Fri | Nov 24, 2017

Editors' Forum | Development boost - New Arbitration Act a big pull factor for foreign investors

Published:Sunday | August 27, 2017 | 12:00 AMErica Virtue
Christopher Malcolm
Pearnel Charles Jr
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Ahead of tomorrow's high-level arbitration conference in Kingston, recent amendments to the Arbitration Act of 1900 are being hailed as evidence of Jamaica's push towards economic development.

Business and government officials, who were guests at a Gleaner Editors' Forum last Wednesday, hailed the amendments as a step in the right direction

"This is a very important move for Jamaica. This is critical to levelling the playing field for our jurisdiction. It is not only a modernisation of the framework of how we settle disputes, with commercial transaction, but it is also about treating with how investors are going to see Jamaica," said Pearnel Charles Jr., state minister in the Ministry of National Security.

Charles Jr, an attorney-at-law, said the government has committed to the sustainable economic development of the country, a position which has spanned political administrations.

"This new thrust is a demonstrated and unified approach to the development of the nation, and it is something which must be done if we are going to have investors who know first-hand that there is significant legal risks, entering into large transactions (but) ... there is a settlement mechanism to treat with disputes that is fast, expedient, coherent, and consistent," said Charles.

He argued that the non-judicial status but binding decisions arrived at through arbitration makes the process attractive to investors.

Amendments to the Arbitration Act were based on the UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments adopted in 2006.

Legislation based on this model has been adopted in 75 states of 106 jurisdictions.

Senior lecturer in the Faculty of Law, Dr Christopher Malcolm, told the forum that the law and practice of arbitration internationally are developed along lines which teach individuals what must be contemplated and provided for agreements.

"A typical best-practice arbitration agreement will set out the language of the agreement, the place, times, arbitrators and a host of others things.

"As with any commercial agreement, you try to contemplate the issues that could arise and make provisions for them. The result you get from arbitration is no better than the quality of the arbitrator that you have," said Malcolm.

He noted that arbitration agreements identify individuals to continue the process in the case of the death of one of the parties, a concern that had been raised by Leader of Opposition Business in the Senate, Mark Golding.

"If you file a civil claim in the Supreme Court and somebody dies, the regular process of the law takes over. It deals with estate and everything else, because an arbitration agreement is a contract like any other. And the basis of a contract is that the parties are free to enter into any agreement they want subject only to applicable law," said Malcolm.

He noted that once the process is set out, no party can "contract out of the law".

According to Malcolm, where death is not specifically provided for, if it occurs, parties resort to what the law provides.

In addition, Malcolm noted that where there were unresolved disagreements, the courts may be asked to step in, but "will always honour contracts and will only intervene if there is absolute need".

He said arbitration relies on the court of the country, and for the system to work well, a functional court system is needed, a position which was endorsed by Charles, who told the forum that commercials courts will be a boost to the process of arbitration.

erica.virtue@gleanerjm.com