The Tribune

By NATARIO McKENZIE

Tribune Business Reporter

nmckenzie@tribunemedia.net

NASSAU could become a “prime juridical seat for arbitration”, a leading Miami commercial litigation and arbitration attorney said yesterday, arguing that this was the “best course of action” for the Bahmaas to take.

Richard Lorenzo, a partner in the Hogan Lovells law firm, said that based on his own experience, the Bahamas should look to promote Nassau as a “juridical seat” like Miami has done, as opposed to a establishing an arbitration centre.

Mr Lorenzo, who was a panellist at the second annual Arbitration and Investment Forum, told Tribune Business: “I think that the best course of action is not to form a centre but to form a community that is going to promote Nassau as a juridical seat.”

He added that 15 years ago, Miami was relatively unknown in the international arbitration arena, and has since bolstered its profile, marketing itself as the ‘juridical seat” for Latin America.

“The juridical seat is where the arbitration is going to take place, and where you move to nullify the award if you’re dissatisfied with it. It requires a framework of laws and a judiciary that is highly receptive to arbitration. That clearly exists in The Bahamas,” said Mr Lorenzo.

“Nassau can surely become a prime juridical seat. It has the legal framework in place, and all it needs now is to really believe that arbitration is a viable form of dispute resolution. If it can convince people that that is the case, including the legal bar and the business community, it can begin to create an atmosphere where that can flourish.”

“Obviously you have to crawl before you can walk, and walk before you can run,” Mr Lorenzo added.

“Nassau can do what Miami did. Fifteen years ago, Miami was not on the arbitration map, but now it is today. What Miami did was market itself as a juridical seat for arbitration, getting a core group of legal practitioners along with the Government, the bench, the business community, and made it clear that Miami was a place where complex commercial litigation could be resolved in arbitration.

“It’s since grown that process, and I believe here in the Bahamas a similar thing can happen as long as there is a buy-in from the bar, the bench and the business community.”

Mr Lorenzo said that having a commercial court to deal with arbitration matters exclusively was a key component of Miami’s juridical seat establishment.

“One thing we felt as a Bar was important was to have a branch of the judiciary able to focus on arbitration,” he explained.

“What we did was approach the bench, and managed to create a division with the consent of the bench in the commercial court that exclusively was going to focus on all arbitration disputes.

“Creating a centre of brick and mortar, a place where arbitration is going to be resolved, can be challenging. That’s why I’m a big proponent of saying centrers are great, but it is going to be very challenging competing with the established centres that already exist, be it in New York, Paris and London. I think you’re better served with a juridical seat as Miami was,” said Mr Lorenzo.

Another panelist, Anthony Ross, QC, partner in Ross Scullion, offered a different view. “As far as the centre is concerned that might be a matter of location. As far as the the seat is concerned that might be a matter of philosophy,” he said.

“The great success Miami has had is as a result of marketing. The question is who do we want to market to. My position is we have to be prepared to give out there as good as anyone who can give right now. There are a lot of emerging markets; they go to Paris, London and New York because that’s where they are hard wired to think that they should be. I strongly think that what we have to recognise is that arbitration is here to stay.”

Financial Services Minister Ryan Pinder said the Government was looking to build around industry rather than geographic target markets.

“We’re the only jurisdiction with a Trustee Act that allows private arbitration dispute of trustee matters, and a jurisdiction that has the fourth largest ship registry in the world,” he said.

“Those are two niche areas of industry that we look to build around rather than do what Miami does successfully, which is saying come to Miami for all Latin American disputes.

“That’s not what we’re trying to do and we could not survive doing it. We couldn’t survive going head to head. They have more facilities, lawyers, commerce, business and economies of scale.”