Caribbean-wide: A Dispute Resolution Overview

The Caribbean, and the dispute resolution work that continues to be generated from within it, is far from uniform in nature across its English-speaking jurisdictions. The Judicial Committee of the Privy Council, London, England, remains the apex appellate court for some of those jurisdictions. The Caribbean Court of Justice (CCJ), Port Of Spain, Trinidad is the apex appellate court for Barbados, Belize, Dominica and Guyana. As many as 12 Caribbean Community (CARICOM) member states are signatories to the agreement establishing the CCJ and are subject to its original jurisdiction (that is, non-appellate), handling treaty disputes within CARICOM. As to CCJ as an apex appeal court, this applies to Barbados, Belize, Dominica and Guyana.

The same applies to resources devoted to specialist judiciary capable of handling both complex commercial litigation and insolvency work, and delivering prompt decisions. In both of these areas of law, there are clear onshore influences and differences. Canadian insolvency law has heavily influenced several of the sovereign nations – for example Trinidad, Jamaica and St Lucia. As is to be expected, the insolvency laws of England and Wales are reflected across the British overseas territories. An oddity within the Constitution of the Federation of St Christopher (St Kitts) and Nevis is that there is different companies legislation between those two islands. The commencement of a liquidation process under Nevis company law is known as a dissolution, whereas dissolution refers to the very end of the equivalent process across most of the rest of the English-speaking jurisdictions within the region.

The Insolvency Act 2003 of the British Virgin Islands, coming before the financial crisis of 2008, has created a useful body of case law in respect of hedge fund liquidity (or lack thereof) and its legal implications. Surprising to many, given their pre-eminence amongst offshore financial centres, is the relative antiquity of the base legislation on companies and insolvency in both the Cayman Islands and Bermuda.

With strong economic growth centred around oil production, Guyana is seeing a continued increase in public law and constitutional challenges in respect of environmental and climate change issues, as well as a growing number of arbitral disputes. The three largest islands, Trinidad, Jamaica and Barbados, have substantial ongoing infrastructure disputes. Port of Spain, Trinidad continues to house the CCJ. An oddity is that Trinidad and Tobago maintains as its final Court of Appeal the Judicial Committee of the Privy Council, in London, England.

The smaller sovereign nations that maintain citizenship by investment programmes (Antigua, Dominica, Grenada, St Kitts and Nevis and St Lucia) have faced issues in respect of the rights of such citizens being protected in the context of adverse actions by larger jurisdictions. It remains to be seen how those issues of sovereignty will play out, especially in the context of sanctions-related pressure. St Vincent and The Grenadines are planning the launch of their own citizenship programmes.

Within the British Overseas Territories located in the Caribbean, there are perhaps the widest differences of all: from the economic powerhouse that the Cayman Islands has become, the British Virgin Islands’ continued status as market leader in incorporations (with the resulting court work that this produces) and the insurance/reinsurance pre-eminence of Bermuda to the real estate-oriented jurisdictions of Anguilla and the Turks and Caicos Island (TCI). Recent TCI disputes work has included Islander status, asylum and same-sex marriage public law challenges.

As a jurisdiction that allows foreign laws in court only where they are of King’s Counsel or Senior Counsel designation, the Bahamas often generates high-quality work around issues involving trusts or other fiduciary structures. Reputationally, the Bahamas seems to have moved past the FTX crypto debacle.

Relative to the size of several of the jurisdictions, the Caribbean is spread across a wide area. On cross-border dispute issues (often in the realm of insolvency and/or judgment enforcement), relationships remain crucial to getting things done a timeframe acceptable to onshore co-counsel or end-user clients. Where there are challenges in terms of delivery, there continues to be much opportunity.

The legal communities also differ widely, from the relatively large concentration of graduates from one of the three law schools in Trinidad, Jamaica and the Bahamas to the heavily onshore expatriate legal professions of Bermuda, the British Virgin Islands and the Cayman Islands. Centrally accredited, run and awarded, there are many practical advantages to obtaining the legal education certificate in jurisdictions that require it for Bar admission.

Differences in constitutional protections often reflect the era in which a given constitution was brought into force. The more modern ones (prohibitions on discrimination for reasons of sexual orientation – TCI) reflect concerns as to contingency liability for the United Kingdom. Similar issues exist and continue to escalate around the expropriation of property and the low proportion of eligible voters relative to the total population. In the public law context, across the Eastern Caribbean (the jurisdictions of which share a single set of civil rules of procedure), the need for court permission (“leave”) for the bringing of judicial review proceedings was abolished in 2023, as was the need for permission from the court for the service of proceedings outside of the jurisdiction. That encompasses three of the region’s British overseas territories (Anguilla, the British Virgin Islands and Montserrat). Both service permission requirements exist in other British overseas jurisdictions (such as TCI).