Dear Disaster Recovery Coordinating Committee,
I am writing, in my personal capacity, in response to the solicitation of comments in relation to the Recovery and Development Plan for the Virgin Islands.
While there are numerous aspects of the plan on which I could offer comments and constructive suggestions, I have restricted my submission to the territory’s Commercial Court, which is the Commercial Division of the Eastern Caribbean Supreme Court in the territory of the Virgin Islands, and the legislation and matters relevant to it.
The Commercial Court is referred to in the plan primarily in relation to the restoration of its physical premises (see Section 4.3, “Business and Economy”).
The matters in this submission go primarily to “Development,” as opposed to “Recovery.” However, it is recommended that work begin to consider the recommendations in this submission as part of the immediate work to be commenced under the plan as the review which is recommended can begin and proceed in tandem with recovery.
It is important to note that the review which is recommended, and the implementation of most if not all the possibilities outlined below, will have minimal cost. The matters that this submission recommends be considered in the review include revenue generators.
Recommendation and rationale
My recommendation is that the Recovery and Development Plan should provide that there will be commenced immediately a comprehensive review of the Commercial Court, and certain relevant legislation, which has not occurred since the Commercial Court’s founding. The review should provide for the involvement of all stakeholders in a transparent process.
The plan is the ideal opportunity to reflect, re-examine, implement and grow.
The review should be undertaken by a small informed task force appointed for that purpose; should obtain input from all relevant stakeholders in a transparent manner; and should make specific actionable recommendations to enhance the Commercial Court, its financial footing, relevant legislation, and the court’s competitive position globally.
The objective of the review should be to assure the position of the Commercial Court as a leading — if not the leading — commercial court in the world, and the VI as a leading forum for dispute resolution in the world.
As part of the review, we should look carefully at a range of possible innovations and enhancements for the Commercial Court, and the laws of the territory, and deal with concerns about litigating in the VI in at least the following 13 principle areas, each of which is discussed below:
- expanding the jurisdiction of the Commercial Court;
- procedural innovations for the Commercial Court;
- Adopting international standards and practices for foreign lawyer involvement in VI litigation;
- financial self-sufficiency, or even profitability, for the court;
- enhanced service to parties and legal practitioners;
- third party financing (funding) in the VI;
- enforcement of court orders;
- civil asset forfeiture legislation;
- expanding recognition of foreign insolvency office holders;
- cooperation and coordination with other courts;
- implementation of the lawyer disciplinary process provided in the Legal Profession Act;
- commercial court judges; and
- advancement of Virgin Islanders in commercial matters.
Background
The Commercial Court, established in 2009 with the strong and continuing support (including financial support) of the VI government, has been successful beyond expectations. It has become an important contributor to VI’s financial services industry and a recognised commercial court globally (among approximately 10 leading commercial courts).
Commercial cases were being heard in VI before the Commercial Court was established. Into the 21st Century it was thought appropriate in the VI to examine whether a specialised commercial court should be established.
The Commercial Court was established after considerable study, with international input, and considerable debate in the VI, including as to whether it should be a freestanding VI court or part of the Eastern Caribbean Supreme Court.
Not only did the Commercial Court’s caseload grow in volume and significance from 2009, but the Commercial Court, under its first judge, Justice Edward Bannister, developed a strong reputation globally.
A modern Commercial Court facility was opened in Road Town. Over the years, the VI’s commercial law became increasingly known globally, with significant innovations, and the VI’s growing body of legal practitioners developed important offshore commercial practices, assisting business people from all parts of the world: Asia, Russia, the Middle East, Latin America and Africa, as well as North America. The Commercial Court hears advocates from firms with offices in the VI and leading barristers from London.
The Commercial Court’s workload has been based on the existence of more than 400,000 active companies (a number that has been decreasing from just under half a million) that are incorporated in the VI.
The business people who incorporated companies in the VI did not do so for the reasons we have heard so often in the past few years. An important underlying reason that many incorporated here — and continue to incorporate here — is that they do not have at home what we offer them here.
The VI has offered them a stable, reliable society. We have offered them the rule of law. And we have offered them an honest, independent and impartial justice system and judiciary to assure them that their rights will be protected and their disputes resolved on their merits.
An important part of those attributes is that appeals from the Commercial Court ultimately go to the highly regarded Privy Council in London, after the first level of appeal to the Eastern Caribbean Court of Appeal, which itself has developed greater commercial law expertise.
The VI has an unparalleled combination of attributes, including its rule of law, reputation, political stability, appeal route to the Privy Council, strong legal profession, large company base, international reach, and the Commercial Court’s established reputation.
Even greater possibilities
Commercial courts are in a competitive business, unlike other courts.
Many leading jurists in the United Kingdom, Hong Kong, Singapore and elsewhere have articulated the competitive situation facing commercial courts. Two recent observations are as follows.
United Kingdom Lord Chief Justice Lord Burnett of Maldon noted the following on Jan. 12: “Competition between justice systems is increasingly common, not least where commercial and business disputes are concerned. Choice of law and choice of venue make such disputes truly international. Increasingly choice of venue involves taking account of the courts, the judiciary and the legal profession of a jurisdiction before a choice is made.
Barely a month goes by without a report of another jurisdiction establishing or considering whether to establish an English-speaking commercial court. And the question of venue becomes ever more competitive. The English and Welsh courts may have an historic advantage. Such advantages can, unless care is taken, fade away when faced with new competition.
Increased competition can also — and, perhaps, should also — act as a spur to innovation and improvement. We have a long tradition of both innovation and improvement in our courts.
Since its creation in the late 19th Century, our Commercial Court has been a market leader. Its rules and procedures are generally recognised as a gold standard. But they are constantly under review to make changes that secure improvements.”
Sir Geoffrey Vos, chancellor of the UK High Court, also noted on Jan. 12, “Our UK jurisdictions have for some years faced increasing competition from other jurisdictions in Europe and beyond. In the last year, business or commercial courts that operate in the English language have been started or are about to be started in Amsterdam, Brussels, Paris and Frankfurt. They would all very much like to attract the international work that we do in the [Business and Property Courts] to use these new courts. … The judiciary is also not standing still in terms of the competition I have spoken about.”
To be continued.
Mr. Leon served as a justice of the territory’s Commercial Court for a three-year period that concluded last month.