Saint Kitts and Nevis: International Arbitration Comparative Guide

1 Legal framework

1.1 What is the relevant legislation on arbitration in your jurisdiction? Are there any significant limitations on the scope of the statutory regime – for example, does it govern oral arbitration agreements?

Arbitration in St Kitts is governed primarily by the UK Arbitration Act 1950, which was incorporated into the laws of St Kitts & Nevis by the Arbitration Act (Chapter 3.01 of the laws of the Federation).

The legislation is heavily supplemented by accepted common law principles, as well as by the body of case law that has developed through various judicial pronouncements in both the High Court and the appellate courts – in particular, the Eastern Caribbean Supreme Court and the Judicial Committee of the Privy Council – which interpret, define and supplement the simple provisions of the act.

The only significant limitation on the scope of the statutory regime is the fact that it does not govern oral arbitration agreements. Section 32 of the act defines an ‘arbitration agreement' as a written agreement to submit present or future differences to arbitration, so by definition oral arbitration agreements are excluded.

For persons engaged in international arbitration and using the facilities in St Kitts & Nevis, the limitations in the legislation are applicable only if St Kitts & Nevis is the seat of the arbitration. Quite often, the parties will agree on a seat other than St Kitts & Nevis, even if the applicable law for the dispute is that of St Kitts & Nevis. In this way, parties can have the benefit of low-cost arbitration by expert arbitrators in relatively short time periods.

1.2 Does this legislation differentiate between domestic arbitration and international arbitration? If so, how is each defined?

The Arbitration Act makes no distinction in substance between domestic and international arbitration. There is some difference in relation to the enforcement of domestic awards and foreign awards. By virtue of Section 26 of the act, a domestic award may be enforced in the same manner as a judgment or order of the High Court. In the case of a foreign award, certain other conditions which are set out in Section 37 of the act must be satisfied before the award can be enforced.

1.3 Is the arbitration legislation in your jurisdiction based on the UNCITRAL Model Law on International Commercial Arbitration?

The arbitration legislation pre-dates the UNCITRAL Model Law on International Commercial Arbitration, and since the introduction of the Model Law there has been no amendment or revision of the arbitration laws in St Kitts & Nevis.

1.4 Are all provisions of the legislation in your jurisdiction mandatory?

No. Most of the provisions are subject to the will of the parties, which means that they apply only where the parties have not expressly agreed otherwise.

1.5 Are there any current plans to amend the arbitration legislation in your jurisdiction?

We are not aware of any definitive plans to amend the legislation. Over the last two years, however, there has been ongoing discussions with the relevant government departments and other stakeholders – in particular, with regard to the possible adoption of the UNCITRAL Model Law on Arbitration and the ratification of the New York Convention.

1.6 Is your jurisdiction a signatory to the New York Convention? If so, have any reservations been made?

St Kitts & Nevis has not yet ratified the New York Convention.

1.7 Is your jurisdiction a signatory to any other treaties relevant to arbitration?

The following treaties relevant to arbitration have been ratified by St Kitts & Nevis:

• the Convention on the Settlement of Investment Disputes, 1965;
• the Convention Establishing the Multilateral Investment Guarantee Agency 1965; and
• the Agreement Supporting Programmes of the Overseas Private Investment Corp.

2 Arbitrability and restrictions on arbitration

2.1 How is it determined whether a dispute is arbitrable in your jurisdiction?

There are no statutory restrictions on the types of disputes that are arbitrable.

2.2 Are there any restrictions on the choice of seat of arbitration for certain disputes?

There are no restrictions on the choice of the seat of the arbitration for international arbitration. For domestic arbitration, the seat of the arbitration must be St Kitts & Nevis.

3 Arbitration agreement

3.1 What are the validity requirements for an arbitration agreement in your jurisdiction?

In order to be valid, an arbitration agreement must be in writing.

3.2 Are there any provisions of legislation or any other legal sources in your jurisdiction concerning the separability of arbitration agreements?

The separability doctrine has been accepted and confirmed as part of the general body of jurisprudence of St Kitts & Nevis in several court decisions, both at the High Court level and in the appellate courts – that is, the Eastern Caribbean Supreme Court and the Judicial Committee of the Privy Council, which is the final court of appeal.

3.3 Are there provisions on the seat and/or language of the arbitration if there is no agreement between the parties?

There are no legislative provisions on the seat or the language of the arbitration. Where there is no agreement between the parties, the arbitrator will determine these issues in keeping with the general body of case law on the subject.

The general approach to determining the seat is by reference to the jurisdiction that has the closest connection to the dispute.

In relation to the language, like all other official business, arbitral proceedings will be conducted in the official language of the state, which is English. As with most of the provisions in the legislation, the parties are free to agree on any language they choose.

4 Objections to jurisdiction

4.1 When must a party raise an objection to the jurisdiction of the tribunal and how can this objection be raised?

There is no time limit specified in the legislation. In fact, the provisions relating to the enforcement of foreign arbitral awards suggest that objections to jurisdiction may be taken even after an award has been made, as such an objection may form the basis on which an award may be set aside or refused enforcement by the court.

4.2 Can a tribunal rule on its own jurisdiction?

The Arbitration Act is silent on whether the tribunal may rule on its own jurisdiction.

If a dispute arises as to jurisdiction which the parties cannot determine by consent, the matter can be resolved through the court in an action for breach of contract. Additionally, by virtue of Section 21(1) of the Arbitration Act, an arbitrator may at any stage of the proceedings, and shall if so directed by the court or a judge, state in the form of a special case for the opinion of the court any question of law arising in the course of the reference. This provision allows the arbitrator to seek the intervention of the court where the question of jurisdiction or other substantive legal issues must be determined.

4.3 Can a party apply to the courts of the seat for a ruling on the jurisdiction of the tribunal? In what circumstances?

Given the court's inherent jurisdiction, and to the extent permissible by Section 21(1) of the Arbitration Act, as indicated above, a party may apply to the court for a ruling on the jurisdiction of the tribunal. The act does not specify the circumstances in which such an application can be made. It will thus be left to the court to decide, on a case-by-case basis, whether to make a ruling on the application or refer the matter back to the arbitrator. This will depend on the nature and circumstances of the particular case.

5 The parties

5.1 Are there any restrictions on who can be a party to an arbitration agreement?

No. Anyone with the legal capacity to enter into a contract can be a party to an arbitration agreement, including private corporations, as well as the state and state-owned companies.

5.2 Are the parties under any duties in relation to the arbitration?

The legislation imposes no particular duty on the parties. However, based on general common law principles, the parties have an implied duty to maintain the confidentiality of the hearing and of any information disclosed during the hearing, unless that information was already in the public domain.

5.3 Are there any provisions of law which deal with multi-party disputes?

The Arbitration Act has no specific provisions dealing with multi-party arbitration. Where there are more than two parties to an arbitration agreement, the main concern relates to the appointment of a tribunal. In cases where the reference is to a single arbitrator, all parties must consent to the appointee, failing which an appointment can be made by the court upon application by any of the parties.

In cases requiring more than one arbitrator, the main concern is whether each party should be allowed to select an arbitrator or whether the parties should simply be grouped into claimants and respondents, with each group having the right to select one arbitrator. The former approach is more problematic, as it could lead to a large number of arbitrators, which could make the arbitration process complicated and costly. This issue can easily be settled by the parties themselves; otherwise, an application may be made to the court for the appointment of a tribunal.

6 Applicable law issues

6.1 How is the law of the arbitration agreement determined in your jurisdiction?

The law of the arbitration agreement is determined first by the expressed consent of the parties. This consent may be by way of a provision in the agreement itself or may be contained in a separate agreement. In the absence of agreement by the parties, the tribunal will seek to determine whether the choice of law can be implied from the terms of the contract or from any applicable rules selected by the parties. If none can be implied, the tribunal will make a determination based on the law that has the "closest and most real connection" to the agreement.

6.2 Will the tribunal uphold a party agreement as to the substantive law of the dispute? Where the substantive law is unclear, how will the tribunal determine what it should be?

Yes. Although there is no specific provision in the legislation to that effect, arbitration proceeds primarily on the basis of party autonomy. The parties are free to agree on any aspect of the proceedings, including what law should apply to the substance of their dispute, and the tribunal is bound to give effect to that agreement. Where there is no agreement, expressed or implied, the tribunal will determine the applicable substantive law by reference to:

• any discernible intention of the parties that is not contrary to public policy;
• evidence in the contract of any reasonable implication of law; and
• the most convenient place of enforcement.

7 Consolidation and third parties

7.1 Does the law in your jurisdiction permit consolidation of separate arbitrations into a single arbitration proceeding? Are there any conditions which apply to consolidation?

There are no specific provisions in the Arbitration Act on the consolidation of separate cases. However, the parties are free to agree upon rules of arbitration, whether institutional or ad hoc, which may contain provisions for consolidation or which give the tribunal the power to order consolidation.

7.2 Does the law in your jurisdiction permit the joinder of additional parties to an arbitration which has already commenced?

There are no legislative provisions on this issue.

7.3 Does an arbitration agreement bind assignees or other third parties?

Yes. In relation to assignees, Section 2(1) of the Arbitration Act provides that: "an arbitration agreement shall not be discharged by death of any party thereto either as respects the deceased or any other party, but shall in such an event be enforceable by or against the personal representative of the deceased."

In addition, Section 12 (1) of the act, which deals with the conduct of the arbitral proceedings, provides for the attendance of "all parties to the reference and all persons claiming through them" (emphasis added)

There is no provision under the act which specifically enables the joinder of third parties that do not have privity under the arbitration agreement. The parties can themselves agree to involve third parties in the arbitration. However, this will require specific third-party agreement; otherwise, difficulties could arise concerning:

• the scope of the agreement to arbitrate; and
• the jurisdiction of the arbitrator to hear the dispute.

8 The tribunal

8.1 How is the tribunal appointed?

The tribunal is appointed first, in any manner specified by the parties in the arbitration agreement.

In addition, the Arbitration Act provides for the appointment of the tribunal by the High Court in certain circumstances, which are set out in Section 10 as follows:

• The arbitration agreement provides that the reference shall be to a single arbitrator and all parties do not, after differences have arisen, concur on the appointment of an arbitrator;
• An appointed arbitrator refuses to act, is incapable of acting or dies, and the arbitration agreement does not show that it was intended that the vacancy should not be supplied and the parties do not supply the vacancy;
• The parties or two arbitrators are at liberty to appoint an umpire or third arbitrator and do not appoint him or her; or
• An appointed umpire or third arbitrator refuses to act, is incapable of acting or dies, and the arbitration agreement does not show that it was intended that the vacancy should not be supplied and the parties or arbitrators do not supply the vacancy.

8.2 Are there any requirements as to the number or qualification of arbitrators in your jurisdiction?

There are no statutory requirements as to the qualifications of arbitrators.

The parties are free to determine the number of arbitrators. Section 6 of the Arbitration Act states that: "unless a contrary intention is expressed therein, every arbitration agreement shall, if no other mode of reference is provided, be deemed to include a provision that the reference shall be to a single arbitrator." Based on this provision, if the parties do not agree on the number of arbitrators, the reference will be to one arbitrator.

8.3 Can an arbitrator be challenged in your jurisdiction? If so, on what basis? Are there any restrictions on the challenge of an arbitrator?

An arbitrator can be challenged on the basis:

• of lack of impartiality; or
• that the arbitrator has misconducted himself or herself, or has misconducted the proceedings.

These grounds are set out in Sections 23 and 24 of the Arbitration Act and apply without restrictions.

8.4 If a challenge is successful, how is the arbitrator replaced?

In such case the High Court may appoint someone to act in place of the arbitrator who has been removed.

In certain circumstances, instead of filling a vacancy, the court may order that the arbitration agreement shall cease to have effect with respect to the particular dispute.

8.5 What duties are imposed on arbitrators? Are these all imposed by legislation?

Arbitrators have a duty to be impartial and to act fairly in relation to all the parties. This duty is implied from the legislation, which provides for arbitrators to be removed by the court on grounds of lack of impartiality.

Arbitrators also have a duty at common law to maintain confidentiality in relation to the arbitral proceedings and any information disclosed to them during the arbitration.

8.6 What powers does an arbitrator have in relation to: (a) procedure, including evidence; (b) interim relief; (c) parties which do not comply with its orders; (d) issuing partial final awards; (e) the remedies it can grant in a final award and (f) interest?

(a) Procedure, including evidence?

In relation to the taking of evidence, arbitrators have the power to administer oaths and examine witnesses on oath.

(b) Interim relief?

Under Section 14 of the Arbitration Act, arbitrators have the power to grant interim relief. The section provides as follows: "Unless a contrary intention is expressed therein, every arbitration agreement shall, where such a provision is applicable to the reference be deemed to contain a provision that the arbitrator or umpire may, if he thinks fit, make an interim award, and any reference in this part of this Act to an award includes a reference to an interim award."

(c) Parties which do not comply with its orders?

Under the legislation, arbitrators have no coercive powers. An arbitrator will usually address this issue through discussion and agreement with the parties at their preliminary meeting, and will then make a procedural order establishing the ground rules as to what steps may be taken where a party fails to comply with an order made by the arbitrator.

In cases where the parties have identified the rules applicable to the arbitration, those rules may contain provisions addressing the powers of the arbitrator in case of non-compliance.

The options that are more commonly utilised by arbitrators include:

• drawing adverse inferences from the act of non-compliance;
• in cases where the non-compliance relates to the production of information or material, directing that the party in default shall not be entitled to rely on the particular information or material;
• proceeding to an award based on the information or material that has been provided; or
• where the non-compliance relates to certain payments, permitting the other party to make the payment subject to a reallocation of costs in the final award.

(d) Issuing partial final awards?

Under Section 13 of the Arbitration Act, arbitrators have the power to make an award at any time. In addition to interim awards, which are specifically provided for in Section 14 of the act, the arbitrator may issue a partial final award, unless this is expressly precluded by the submission or is inconsistent with the authority granted under a reference. This will often happen where the proceedings have been bifurcated to allow for separate issues to be dealt with at different times, with a final award being issued at the conclusion of each stage.

(e) The remedies it can grant in a final award?

According to Section 15 of the Arbitration Act, unless a contrary intention is expressed in the arbitration agreement, every arbitration agreement shall, where such a provision is applicable to the reference, be deemed to contain a provision that the arbitrator or umpire shall have the same power as the High Court to order specific performance of any contract other than a contract relating to land or any interest in land.

Subject to that limitation, and unless otherwise agreed by the parties, the arbitral tribunal may award any remedy or relief that could be awarded by the High Court in civil proceedings in relation to the particular dispute, including damages, injunctions and declaratory relief.

(f) Interest?

Section 20 of the Arbitration Act provides for the award of interest by stating that: "a sum directed to paid by an award shall, unless the award otherwise directs, carry interest as from the date of the award and at the same rate as a judgment debt."

By virtue of the Judgments Act, the rate of interest that will currently apply is 5% per annum.

8.7 How may a tribunal seated in your jurisdiction proceed if a party does not participate in the arbitration?

There is no specific provision in the Arbitration Act regarding this issue. In cases where the parties have identified the rules applicable to the arbitration, those rules may contain provisions addressing the powers of the arbitrator with regard to non-participation. If no rules have been agreed, the arbitrator will usually address this issue at the first preliminary meeting and make some procedural order establishing the ground rules as to what steps may be taken where a party does not participate in the arbitration. The arbitrator's obligation is to give the parties a fair opportunity to present their case and to meet the case presented against them. Arbitrators can adopt any internationally accepted standard or model to guide their decision as to how to proceed.

The most common approach is to follow the UNCITRAL Model Law when making their procedural orders. On that basis, the arbitrator can proceed as follows:

• If, without showing sufficient cause, the claimant fails to communicate its statement of claim, the arbitrator will terminate the proceedings;
• If the respondent fails to communicate its statement of defence, the arbitrator will continue the proceedings without treating the respondent's failure as an admission of the claim; and
• If a party fails to attend the hearing, the arbitrator will continue the proceedings and make an award on the basis of the evidence before it.

8.8 Are arbitrators immune from liability?

The Arbitration Act does not address arbitrator immunity. It is possible to restrict or exclude the arbitrator's liability by inclusion in the terms of reference under a submission; or the parties' arbitration agreement may contain an express exclusion or limitation of liability for certain acts or omissions of the arbitrator. Also, if the arbitration is by a court reference, the court order may include restrictions or exclusions of liability for certain acts or omissions of the arbitrator. In addition, where the parties have agreed that the arbitration shall be conducted in accordance with any particular set of rules, those rules may contain provisions relating to the immunity of the tribunal.

9 The role of the court during an arbitration

9.1 Will the court in your jurisdiction stay proceedings and refer parties to arbitration if there is an arbitration agreement?

Yes, but it will depart from this general rule in exceptional circumstances.

Where court proceedings are commenced without regard for a valid agreement requiring submission to arbitration, the other party may at any time after appearance, and before delivering any pleadings or taking any other steps in the proceedings, apply to the court for a stay of proceedings.

The court will make an order staying the court proceedings if it is satisfied that:

• there is no sufficient reason why the matter should not be referred to arbitration in accordance with the parties' agreement; and
• the applicant was, at the time the proceedings were commenced, and remains, ready, willing and able to do all things necessary to the proper conduct of the arbitration.

The courts have adopted the principle that where the parties have so agreed, they should be compelled to carry out their agreement to arbitrate. Accordingly, an application to stay court proceedings will be refused only in exceptional cases.

9.2 Does the court in your jurisdiction have any powers in relation to an arbitration seated in your jurisdiction and/or seated outside your jurisdiction? What are these powers? Under what conditions are these powers exercised?

The court has several powers in relation to the arbitral process. Section 12(6) of the Arbitration Act provides that the High Court shall have, for the purpose of and in relation to a reference, the same power of making orders as it has for the purpose of and in relation to an action or matter in the High Court in respect of the following:

• security for costs;
• discovery of documents and interrogatories;
• the giving of evidence by affidavit;
• examination on oath of any witness before an officer of the High Court or any other person, and the issue of a commission or request for the examination of a witness out of the jurisdiction;
• the preservation, interim custody or sale of any goods which are the subject matter of the reference;
• the securing of the amount in dispute in the reference;
• the detention, preservation or inspection of any property or thing which is the subject of the reference or as to which any question may arise therein, and authorisation for any of these purposes of any persons to enter upon or into any land or building in the possession of any party to the reference, or authorisation for the taking of any samples, the making of any observation or the conduct of any experiment which may be necessary or expedient for the purpose of obtaining full information or evidence; and
• interim injunctions or the appointment of a receiver;

Additionally, the court has the power to, and will in appropriate circumstances:

• appoint an arbitrator or umpire;
• set aside the appointment of an arbitrator or umpire;
• extend the time for making an award;
• remit a matter for reconsideration by the arbitrators or umpire;
• remove an arbitrator;
• grant leave to permit the enforcement of an award; and
• in relation to arbitrations seated in St Kitts & Nevis, set aside an award.

9.3 Can the parties exclude the court's powers by agreement?

The parties are free to agree as they will, subject only to established legal prohibitions and the dictates of public policy.

10 Costs

10.1 How will the tribunal approach the issue of costs?

The provisions relating to the award of costs are set out in Section 18 of the Arbitration Act and are as follows:

10.2 Are there any restrictions on what the parties can agree in terms of costs in an arbitration seated in your jurisdiction?

As indicated in Section 18(3) of the Arbitration Act, in relation to arbitration agreements that are entered into before the dispute arises, the parties are precluded from entering into any agreement for the payment of costs by a party or parties in any event – that is, regardless of the outcome of the claim. This restriction does not apply if the arbitration agreement is made after the dispute arose.

11 Funding

11.1 Is third-party funding permitted for arbitrations seated in your jurisdiction?

There are no restrictions on third-party funding at this time.

12 Award

12.1 What procedural and substantive requirements must be met by an award?

There are no specific provisions in the legislation regarding the form or content of the award. In general, the award must be in writing and signed by the tribunal. It is also expected that the award will be clear and capable of being enforced.

12.2 Must the award be produced within a certain timeframe?

No specific time limit is imposed by the Arbitration Act for making the award.

Section 13(1) of the act states that, subject to the provisions of Section 22(2) of this act and anything to the contrary in the arbitration agreement, an arbitrator or umpire shall have power to make an award at any time. Under Section 13(2) the timeframe, if any, for making an award – whether under the act or otherwise – may from time to time be extended by order of the High Court or a judge thereof, whether that timeframe has expired or not.

Although the legislation sets no particular timeframe, it anticipates that the arbitrator will act within a reasonable time to conduct the arbitration and to issue and award. Where this is not the case, the arbitrator can be removed by the court and will not be entitled to any remuneration for the services rendered. In this regard, Section 13(3) of the Arbitration Act specifically provides that: "The High Court may, on the application of any party to a reference, remove an arbitrator or umpire who fails to use all reasonable dispatch in entering on and proceeding with the reference and making an award, and an arbitrator or umpire who is removed by the High Court under this subsection shall not be entitled to receive any remuneration in respect of his services."

13 Enforcement of awards

13.1 Are awards enforced in your jurisdiction? Under what procedure?

According to Section 26 of the Arbitration Act, an award on an arbitration agreement may, by leave of the High Court or a judge thereof, be enforced in the same manner as a judgment or order to the same effect; and where leave is so given, judgment may be entered in terms of the award.

An application for leave to enforce an award – whether domestic or international – must be made in the High Court. The application must conform to the requirements of the Eastern Caribbean Supreme Court Civil Procedure Rules 2000.

14 Grounds for challenging an award

14.1 What are the grounds on which an award can be challenged, appealed or otherwise set aside in your jurisdiction?

By virtue of Section 23(2) of the Arbitration Act, the court may set an award aside where:

• there has been misconduct by the arbitrator or umpire; or
• the arbitration or award has been improperly procured.

14.2 Are there are any time limits and/or other requirements to bring a challenge?

The Arbitration Act does not specify any procedure to be followed or deadlines to be met where an award is being challenged.

However, awards are enforceable in the same manner as a judgment or order of the High Court. Accordingly, any challenge must conform to time and other procedural requirements that are applicable in the High Court. These are set out in the Eastern Caribbean Supreme Court Civil Procedure Rules 2000.

In addition, in the context of an ad hoc arbitration, the parties can themselves agree on specific procedures and deadlines. They may also agree to conduct their arbitration under other rules which include specific guidelines in these areas.

14.3 Are parties permitted to exclude any rights of challenge or appeal?

In arbitration proceedings, the parties are free to establish their own procedural and other rules, unless those rules are contrary to established law or public policy. Accordingly, they may agree to exclude, limit or expand the basis on which challenges may be brought. Their agreement is enforceable by way of an action for breach of contract.

The parties are free to agree as they will, subject only to established legal prohibitions and rules of public policy. As such, the parties may agree not to appeal an award in their agreement to arbitrate.

15 Confidentiality

15.1 Is arbitration seated in your jurisdiction confidential? Is a duty of confidentiality found in the arbitration legislation?

The Arbitration Act contains no specific provision for confidentiality in relation to arbitration proceedings. The parties may specifically establish confidentiality in their agreement or may agree to conduct their arbitration using institutional rules which provide for confidentiality. Arbitrators also have a duty at common law to maintain confidentiality in relation to the arbitral proceedings and any information disclosed to them during the arbitration.

15.2 Are there any exceptions to confidentiality?

Even where the parties have agreed that the proceedings should be confidential, it may still be necessary to disclose the contents of the arbitration award or the award for the purpose of any enforcement proceedings.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.