Enforcing arbitration awards in British Virgin Islands

Convention awards. A convention award is enforceable in the BVI by either:

1. 1. instituting an action in court; or
   2. applying to seek leave of the court.

Non-convention awards. Non-convention awards can only be enforced by seeking leave of the court.

Leave to enforce arbitral awards. The requirements and procedures applicable to both a convention award and a non-convention award are the same. An application for the recognition and enforcement of a foreign arbitral award is made via a fixed date claim form, supported by affidavit evidence. The evidence must, among other things:

1. 1. Exhibit the original or a certified copy of the award (and, if relevant, a certified English translation); and
   2. Exhibit the original or certified copy of the arbitration agreement (where applicable).

The fixed date claim form must be served on the award debtor. If the award debtor is located outside the jurisdiction, the award creditor must serve out of the jurisdiction.

If leave is granted, the award has the same effect as a BVI court judgment or order and can be enforced using the remedies provided for under the Eastern Caribbean Supreme Court Civil Procedure Rules, which apply in the BVI. The order must be served on the award debtor. The award debtor has the right to apply to set aside the decision.

Refusal to enforce a convention award. The enforcement of a convention award may only be refused if the person against whom enforcement is sought proves one of the convention defences. The defences include:

1. 1. The arbitration agreement was invalid under the applicable law, or if there was no indication of the applicable law, under the law of the country where the award was made;
   2. The party was not given proper notice of the appointment of the arbitrator, or of proceedings, or was otherwise unable to present their case; and
   3. The award has not yet become binding on the parties or has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made.

The party against whom enforcement action is taken has the burden of proof to demonstrate that one of the applicable circumstances applies.

Refusal to enforce a non-convention award. The grounds for refusal of enforcement of a non-convention award are the same as for a convention award. However, there is the additional ground where the court has a wider discretion to refuse enforcement on its own volition if it considers it just to do so.

Once the arbitration award becomes a BVI judgment, it can be enforced by:

1. 1. a charging order;
   2. garnishee order;
   3. judgment summons;
   4. an order for the seizure and sale of goods; and
   5. an order for the appointment of a receiver.

From a practical standpoint, the enforcement of any arbitration award in the BVI is only effective if the judgment debtor has assets in the BVI against which the arbitration award can be enforced. This will usually be in the form of shares in a BVI company. The most common way to enforce is to seek a charging order over the shares in the relevant company owned by the judgment debtor.

Procedurally, this is done by joining the BVI company to the proceedings and applying for a provisional charging order (PCO). The PCO can then be made final. The application does not need to be served on the judgment debtor but the order, once granted, needs to be served. It should be noted that the judgment debtor can oppose the PCO being made final. If it is made final, the judgment creditor can apply for the appointment of a receiver and an order for sale.

Notwithstanding the above-mentioned, the judgment creditor can instead apply to appoint a liquidator over the judgment debtor (where the latter is a BVI company) to wind up the judgment debtor on the basis that the arbitration award is unpaid. The liquidator can then apply the proceeds of the liquidation to the satisfaction of the judgment debtor’s debts, including the arbitration award. It is normal to serve a statutory demand on the judgment debtor company first in such a situation (although this is not strictly required under the laws of the BVI).