March 2021 | By Sophia Rolle-Kapousouzoglou
Dispute Resolution in The Bahamas: an introduction
The Bahamas is a common law jurisdiction. The legislative provisions of the Rules of the Supreme Court govern the procedure of the Courts in conducting litigation, and common law precedent is also relied on.
The Rules of the Supreme Court mirror the English Rules of the Supreme Court which have been superseded by the Civil Procedure Rules. The Bahamas is moving towards enacting Civil Procedure Rules which would result in changes to the case management process and a shift in procedure in some instances, enabling swifter resolution of cases that can be resolved without the need to progress to trial and with the ability for greater sanctions for non-compliance with the Rules which bind parties to progressing cases towards trial.
Civil cases are heard by the Supreme Court and appeals may be made to the Court of Appeal. The Judicial Council of the Privy Council is the court of final appeal. As a result, decisions of the Privy Council are highly persuasive save for where there is a difference in statutory provisions. The Bahamas Judiciary is comprised of one Chief Justice and fifteen Supreme Court Justices. There are five Justices of Appeal. This is a significant number of judges for an offshore centre and assists the court system in functioning efficiently. The Bahamas Bar is comprised of over one thousand attorneys, a number of whom have experience before the Court of Appeal and the Judicial Committee of the Privy Council.
Following the COVID-19 pandemic, court hearings including trials and contentious interlocutory applications have been argued remotely. The court system has not been hampered by the pandemic in terms of progressing cases.
Decisions of the UK Supreme Court are binding. Bahamian jurisprudence has therefore developed largely in ways that mirror English law, although in the area of trusts The Bahamas has developed certain statutory enactments such as i) provisions relating to the arbitration of trust disputes, ii) statutory enactment for the common law rule of Hastings Bass in order to declare the exercise of a fiduciary power void or voidable, iii) statutory limitations to disclosing information to a discretionary beneficiary.
In the area of insolvency the relief which is obtainable in cross-border proceedings largely mirrors the UNCITRAL Model Law and relief which is available in other offshore jurisdictions, which provides for greater cross-border cooperation and relief including the appointment of foreign office-holders.
Commercial litigation cases typically heard by the Supreme Court include applications concerning asset tracing, Norwich Pharmacal and other disclosure relief, applications for directions by trustees and contentious trust litigation, banking related disputes, property related disputes, insolvencies, receiverships and applications for interlocutory injunctions including Mareva injunctions.
However, it should be noted that The Bahamas does not at this time have the jurisdiction to grant free-standing injunctions in aid of foreign proceedings. The ability to grant a free-standing Mareva injunction could only be mandated by way of a legislative change and presently there is no discussion to do so. Additionally, there are limited remedies in the form of restructuring available for distressed companies. The Bahamas is a creditor friendly jurisdiction with limited options available for debtors who may require relief and assistance, although the Companies Winding Up Amendment Act 2011 provides for assistance and cooperation with foreign liquidators which may give rise to the possibility of restructuring through the use of cross-border proceedings. The Bank and Trust Companies Regulations Act 2000 maintains the public policy of The Bahamas to promote bank secrecy by preserving the confidentiality of a customer’s bank account information in court proceedings when an application is acceded to that the proceedings be heard in camera and that the court file may be sealed. The Bahamas is a very effective and mature legal environment in which to pursue the resolution of legal disputes.