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
28 May 2014
Mr Don Rose
Interim Project Manager, Jurist Project
Caribbean Court of Justice
314 Henry Street
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.