1 . What is the structure and organisation of local courts dealing with commercial claims? What are the main procedural rules governing commercial litigation?
Structure and organisation
The court system of the British Virgin Islands (BVI) falls within the ambit of the Eastern Caribbean Supreme Court (ECSC). The ECSC also exercises jurisdiction over other Caribbean member states.
Commercial claims will be heard by the following constituents of the ECSC:
- Commercial Division of the High Court (Commercial Court). This is a dedicated court that hears first instance commercial cases emanating from the BVI, and has exclusive remit over corporate insolvency matters.
- The Court of Appeal. Appeals are heard from the Commercial Court. The Court of Appeal is based in St Lucia but is itinerant, travelling between the various member states. It typically sits in the BVI three times per year, each lasting for a period of one week. If urgent, BVI appeals may be heard when the court is sitting elsewhere.
A final appeal can be made in certain cases to the Judicial Committee of the Privy Council.
The ECSC Civil Procedure Rules (Revised Edition 2023) (CPR) came into effect on 31st July 2023 and will apply to all proceedings commenced after that date. The CPR and practice directions apply to all commercial claims filed in the ECSC. Users will find that these are largely adapted from the English Civil Procedure Rules.
These include Antigua and Barbuda, the Commonwealth of Dominica, Grenada, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Anguilla and Montserrat.
The Judicial Committee of the Privy Council sits in the United Kingdom (UK) and is the court of final appeal for the UK overseas territories and Crown dependencies.
2 . What pre-action considerations apply?
There are no mandatory pre-action protocols as it stands but this may change in the near future. CPR Rule 8.16 foreshadows the possibility of such protocols being introduced, including a reference to mediation. Beyond that, parties can also agree to engage in Judicial Settlement Conferences as a
pre-action mechanism for promoting early disposition of the cases (as part of the new CPR Part 38A). The judge referred has power to assist parties to reach negotiated settlements of their dispute.
There is no BVI legislation governing third-party funding. However, the courts have recognised that:
- third-party funding is permissible in the insolvency context (where a funding agreement between BVI liquidators and a third-party funder was approved); and
- sharing court documents with a third-party funder is permissible for the funder to assess the appropriateness and proportionality of litigation expenses in proceedings.
We expect that the BVI courts will continue developing commercial solutions in the third-party funding space to facilitate access to justice.
In terms of contingency fees, lawyers are permitted to enter into agreements for contingency fees that are “fair and reasonable” under the Legal Profession Act 2020. No guidance is available as to what is fair and reasonable, and a common-sense approach will be recommended.
The court’s jurisdiction arises only upon compliant service of originating process.
- A defendant domiciled in the BVI can be served with process as of right. Service is deemed to have occurred by the mere filing of the document on the E-Litigation Portal.
- A defendant not domiciled or ordinarily resident in the BVI can be served with processes without the court’s permission if it satisfies CPR Part 7.2. This requires that service is effected via a prescribed method, the claimant files a signed certificate compliant with CPR Part 7.2 and, most importantly, that the case comes within at least one of the jurisdictional gateways provided for in CPR Part 7.3.
A defendant who wishes to dispute the BVI court’s jurisdiction (including on forum non conveniens grounds or due to an already ongoing arbitration) can apply for a declaration to that effect.
Crumpler v. Exential Investments Inc. BVIHC(COM) 2020/81.
Green Elite Ltd (in liquidation) v. Fang Ankong & Ors BVIHCMAP 2022/48.
Section 6(2) of the Legal Profession Act 2020.
3 . What are the main alternative dispute resolution (ADR) methods used to settle large commercial disputes?
Arbitration and mediation
Arbitration is steadily gaining traction as a form of ADR. The BVI Arbitration Act 2013 (Arbitration Act) and the launch of the BVI International Arbitration Centre (BVI IAC) in 2015 is testament to this.
Mediation is often considered. The BVI has a number of qualified mediators who can be instructed locally.
ADR within the legal system
If both parties do not wish to engage in ADR, a BVI court cannot compel them to do so. This is set to change in the near future given the new CPR Rule 8.16 which signals that a procedure for mandatory mediation could be introduced by way of practice direction. Beyond that, under CPR Rule 27.7, the court may adjourn a case management conference to enable settlement discussions or a form of ADR procedure to continue.
Likewise, although there are no formal sanctions for parties who refuse ADR, a party who does so unreasonably may be the subject of an adverse costs order.
Beyond mandatory ADR, the court now wields an express power to direct (with the consent of the parties) proceedings to be stayed and for parties to settle their dispute by ADR under CPR Rule 38A.5.
4 . How long, on average, do court proceedings take to reach trial?
Court proceedings generally take from six months to more than a year from initiating proceedings to reach trial. The typical sequence of procedural steps include:
- An action in the Commercial Court may commence by way of claim form (supported by a statement of claim), fixed-date claim form or originating application (both of which supported by an affidavit).
- The originating process is served on the defendant. Leave from the court is no longer required if the claimant satisfies the procedural requirements in CPR Part 7.2(1).
- Domiciled defendants have 14 days from the date of service of the statement of claim (or the originating application/fixed-date claim form and affidavit) to file an acknowledgement of service and 28 days from the date of service to file a defence, evidence-in-reply or jurisdiction challenge.
- Defendants served out of jurisdiction have 35 days from the date of service to file an acknowledgement of service (unless service is effected in member Caribbean states, in which case the period is 28 days) and 56 days from the date of service to file a defence, evidence-in-reply or jurisdiction challenge (42 days if service is effected in member Caribbean states).
- Any jurisdictional challenge must be determined before the matter proceeds. The defence or evidence-in-reply need not be filed until specified by the court (generally when the jurisdiction challenge is dismissed).
- Once the defence or evidence in reply is filed (together with any counterclaim), the claimant may elect to file a reply (including a defence to any counterclaim). At this point, there may be interlocutory procedures, including security for costs, directions for further pleadings, disclosure and requests for information.
- Following the exchange of pleadings and/or evidence in reply, the court may fix a CMC where directions will be given for disclosure (if not already done), witnesses, expert evidence and listing of the trial.
- The court may then fix a Pre-trial Review (PTR) where the court will give directions as to the trial timetable. If no PTR is listed, the trial timetable must be agreed between the parties (failing which, it will be decided by the court).
Factors that may cause delay
The largest contributing factor to any delay is the number of interlocutory procedures that need to be determined. Other factors include case complexity, parties’ cooperation and court’s availability.
CPR Part 8 – see CPR 8.1 and 8.5.
CPR Part 5.
CPR Part 7.
CPR 11.3 and CPR Part 27.
5 . What disclosure obligations apply? Are parties required to disclose unhelpful documents as well as those on which they rely?
CPR Part 28 sets out rules governing disclosure and inspection. Where an order for standard disclosure is made, a party must disclose all documents which are:
- in a party’s possession or control; and
- “directly relevant” to the matters in question in the proceedings.
These include documents which the party intends to rely on, those adverse to its case, and those that tend to support the other party’s case.
A party gives disclosure by producing a list identifying:
- documents that a party is disclosing;
- documents that are no longer in a party’s control (including information on what has happened to them and where they are); and
- documents that are to be withheld from disclosure or inspection (including the grounds upon which it is claimed such as privilege).
A party wishing to inspect any documents contained in the list is required to give written notice of its intention to inspect documents on the list. Do also note that a party who discloses a document in a foreign language may not rely upon that document unless it produces a certified English translation of the document.
Disclosure is administered by the parties, not the court. However, where a party is not satisfied with disclosure by another party pursuant to standard disclosure, an application for specific disclosure of a document or class of documents may be made.
CPR 28.2 and 28.4.
CPR Form 11.
 CPR 31.4.
6 . Can witnesses be required to attend trial and face cross-examination?
The general rule is that, in claims commenced by claim form or fixed-date claim form, a witness will be called to give oral evidence and can be cross-examined on that evidence. In cases proceeding by way of originating summons where an affidavit is typically to be used as evidence, the opposing party can apply to court for an order requiring the person to attend to be cross-examined.
If there is a concern that a witness may refuse or fail to attend trial, the court may issue a witness summons on its own motion or upon a party’s application.
A witness who fails to comply with such an order risks being held in contempt of the court (although it may be difficult to secure the attendence of witnesses outside the court’s jurisdiction without assistance rendered by a foreign court).
7 . What discretion do the courts have in making costs orders?
The courts have a wide discretion to decide which party should pay costs and the amount of costs to be paid.
Generally, it is the unsuccessful party who will be ordered to pay the costs of the successful party, although the court retains a discretion, and the conduct of the respective parties would be a relevant consideration.
Where costs are to be assessed, the receiving party will serve the paying party with a schedule setting out the costs claimed including lawyers’ fees, court fees, expenses, disbursements, etc. If unable to agree on quantum of the costs, the receiving party may apply to have costs assessed by the court.
The court may order costs to be summarily assessed, rather than via a detailed assessment.
There are restrictions on recoverability of costs of lawyers not admitted as BVI legal practitioners.
The court has a power to award costs against third parties but this is only exercised in exceptional cases.
In the Matter of Summer Fame Ltd (In Liquidation) BVIHC(COM) 2020/0055.
8 . What are the main types of interim remedies available?
CPR Part 17 comprehensively provides the framework for interim remedies. These are supplemented by common law and equitable principles derived from BVI and English case law.
A BVI court can summarily dismiss all or part of a claim prior to trial by way of:
- an application for summary judgment under CPR Part 15 if the court considers that the claimant has no real prospect of succeeding (or a defendant has no real prospect of defending);
- an application for strike out under CPR Part 26 if it discloses no reasonable ground for bringing a claim (or defence) or where the statement of case is an abuse of process; or
- the court’s inherent jurisdiction to manage cases in the interests of justice.
These applications may be brought at any stage of proceedings by any party. The application must be supported by evidence, and the respondent is entitled to file evidence in response. Applications are heard by a judge in chambers.
Security for costs
An application for security for costs should be made “where practicable” at a case management conference or PTR, and supported by affidavit evidence.
Security can be provided in a number of ways, including payments into court or a third-party bond or guarantee.
For the court to grant security for costs, it must be satisfied that it is just to make the order and that one of the grounds set out in CPR 24.3 is satisfied. The grounds include where the claimant is outside the jurisdiction, and where the claimant has taken steps to place its assets beyond the court’s jurisdiction.
Once security is ordered, the proceedings will be stayed until security is furnished, and if security is not furnished by the specified deadline, the claim will be struck out.
If a prospective claimant is concerned that a defendant will frustrate any potential judgment, a freezing injunction may be sought by the claimant on an urgent basis to safeguard its position pending determination of the claim.
Freezing orders restrain a respondent from disposing or dealing with its assets where an applicant can show:
- that it has a good arguable case on the merits of its underlying claim;
- that there is a real risk that, unless restrained, the respondent will take steps to dissipate its assets to avoid the enforcement of any judgment against it; and
- that it is just and convenient to grant the relief sought – orders may direct provision of information about the location of property or assets.
The court has discretion to grant freezing injunctions in support of foreign proceedings, where the respondent is within the in personam jurisdiction of the BVI courts. A standard form freezing order is due to be issued by way of practice direction from the court. The Privy Council has since confirmed that litigants can bring an application for a freezing injunction before the BVI courts without the need for substantive litigation within the BVI, thereby affirming a landmark 2010 judgment known as ‘Black Swan’.
A freezing injunction can be sought without notice if it appears to the court that there are good reasons for doing so under Rule 17.3(2). The applicant is obliged to make full and fair disclosure of all material facts and law relevant to the application.
Other forms of interim relief
Those which are most frequently sought include injunctive relief and orders for provision of information.
Prohibitory injunctions restrain a respondent from acting in a particular way where it is shown:
- that there is a serious question to be tried on the merits of its underlying claim;
- that an award of damages would not be an adequate remedy; and
- that, on the balance of convenience it is just and convenient to grant the relief.
Anti-suit injunctions restrain proceedings, including where parallel proceedings have been commenced in another jurisdiction, where it is just and convenient to do so depending on the circumstances of the case.
A prospective claimant requiring information belonging to a third-party in order to particularise its claim may seek the provision of information from the third-party pursuant to a Norwich Pharmacal application.
Rybolovleva v. Rybolovleva BVIHCV 2008/0403
These include proceedings which have been or are about to be commenced in a foreign jurisdiction; see section 24A of the Eastern Caribbean Supreme Court (Virgin Islands) Act.
 CPR 17.1(6).
Broad Idea International Ltd v. Convoy Collateral Ltd et al  UKPC 24. The Eastern Caribbean Supreme Court (Virgin Islands) Act was amended in 2020 to insert section 24A which expressly sets out the BVI court’s powers to grant such interim relief.
Addari v. Addari BVICVAP 2005/0002.
Emmerson International Corporation et al v. Viktor Vekselberg et al BVIHCMAP 2021/004.
 JSC BTA Bank v. Fidelity Corporate Services Limited and others  ECSC J0221-3.
9 . What approach do the local courts adopt with respect to arbitration? What arbitration law applies and is it based on the UNCITRAL Model Law?
Approach of local court to arbitration
The BVI is currently a fledgling but promising forum for the arbitration of commercial disputes.
There is judicial support from the BVI courts in favour of arbitration. BVI courts have affirmed the “public commitment of the Territory to arbitration as part of its strategic plan” and that “parties have the right to agree on how they wish to resolve their disputes”.
The BVI courts generally adopt a non-interventionist approach to arbitration and give credence to the arbitral tribunal’s competence to decide on its jurisdiction. They also provide the necessary support for arbitral proceedings – interim reliefs, enforcement of awards, and privacy of hearings.
The approach adopted by the English courts generally guides the approach in the BVI. However, in recent winding up disputes that were subject to the spectre of arbitration, there has been some divergence from the English approach:
- In England, the Court of Appeal in Salford Estates (No 2) v. Altomart Ltd (No 2) adopted a pro-arbitration position where recourse to arbitration was granted unless a petitioner for the appointment of liquidators could show “exceptional circumstances”. The court observed that, if a dispute as to the existence of a petition debt came within the scope of the arbitration clause, the court should, save in wholly exceptional circumstances, exercise its discretion so as to dismiss or stay the petition.
- However, in C-Mobile Services Limited v. Huawei Technologies Co. Limited, the Eastern Caribbean Court of Appeal held that a petitioner need not demonstrate exceptional circumstances. A BVI court needed only to decide the question as to whether a debt was bona fide disputed on substantial grounds even if the dispute was subject to an arbitration agreement. This approach was subsequently affirmed in Jinpeng Group Limited v. Peak Hotels and Resorts Limited and Sian Participation Corp. (in liquidation) v. Halimeda International Limited.
- Significantly, the BVI courts have also recently held that the automatic stay in favour of arbitration under section 18 of the Arbitration Act 2013 does not apply to an application for the appointment of liquidators. This again marks a concerted effort to retain the court’s jurisdiction in the context of winding up disputes.
Relevant arbitration law
The BVI Arbitration Act is based on the UNCITRAL Model Law, and the 2021 BVI IAC Rules are based on the 2010 UNCITRAL Arbitration Rules. Notably, the 2021 BVI IAC Rules address pertinent issues including emergency arbitrators, use of tribunal secretaries, early determination, joinder and consolidation. Likewise, the panel of arbitrators features practitioners with experience in both common law and civil law traditions.
The rules and procedure of BVI arbitration will therefore be familiar to users of international arbitration in other jurisdictions.
Hualon Corporation (M) Sdn Bhd (in receivership) v. Marty Limited Claim No. BVIHC(COM) 2014/0090. See also Retribution Limited v. L Capital KTD Limited BVIHC(COM) 2015/0078.
 3 WLR 491.
 Kenworth Industrial Limited v. Xin Gang Power Investments Limited BVIHC(COM) 2022/0053 & 2022/0065.
 UNCITRAL Model Law on International Commercial Arbitration as adopted by the UN Commission on 21st June, 1985 and as amended by the UN Commission on 7th July 2006, the full text of which is outlined in Schedule 1 of the Arbitration Act.
10 . Can arbitrators grant interim relief?
On what grounds can an arbitration award be appealed?
Arbitral tribunals can grant interim relief. Section 33(1) of the Arbitration Act empowers a tribunal to order a party to:
- maintain or restore the status quo pending determination of the dispute;
- take action that would prevent (or refrain from taking action that is likely to cause), current or imminent harm or prejudice to the arbitral process itself;
- preserve assets out of which a subsequent award may be satisfied; or
- preserve evidence relevant and material to the resolution of the dispute.
Before interim relief is granted, a tribunal must be satisfied that:
- if the measure is not ordered, the harm to the applicant substantially outweighs the harm that is likely to result to the other party if the measure is granted; and
- there is a reasonable possibility that the requesting party will succeed on the merits of the claim.
 Which incorporates Article 17 of the UNCITRAL Model Law.
 Section 34 of the Arbitration Act (which incorporated Article 17A of the UNCITRAL Model Law).
11 . On what grounds can an arbitration award be appealed?
Parties are at liberty to opt-in to a right of appeal to the BVI court on a question of law arising from the arbitration award. This is done by incorporating Schedule 2, paragraph 5 to 7 of the Arbitration Act in the parties’ arbitration agreement.
An appeal may be brought either:
- by the agreement of all the parties to the arbitral proceedings; or
- with the leave of the court.
Leave will be granted only if the court is satisfied that:
- the decision of the question of law will substantially affect the rights of one or more parties;
- the question is one which the tribunal was asked to decide; and
- on the basis of the factual findings in the award
- the decision of the arbitral tribunal was obviously wrong; or
- the question is one of general importance and the decision of the tribunal is at least open to serious doubt.
The courts must decide the question of law which is the subject of the appeal on the basis of the findings of fact in the award. Upon hearing an appeal, the court may make an order either confirming, varying or remitting the award (in whole or in part) to the tribunal for reconsideration. The court can also set aside the award if satisfied that it would be inappropriate to remit the matters to the tribunal for reconsideration.
There are currently no reported judgments concerning the appeal of an arbitration award in the BVI.
Assuming the parties have not opted for a right of appeal in Schedule 2, the proper avenue is to attempt to have the award set aside under section 79 of the Arbitration Act. This incorporates the grounds for setting aside under Article 34 of the UNCITRAL Model Law, including incapacity of the parties; lack of validity of the agreement; lack of proper notice of the arbitration to the respondent or inability to present their case; or where an issue not contemplated by the arbitration has been dealt with.
Section 89(d) of the Arbitration Act states that it is for parties to expressly opt-in to Schedule 2, paragraph 5, which provides for the right of appeal.
12 . What international conventions and agreements on enforcement of judgments or arbitral awards is your jurisdiction a party to?
The BVI is party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (New York Convention). The BVI’s accession to the New York Convention will facilitate the enforcement of foreign awards in the territory and fortifies the BVI’s position as a hub for cross-border disputes.
The BVI court has also affirmed the same pro-enforcement policy.
The convention is set out in Part X of the Arbitration Act and, under section 84 of the Arbitration Act, convention awards are enforceable in the BVI as they would be in any other convention country.
See, for example, PT Ventures SGPS SA v. Vidatel Ltd BVIHC (COM) 2015/0117 and BVIHC (COM) 2019/0067.
13 . What types of judgments in commercial matters are enforceable and what types are excluded?
Any award, whether subject to the New York Convention or otherwise, can prima facie be enforced.
The requirements for enforcing an arbitral award are less onerous than enforcing a foreign judgment because there is no need to show that the award is a final and conclusive award of a specific sum of money.
Awards containing the following reliefs are prima facie enforceable.
- awards with injunctions;
- declaratory awards; and
- awards granting provisional measures.
The parties may have agreed that the tribunal can make such orders. If there was no such agreement, the party against whom orders were made may have a defence to the enforcement application in the BVI (on the basis that an issue not contemplated by the arbitration has been dealt with).
Refusal to enforce judgment
There are no express exclusions from the categories of arbitral awards which may be enforced pursuant to the Arbitration Act, although defences to enforcement proceedings are available.
 CPR 43.1 and CPR 43.11.
See section 83 of the Arbitration Act.
14 . What is the process for registration of foreign judgments and arbitral awards?
Foreign judgments from a jurisdiction subject to the Reciprocal Enforcement of Judgments Act 1922 (Reciprocal Enforcement Act) can be registered in the BVI for enforcement as if it were a BVI judgment. The foreign judgment is registrable within 12 months of the date of judgment, unless the BVI court grants a longer period on the basis that it is just and convenient to do so.
A judgment creditor must apply to the court under CPR Part 72 and produce:
- an affidavit containing the required affirmations and statements about the judgment;
- a verified/certified copy of the foreign judgment; and
- a certified/authenticated translation into English if necessary.
The application can be made without notice to the judgment debtor. Once a foreign judgment is registered, it can be enforced like any domestic BVI judgment.
Judgments from jurisdictions not subject to the Reciprocal Enforcement Act cannot be registered. The judgment creditor must bring a claim in the BVI court on the judgment debt as a cause of action under common law. This involves commencing proceedings under CPR Part 8, and serving the judgment debtor under CPR Part 5.
Convention arbitral award
The process of recognition and enforcement of a New York Convention award is straightforward. The application should be commenced by way of a fixed date claim form supported by an affidavit which is compliant with CPR Part 43.12(2). The affidavit must specify the date and place of proceedings, state the interest amount and confirm that the claimant is entitled to enforce the award. Under sections 84 to 86 of the Arbitration Act, the enforcing party must produce:
- the original or a certified copy of the original award;
- the original or a certified copy of the original arbitration agreement; and
- if the award or arbitration agreement is not in English, a certified translation by a notary public.
Under section 85 of the Arbitration Act, the court does not have discretion to refuse enforcement and must issue an order as of right confirming that the award will be recognised as a judgment or order of the BVI court. No notice is required to be provided to the other party.
Non-New York Convention arbitral award
Under section 81 of the Arbitration Act, a non-New York Convention award may be enforced with the leave of court in the same manner and judgment as a judgment or order of the BVI court.
The burden is on the opposing party to challenge enforcement on grounds under section 83 of the Arbitration Act (under both New York Convention and non-New York Convention awards). BVI courts generally take a pro-arbitration approach to enforcement, and will not usually refuse enforcement unless one of the limited exceptions can be established.
The Reciprocal Enforcement Act currently applies to judgments given in the High Court of England and Wales, the Court of Northern Ireland, the Court of Session in Scotland, and the courts of the Bahamas, Barbados, Belize, Trinidad and Tobago, Guyana, St Lucia, Grenada, Jamaica, and New South Wales (Australia).
See Question 4 above.
15 . Once the judgment or award is registered, what are the available methods of execution?
Once an award or judgment is recognised, it is treated as a judgment of the BVI court and all local enforcement measures against assets located in the BVI are available to the applicant.
The BVI offers a wide range of enforcement mechanisms for its orders, including:
- charging orders (CPR Part 48);
- garnishee/attachment orders (CPR Part 50);
- judgment summons (CPR Part 52);
- orders for the seizure and sale of goods (CPR Part 46); and
- order for the possession and sale of land (CPR Part 53).
The court can also appoint a receiver under CPR Part 51.
In the context of a winding up sought due to an unsatisfied arbitral award, the BVI court has recently suggested that the correct approach is to issue a statutory demand (based on the procedure in the BVI Insolvency Act 2003) before issuing a liquidation application.
Charging orders may be a particularly effective and efficient means of enforcement over the shares of a BVI target company. An ex parte application is made for a provisional charging order, following which the court will consider whether to make the provisional order final at a hearing on notice to the respondent.
Rangecroft Limited v. Lenox International Holdings Ltd BVIHC (Com) 37 of 2020.
16 . What interim measures are available pending enforcement?
The BVI court has broad jurisdiction under CPR Part 17 to grant interim measures, including freezing orders and injunctions as discussed above. The court’s specific power to grant interim measures in support of the arbitration proceedings is set out in section 43 of the Arbitration Act, and extends to existing or intended arbitration proceedings whether commenced inside or outside the BVI.