Wednesday, March 10, 2010Deepening Our Commercial Appeal

Susanna Hennighan-PotterThe Supreme Court Of The Eastern Caribbean: Commercial Division

Justice Edward Bannister, QC began his appointment as the BVI’s first Commercial Court Judge in unusual surroundings. While workers completed the new Commercial Court building in central Road Town, Justice Bannister and his staff moved into the Reef House at Prospect Reef. Surrounded by dolphins, tourists, macaws and stunning ocean views, the Commercial Division of the Eastern Caribbean Supreme Court opened its doors last April.

Within the make-shift courtroom serious legal matters are being argued and decided. Over the first three months of the Court’s life, Justice Bannister heard Bernard Madoff-related disputes and several insolvency matters, and a July ruling involving the Fairfield Sentry funds was reported in the New York Times. There have also been business disputes involving oil and gas concerns in Indonesia; division of family assets in Russia; and an insolvency matter dealing with assets in Brazil. “The geographic extent is very wide indeed,” the judge said.

The global nature of the cases is an indication of the calibre of legal matters which take place in the BVI. “This is a phenomenal jurisdiction,” Justice Bannister said. “The Global Financial Index puts BVI at number 27, one ahead of Bermuda. What goes on here is already impressive stuff, and I see no reason why it should not become even more impressive.”

Justice Bannister, whose stern demeanour is softened by a dry sense of humour, says that while the addition of a Commercial Court will not necessarily drive business to the territory—no one plans to have a commercial dispute—he sees the new Court as an important addition to the British Virgin Islands as a jurisdiction. “Commercial cases have always been here. But it is an important presentation point to have something called a Commercial Court,” he said. “It says to people that they will not have to queue up and hope that they will be heard soon.”

The oldest and largest Commercial Court in the world is in London, where, Justice Bannister said, the standard is “astonishing”. “In London judges don’t have to have things explained to them, and certainly don’t have to have things explained to them twice,” the judge said. Other commercial courts of note are found in Bermuda, Sydney, Toronto and Hong Kong.

The Commercial Court situated in the BVI is part of the regional Eastern Caribbean Supreme Court, and it hears commercial cases from nine Eastern Caribbean countries and territories. In order to be heard, claims must have a value of more than US$500,000 and concern commercial, insolvency, trust, business arrangements, dissolution or similar matters. While most of the cases heard by the Court stem in some way from the BVI’s financial services industry, local or regional business disputes may also be heard.

The Commercial Court is an institution long in the making. In the early 2000s the BVI government commissioned a study to examine the question of whether a commercial court should be established in the Virgin Islands and, if so, what type of administrative relationship it should have with the regional court. The government eventually accepted the recommendation that a commercial court should be established as part of the regional court and in 2008 construction of the commercial court began in central Road Town. Recruitment of a top-flight jurist to serve as the court’s first judge took place and in May 2009 Hon. Chief Justice Hugh Rawlins presided over a special sitting of the Court of Appeal to open the Commercial Division of the Eastern Caribbean Supreme Court. Local officials, leading lawyers and regional judges all heralded the event as an important milestone for the BVI, its financial services industry, and for the regional court. The expected opening of the new court building in the fall of 2009 will bring a sense of completion to this ambitious project. But in other ways, the real work is just beginning.

For Justice Bannister, the opportunity to lay the foundation for a new commercial court in a jurisdiction such as the BVI was one which he would not pass up. “It’s an amazing opportunity,” he said. “Besides Chief Justice of the Dubai International Finance Centre Sir Anthony Evans, I don’t know of anyone else who has had an opportunity to come and start up a new court.”

As Justice Bannister expected, the job has proven demanding. The Court’s calendar has been full, and when he is not hearing arguments, Justice Bannister is writing decisions or directing the administration of the court. Most importantly, however, is the unspoken responsibility of establishing a good reputation for the new court, and Justice Bannister believes that the best way to achieve this goal is to simply get down to business.

“I want the Court to attract as much new business as possible and to be as user-friendly as possible. Apart from being courteous, this means hearing cases as quickly as possible and getting decisions out as speedily as I can. Parties have normally invested a huge amount of money and they want to know what the answer is. My judgements tend to be short, but I aim to get them out in a matter of days, not weeks. I regard speed as very important,” the judge said.

Justice Bannister says that he hopes the establishment of the Court will lead to the further development of the local bar. “One of the things I want to see is the growth, in the local sense, of a flourishing and available local commercial bar. There are people practising here of very high calibre, and I would like to see the local bar being so strengthened that people would not feel they have to bring in lawyers from London or elsewhere,” Justice Bannister said, referring to the practice of lawyers from top London law firms coming to the BVI to appear in a single matter.

“A dedicated Court and a local bar—that seems to me to be an asset to the BVI as a financial services centre,” the judge said.

Justice Bannister came to the BVI following 35 years as a commercial barrister, many of them as a senior member of Chambers at 3 Stone Buildings in London. A Queen’s Counsel since 1991, Justice Bannister specialised in company, insolvency and commercial litigation and appeared in Courts all over the Commonwealth. Justice Bannister says while on the face of it commercial law might appear ‘dusty’, it is interesting and intellectually stimulating.

“It’s rigorous,” he said. “You have to be very, very precise about what you are thinking and saying ... [In commercial law] you’re always finding areas of commerce and business which you didn’t know existed. I think it’s constantly surprising and interesting. It’s almost never dull.”

Oyster Publications Inc, PO box 3369, Road Town Tortola, British Virgin Islands, VG1110