of The Bahamas.

We understand that there was considerable discussion in the development of this bill about the extent to which the court would have authority over issues of arbitration.

The idea was actually to avoid the whole matter of the courts because once you get courts involved, this means delay.

According to our brief, the prevailing view in the Bill is that procedure would not be subject to challenge in the courts while substantive issues and enforcement issues would be permitted to be petitioned the courts under specific conditions.

Procedure means that you the Arbitrators follow their rules of how to conduct the arbitration but substance would mean: does the panel have the jurisdiction, power or authority to hear the matter or for example can it be enforced.

Even with this approach, I wonder if there is not too much recourse to the courts in this legislation.

And you well know my concerns about the courts here:

Despite the propaganda to the contrary, the watchword in Bahamian courts is delay, delay, delay

And this issue must be solved.

Simple interlocutory matters that is preliminary points are taking months if not years to be decided.

There is the question of the competence of judicial officers in the law.

Whether or not it is this lack of competence that is causing the delays.

Here I am talking now about the civil side for the moment.

The delays in the criminal side are a scandal. And contrary to what the AG recently aid that the Please Bargaining bill will continue to aid in reducing the backlog I venture to say without fear of contradiction that it has done no such thing. It has been a complete waste of legislative time.

So the point I make here with regard to the civil side of the courts is that as we consider his Arbitration Bill as a means of promoting the faster conduct and settlement of disputes, we have to provide the support services.

And one of the support services is our courts. And the delays cannot continue.

I have spoken to the Chief Justice about this and intend to write him formally about it.

Why is it that interlocutory matters require reserve judgments? Registrars taking 18 months to make decisions that can and should be made in 5 minutes.

You do not have to a Lord Denning for every little decision.

I told the Chief Justice that the use of ex parte orders in this country is also a scandal. Where someone goes into court, gets an order without the other side present, that order has the effect of freezing your access to your property and then you cannot get before a judge to get it discharged so you life is tied up for months if not years. We know the case of Jack Hayward whose property was taken away from him for two years before he was able to get it back. He was a rich man, imagine someone of ordinary means.

I know of a case today where a Judge has been promising a decision on the discharge of an ex parte order for eight months and a decision cannot be rendered.

One wonders is the Judiciary is aware of the affect of their decisions in these matters?

So in designing this bill as it is, one has recourse to the Courts but this will be of no help unless something is done to speed up the work of the Courts here, make their decisions more predictable.

I wonder myself whether or not as an adjunct to this there is not the need for Judicial training on a regular basis, in particular this propensity that some judges have for pulling a hair trigger, and then there is constant complaint about disrespect for counsel who appear before the courts, the courts always starting late and no explanations for late starts.

Is it possible that there be a Code of Judicial conduct which is enforceable in situations which do not require removal from office but perhaps some sort of reprimand?

The question is this Bill is nothing if it does not create opportunities for Bahamians.

There are 1038 Bahamian lawyers in this country and we hope that this bill creates opportunities for them and the other professionals.

And the government should know that the country is watching as the government decides who will replace the Director of Public Prosecutions. This is a job that should go to a qualified Bahamian, and the government must make this possible?