Since opening its doors for business 15 years ago, the BVI Commercial Court has played a central part in the continued growth and development of the BVI as an international financial centre.
Following the success of the 1984 International Business Companies Act, the BVI’s financial services industry continued a trajectory of rapid development. As part and parcel of that development, commercial disputes developed for those who had chosen to incorporate here or had utilised one of the BVI’s financial structures.
Before the establishment of the specialist Commercial Court, such disputes were determined by High Court Judges. In addition to adjudicating over commercial disputes, these judges were responsible for serious criminal cases as well as matrimonial and property disputes. Despite the increasingly demanding workload, the judges worked with efficiency and diligence. These principals would come to lay the foundations of the Commercial Court.
As it became more and more obvious that the BVI required a dedicated court to deal with commercial disputes, active debate ensued as to the form that it would take. The option that found favor and which proved to be successful was to create the Commercial Court as a specialist court within the Eastern Caribbean Supreme Court. This meant that the Commercial Court, though based in the BVI, was available for use to any of the other eight jurisdictions that comprise the ECSC.
An important advantage of the Commercial Court forming a part of the ECSC is that, from the outset, it had access to a Court of Appeal comprising of established justices. And while the ECSC Court of Appeal sits in the BVI three times a year, it is possible to seek a listing at any time of year in urgent cases.
The final Court in the system is the Privy Council, whose judges comprise the Supreme Court Justices of the United Kingdom. For the most part, any BVI final order enjoys a right of appeal to the Privy Council, as of right, without the need for substantive permission to appeal (although procedural leave is still required). This is an extremely strong selling point for the jurisdiction, and the BVI sends a significant number of commercial appeals to the Privy Council every year.
ESTABLISHING A STRONG LEGAL LEGACY
Speaking at the start of the legal year 2009/10, the then Chief Justice of the Commercial Court remarked: “This Division is intended to specialise in and bring a new and dynamic dimension to cross-border litigation … The aim of this division of the Court is to facilitate the speedy and efficient resolution of commercial cases in our system, in a manner that permits the Court to maintain a competitive international profile.” Those objectives have certainly been realised. Without doubt, much of the success of the BVI Commercial Court is due to its first and founding judge, Edward Bannister KC. He was a leading London commercial/chancery silk, who had been instructed in a number of BVI matters. When he accepted the position of the Court’s first judge, Justice Bannister undertook the significant task of providing the court with a solid and dedicated procedural code, namely dedicated provisions within the general ECSC Civil Procedure Rules, together with relevant practice directions. It is a testament to the quality of those provisions that over the years, they have required little amendment.
In the early days of the Commercial Court, whilst waiting for bespoke court premises to be made available, judges occupied a rented building immediately adjacent to “Dolphin Discovery” – a now closed tourist attraction outside Road Town.
Tourists from around the world, many of whom had moments earlier left their cruise ship to interact with wonderfully intelligent aquatic mammals were often treated to an impromptu half-time show of seeing fully robed counsel, loitering immediately in their vicinity frantically negotiating or, in some cases, preparing. Such joys ceased when the Court moved to its purpose converted dedicated premises, for use as an International Commercial Court.
Despite the Covid pandemic, flooding and damage from Hurricane Irma (one of the most powerful Atlantic hurricanes on record), that building remains the court’s home today.
A COMMERCIAL COURT FOR THE NEEDS OF TODAY
Whilst the Court’s jurisdiction is carefully defined, and may conveniently be summarised as matters of a commercial and chancery nature, and its value limit clear (it generally is receptive to cases worth in excess of 500,000 USD) the reality is that the width and variety of disputes that it determines is extremely broad.
From shareholder disputes involving warring family members, to disputes arising from aviation incidents, to the most cutting-edge issues of crypto disputes, and all in between. There is little risk of overstatement to suggest that the BVI Commercial Court has seen it all during its relatively short existence.
Whilst it is home to many disputes involving BVI based insolvency practitioners, and also some commercial disputes of a domestic nature, its global reach is perhaps the most notable attribute of the Commercial Court.
A key selling point of the Court is its expertise and experience with legal, cultural and jurisdictional issues that arise in global disputes. In particular, the Court has built a wealth of experience in relation to disputes originating in those countries with which the BVI financial services industry does most business. For example. in respect of shareholder disputes originating from Asia, not only is the Court very familiar with cultural norms from the region, but it is also flexible in terms of its sitting arrangements. The Court is amenable, in particular in relation to trial matters, to commence sitting earlier in the BVI day, conscious of the 12- hour time difference with Asia, especially where there is to be (remote) witness testimony. The Commercial Court is also adept in receiving evidence via translators and with hearing expert testimony in relation to matters of international law.
Since its creation, the BVI Commercial Court has enjoyed a symbiotic relationship with the legislative and policy developments in the BVI over the 40 years since the International Business Companies Act was introduced. Going forward, it will continue to be a critical attraction to international businesses setting up in the BVI.