DON
MITCHELL CBE QC
OWEN LANE, NORTH HILL
P
O BOX 83, THE VALLEY
AI-2640
ANGUILLA, BWI
Landline:
(264) 497 2139
Cellphone:
(264) 235 8654
Email:
idmitch@anguillanet.com
28 May 2014
Mr
Don Rose
Interim
Project Manager, Jurist Project
Caribbean
Court of Justice
314
Henry Street
Port-of-Spain
Trinidad
Dear Mr Rose,
Caribbean
Commercial Courts
Thank
you for your invitation to submit a paper about Commercial Courts for use in
planning for specialized courts for a Project Implementation Plan that you are
preparing.
I
am afraid that anything I shall say about the role of the Commercial Court in
the West Indies of today will probably amount to no more than stating the
obvious. The Faculty of Law of the University
of the West Indies, Cave Hill Campus, is hosting the 13th Annual Caribbean Commercial Law Workshop in Trinidad from
August 10-12 at the Hyatt Regency in Port-of-Spain. The theme of the workshop is “Re-Building the
Region: The Role of Caribbean Commercial Law.”
The persons who will speak at this workshop will undoubtedly have views on
the potential role of Commercial Courts based on extensive experience and
study. None of the trivialities that I
can say will compare with the learning that will come from this exercise. However, I am confident that nothing that
will come from the workshop will contradict the thoughts that I offer here.
As
I see it, the need for specialized commercial judicial services in the West
Indies exists at two levels. The first
and most important is the local, and the second is the international. I deal first with the international.
Several
of our OECS jurisdictions, including the Virgin Islands, Anguilla, Montserrat, Antigua
and Barbuda, St Kitts and Nevis, Barbados and St Vincent and the Grenadines,
have made a deliberate effort to fashion themselves as bases for international
financial services, with varying success.
The BVI has undoubtedly been the most successful. The legitimacy of locating international companies
of every type in West Indian international financial centers depends to a large
extent on the perception that mind and management is located here. Providing court services for the resolution
of international disputes involving our locally incorporated structures will
give substance to that perception. The
international financial centers of Hong Kong, Singapore, London and New York
know that. One of the reasons their international
financial services industry has developed so substantially is the existence of
highly specialized, swift and efficient judicial services.
Foreign
lawyers have stated at conferences that it is unrealistic for us to imagine
that any reputable financial advisers in New York or London will send their
business to one of our States or Territories if they are not assured that they
will find a specialized Commercial Court located there for the resolution of
disputes involving their clients. At the
moment, there is no Commercial Court outside of Tortola serving the Eastern
Caribbean Supreme Court system. A
dispute involving the shareholders or management of a St Vincent offshore
company must necessarily take its place in line behind divorce and ordinary
civil suits filed at an earlier date.
This is not satisfactory. If our
financial centers are to have any credibility, we need to establish the
capacity to swiftly and efficiently determine international commercial disputes
involving our structures. Whether our
governments will be willing to make the investment that the government of the
British Virgin Islands made in its Commercial Court, is unclear to me.
Most
of the independent Commonwealth Caribbean Countries are high tax
jurisdictions. They hold no interest for
international financial planners and advisers.
It is not realistic for them to be contemplating an internationally
recognized commercial court. However,
the notorious delays in achieving justice through their court systems need to
be addressed for the sake of local economic development. Any available international commercial work
will flow naturally once the infrastructure is present.
So,
I come to the need for a specialized commercial court for the settlement of
local commercial disputes. I submit that
we cannot any longer rely on the antiquated plantation system of having a
dispute between major commercial enterprises, or between one commercial
enterprise and the government, stand in line behind the divorce list and the
criminal trials awaiting judicial attention, as presently occurs. Our High Court judges, bright as they are,
come generally from a public service background. They are usually drawn from the ranks of
Registrars, Magistrates, and Solicitors General. That practice does not always place emphasis
on the commercial necessities of speed and experience in commercial law
principles. The future fair and balanced
development of our economies will depend to an increasing extent on the
swiftness and efficiency with which we can resolve local commercial disputes. The speakers at the Workshop will demonstrate
and prove this, I am confident.
In
my view, the need for a specialized division of the court system to more
speedily resolve commercial disputes at the local level is pressing. A Commercial Court Division ought to be
instituted in each of Supreme Courts.
The infrastructure and the staffing of such Courts ought to be of the
highest quality to inspire the necessary confidence.
Yours sincerely,
Don Mitchell
