Tue | Nov 21, 2017

Courts not shut out - Experts say arbitration not a rebuke of legal system

Published:Monday | August 28, 2017 | 12:00 AMRomario Scott

Concerns in some quarters that with the passage of the new Arbitration Act, courts and the traditional legal system could be circumvented, have been dismissed by Secretary General of the Jamaica International Arbitration Centre, Dr Christopher Malcolm. He instead declared that arbitration relied upon the court for proper functioning.

Emphasising that the process of arbitration is a tool of commerce based on contract law, Malcolm said that courts could never be ruled out on matters of law.

"Even though the arbitration agreement is workable, you can never oust the constitutional function of the court as a part of our democracy to intervene in appropriate circumstances," Malcolm, a former attorney general in the British Virgin Islands, said at a The Gleaner's North Street offices in Kingston last week.

"However, the courts will always honour contracts and will only intervene where there is an absolute need," he added.

Still, there was an admission by State Minister for National Security Pearnel Charles Jr that concerns about the overlapping of arbitration and court proceedings had been a point of contention in the Senate.

He agreed, however, with Malcolm that the courts were an integral part of the success of arbitration, admitting also that there needed to be more commercial courts.

 

BENEFITS

 

Issues fuelling the concerns were laid bare during the forum, where Malcolm, along with Larry Watson, president of the Jamaica Chamber of Commerce, tried to sell the benefits of arbitration.

Malcolm pointed out that the process of arbitration involved two components: the law for the substantive dispute and the law of the seat, or in other words, the law where the arbitration is taking place.

"Once you come to Jamaica to do the arbitration, even though you have clauses in the agreement relating to, for example, Japan law or Belizean law, because you have made the venue Jamaica, you are subjected to the procedural laws in Jamaica, which govern how things must be done," Malcolm, a university lecturer, explained.

 

Who can be an arbitrator?

 

The question of whether arbitration proceedings could put lawyers out of work was raised at the forum, this as one does not have to be a judge or lawyer to sit as an arbitrator. And, an advocate in an arbitration proceeding does not necessarily have to be a lawyer either.

Malcolm was careful, however, to note that expertise and experience were important factors in establishing the credibility of an arbitrator, which could inform parties when they are designing the process to be followed in the event of a dispute.

Malcolm said that the concerns about lawyers being cut out of jobs were unfounded. He argued that arbitration in Jamaica is likely to drive legal services.

During debate on the arbitration bill in the Senate earlier in March, a major criticism levelled against the Government by Senator Mark Golding, leader of opposition business, was that the Jamaican Bar Association had not been consulted.

romario.scott@gleanerjm.com