Law as a tool for development: my thoughts on Arbitration being used as a tool for economic development in Jamaica
Abraham Lincoln once said that:
“great things may come to those who wait, but only the things left by those who hustle.”
I had the good fortune of recently attending an arbitration conference in Jamaica (August 28). This was the first of its kind, and hopefully to become an annual event — International Chamber of Commerce: Boosting the use of Arbitration in the Caribbean, by all indications was a huge success.
As I reflected on the conference I knew I wanted to write an article about it but what exactly should I write about? There was so much good stuff to write about, so rather than cover what happened at the conference or delve into my major take-aways I have decided to do something a bit different.
And I hope you like it.
Arbitration is a clear winner in demonstrating how the law can be used as a tool for economic development. Click To Tweet Jamaica’s Arbitration Act, 2017, is just the latest test case of the law as an economic development tool. The law has at its very heart the objective to:
facilitate domestic and international trade and commerce by encouraging the use of arbitration as a method of resolving disputes.
With that firmly in mind here are my thoughts:
A modern Arbitration Act in Jamaica has been a long time in coming and, while good things come to those who wait, but as Abraham Lincoln has been reputed to have said: only things left behind by those who hustle. The new Arbitration Act, 2017 repeals and replaces an Act that dates back to 1900 and is based on an even older English Act from the late 1800’s. And, yes you are reading those dates correctly.
Jamaica on the move
Jamaica is on the move. The Boosting the use of Arbitration in the Caribbean conference is a clear demonstration of the Jamaican hustle. We are on the move to position ourselves as a regional player in the arbitration space. We might be late to the modern Arbitration party but we are off to the races.
A special thank you has to go out to Dr Christopher Malcolm and his team from the Jamaica International Arbitration Centre who collaborated with the Jamaica Chamber of Commerce (JCC) to help organize the event. An event that saw the ICC in Jamaica hosting an arbitration conference and giving the country its full endorsement of. Like I said, the Jamaican hustle.
Imagine if you will a small island-state that in this globalized world that spoke English; sits astride some of the most important trade routes in the world; has major population centres in almost every direction around it; a trained and trainable workforce; and has a logistics centred economy that has the constant never-ending improvement as its guiding principle.
No, I am not talking about Jamaica. Well, at least not yet.
Singapore, is considered a relative late entrant to the arbitration space, and demonstrates for Jamaica a workable model where the transformational power of bringing disparate elements together to function as a cohesive whole. A key part of this of course was the adoption of the UNCITRAL Arbitration Model law.
The right policy framework makes a world of a difference.
Naturally, Singapore was not an overnight success in arbitration. However, they were able to leverage:
- their ability to speak the lingua franca of global commerce;
- their geo-strategic location; their proximity to major markets;
- their cadre of well-trained legal professionals; and
- their economy that thrives on getting the right product, in the right quantity, in the right condition, to the right place, at the right time, for the right price and to the right customer for success.
Singapore Lesson for Jamaica
What Singapore realized — and this is a real lesson for Jamaica — was that its attributes as a logistics centred economy and logistics hub put it in a unique position in its region to develop and market itself as an arbitration hub for south-east Asia.
In fact Singapore has not only become a major ‘seat’ of arbitration it has become a major ‘choice of law’ jurisdiction for international commercial contracts. We are now seeing in 2016 more than 40 per cent of the arbitral cases received by Singapore having no connection with Singapore, which shows the growing use of Singaporean law to underpin business contracts in Asia.
Importance of legal and industry expertise
Singapore success as a seat and choice of law — an arbitration hub — while underpinned by its political stability, its English legal tradition, its adherence to the rule of law and its pro-arbitration policy and legislative framework also relied on its legal and industry expertise developed over many years as a logistics hub in a wide ranging areas such as:
- Commodity trading
Just to name a few.
What does success look like? Singapore
According to data from the Singapore International Arbitration Centre (SIAC), it received 343 new cases from parties from 56 jurisdictions. This was a 27% increase from the 271 cases filed in 2015 and a 55% increase from the 222 cases filed in 2014. The aggregate sum in dispute for all new case filings amounted to USD11.85 billion (SGD17.13 billion).
Now that’s what I call success.
Jamaica well positioned — timing
Jamaica’s entrance to the modern arbitration but that delay might just turn out to be a blessing. We are witnessing a situation where the volume and size of disputes being settled by arbitration are on the rise. In fact, given our positioning as a logistics hub and current legal and industry expertise we are well place to serve the main end users of arbitration which include building and construction, maritime and shipping, transportation, hospitality, insurance, and telecommunications industries.
Arbitration as a tool for development
While it is true that arbitration is not perfect, its speed, flexibility and adaptability is what makes it so attractive to users. From a policy perspective it is this very nature of arbitration that makes such a major tool of economic development. Arbitration improves a nation’s competitiveness by being a mutually reinforcing mechanism for the ease and speed of doing business. It provides business with the assurance — the commercial and legal certainty — they require to transact business locally and internationally, knowing that Jamaica is well placed to serve both as seat of arbitration and as a choice of law for their contracts.
Originally published at www.commerciallawinternational.com on September 6, 2017.