Barbados

The High Court, a division of the Supreme Court of Judicature established under the Supreme Court of Judicature Act, Chapter 117A of the Laws of Barbados (SCJA), is the primary forum for commercial litigation in Barbados. The High Court sits under the appellate supervision of the Court of Appeal, with final recourse to the Caribbean Court of Justice (CCJ).

Commercial matters are heard by a single judge in the Civil Division; although there is no dedicated commercial court, specialised case management and judicial assignment promote efficiency.

The Magistrate’s Court established under the Magistrate’s Court Act, Chapter 116A of the Laws of Barbados (MCA) only has the jurisdiction to determine lower value claims, not exceeding BBD 10,000.00.

Commercial litigation in Barbados is governed by the Supreme Court (Civil Procedure) Rules, 2008 (CPR). The CPR was made pursuant to section 82 of the SCJA. Large commercial actions are commenced by Claim Form, and supported by a Statement of Claim, Affidavit in Support or other document in accordance with the CPR. The CPR provides a comprehensive procedural code addressing:

• the commencement of a claim (Part 8);
• service (Part 5);
• case management of the proceedings (Part 26);
• interim relief (Part 17);
• disclosure (Part 28);
• the appeal process (Part 62); and
• costs (Part 65), inter alia.

Ultimately, the parties are guided by the overriding objective (rule 1.1) to ensure that cases are dealt with justly, expeditiously, and proportionately.

Pre-action protocol is established by the Pre-action Protocols Practice Direction and the overriding objective in rule 1.1 of the CPR. The pre-action protocols require a claimant to issue a pre-action protocol letter before commencing proceedings. That letter must, inter alia, outline the nature of the claim, the reliefs being sought, and provide the defendant with copies of all essential documents necessary to prove the claim. The defendant should acknowledge the letter within seven days of receiving it and state when they will give a full written response either accepting or denying the claim, usually within 14 days of the acknowledgment. Failure to engage in pre-action protocols may affect costs awards.

Arbitration is the primary method for resolving large commercial disputes. Domestic arbitration is governed by the Arbitration Act, Chapter 110 of the Laws of Barbados (“Arbitration Act”), while international arbitration falls under the International Commercial Arbitration Act, Chapter 110B of the Laws of Barbados (ICAA) which adopts the UNCITRAL Model Law on International Commercial Arbitration. The Arbitration and Mediation Court of the Caribbean (AMCC), based in Barbados, provides institutional arbitration services based on international standards. Mediation is encouraged both by contract and judicial initiative under the Supreme Court of Barbados Practice Direction No. 1 of 2019, empowering judges to refer suitable cases.

The duration of civil and commercial proceedings in Barbados depends on the complexity of the matter, the number of interlocutory applications, and the availability of judicial resources. Delays persist due to the current backlog of cases and limited judicial capacity and resources. Consequently, while there is no typical time frame, commercial cases may take between 36 months and 60 months from the date of filing to trial.

Disclosure in Barbados is principally governed by Part 28 of the CPR. There is a duty of standard disclosure which requires each party to disclose all documents, which are or ought to be in the respective party’s possession, which are directly relevant to the issues in dispute, including those adverse to its case. Compliance is effected through filing and serving a verified list of documents, with inspection available upon request. The court may also order specific disclosure under rule 28.6 of the CPR. Non-compliance with the duty of disclosure attracts sanctions including striking out and costs.

Witnesses in Barbados may be compelled to attend trial and give evidence through a witness summons issued under rule 33.2 of the CPR, either on a party’s request or by the court’s own motion. Failure to comply may result in contempt proceedings.

The entitlement to costs in commercial litigation is governed by Part 64 of the CPR. The general rule is that the court will order the unsuccessful party to pay the costs of the successful party. The court may also make no order as to costs or, in exceptional cases, order the successful party to pay all or part of the costs of the unsuccessful party. In the exercise of its discretion under rule 64.6(3) of the CPR, the court may order a person to pay a specified portion of another party’s costs, costs from or up to a certain date only, or costs relating only to a certain distinct part of proceedings. In determining whether any party should be liable to pay costs, the court must have regard to all the relevant circumstances.

The courts in Barbados exercise broad equitable and statutory powers to grant interim remedies aimed at preserving assets, maintaining the status quo, and preventing injustice before trial. These powers are derived from the SCJA and the procedures and rules are contained in the CPR. The main types of interim remedies are:

• interim injunctions, which can be prohibitory or mandatory in nature;
• an order to deliver up goods;
• an order restraining a party from removing from the jurisdiction assets located there or from dealing with any assets whether located within the jurisdiction or not, commonly known as a “freezing order”;
• an order requiring a party to admit another party to premises for the purposes of locating and preserving evidence, referred to as a “search order”;
• security for costs; and
• an order for interim payments.

Barbados has a strong pro-arbitration framework grounded in modern legislation aligned with international best practices. The key enactments are the Arbitration Act, the ICAA (which is substantially modelled on the UNCITRAL Model Law on International Commercial Arbitration) and the Arbitration (Foreign Arbitral Awards) Act, Chapter 110A of the Laws of Barbados (“Foreign Arbitral Awards Act”), which implements the New York Convention on the recognition of Foreign Arbitral Awards.

Under section 6 of the Arbitration Act, the court will generally grant a stay of proceedings brought in breach of an arbitration agreement, unless the arbitration clause is determined to be null, void, or inoperative. This creates a strong presumption in favour of referring the dispute to arbitration.

Barbados courts adopt a restrained and supportive approach, assisting principally with the appointment of arbitrators, interim remedies, and the enforcement of arbitral awards.

Under the Arbitration Act, interim relief remains within the exclusive jurisdiction of the court. Pursuant to section 14(5) of the Arbitration Act, the court retains its jurisdiction to grant interim relief in domestic arbitrations while section 17 of the Arbitration Act empowers an arbitrator to make an interim award.

An arbitral tribunal may grant interim relief under the ICAA. Section 20 of the ICAA empowers an arbitral tribunal to order interim measures to maintain or restore the status quo, prevent prejudicial action, preserve assets out of which a subsequent award may be satisfied or preserve evidence that may be relevant and material to the resolution of the dispute. The ICAA also empowers an arbitral tribunal to issue preliminary orders where the urgency requires action before hearing the opposing party.

The ICAA and the Arbitration Act strictly limit challenges to arbitral awards, reflecting the international principle of arbitral finality. Under section 47 of the ICAA, an award may be set aside by the High Court only on narrowly defined grounds. These include incapacity of a party, invalidity of the arbitration agreement, lack of notice or inability to present a case, excess of jurisdiction, procedural irregularity, or conflict with public policy.

Under section 26 of the Arbitration Act, the court can only intervene where the arbitrator has misconducted himself or the arbitration, the award has been improperly procured, or there is an error of law on the face of the record. There is no general right of appeal on the merits unless expressly stipulated in the arbitration agreement, reinforcing finality and judicial non-intervention.

Barbados is a signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention, 1958), which is incorporated into domestic law through the Foreign Arbitral Awards Act.

In Barbados, final and conclusive monetary judgments rendered by competent courts, whether domestic or foreign, are enforceable, provided they meet the established legal criteria.

The main enforceable categories include:

• Domestic judgments of the High Court or Court of Appeal are enforced under Parts 43 to 53 of the CPR.
• Registered foreign money judgments from jurisdictions with reciprocal arrangements are enforceable under the Foreign and Commonwealth Judgments (Reciprocal Enforcement) Act, Chapter 201 of the Laws of Barbados (“Foreign Judgments Act”) and Part 72 of the CPR.
• Foreign judgments from non-reciprocating states, enforceable at common law through a fresh claim for the judgment debt, provided the judgment is final, conclusive, for a fixed monetary sum, not penal or revenue in nature, and not contrary to Barbadian public policy.
• Arbitral awards, whether domestic, international, or foreign are enforceable under the Arbitration Act, ICAA, or the Foreign Arbitral Awards Act.

Excluded judgments include:

• Interlocutory or non-final orders that do not determine liability or quantum.
• Non-monetary judgments, such as injunctions or declarations, which cannot be directly enforced and may require recognition proceedings in equity.
• Judgments relating to taxes, fines, or penalties, as these are considered enforcement of foreign revenue or penal laws and are not recognised under Barbadian law.

Accordingly, Barbados enforces commercial judgments that are final, conclusive, and monetary in nature, while excluding those lacking finality, involving public policy concerns, or constituting penal or fiscal obligations.

A judgment obtained in the United Kingdom is enforceable by the Courts of Barbados if that judgment is registered in Barbados under the Foreign Judgments Act. 

A judgment creditor may, within 12 months of the date of judgment, apply to the High Court of Barbados to have a judgment registered and the High Court, if it deems it just and convenient to have the judgment enforced in Barbados, order that the judgment be registered. 

The Foreign Judgments Act and Part 72 of the CPR provide that the application for registration: 

• must be made by the judgment creditor;
• must be made within 12 months of the date of the judgment, or such longer period as the court may allow; 
• may be made without notice unless otherwise ordered by the court; and 
• must be supported by an affidavit annexing or exhibiting the judgment, the addresses of the judgment creditor and debtor, detailing the prescribed information, including the amount of interest due and the amount in the currency of Barbados of any sum payable under a judgment expressed in currency other than the currency of Barbados calculated at the rate of exchange prevailing at the date of judgment. 

If the application is successful an order giving leave to register the judgment will be drawn up and an entry in the Register of Judgments maintained by the Registrar of the Supreme Court. The Order need not be served on the judgment debtor. The Order must state the period within which an application may be made to set aside the registration and must contain notification that execution on the judgment will not issue until after the expiration of that period. 

Execution will not be issued until the period for making an application to set aside the registration of judgment has expired or the application to set aside the registration of the judgment has been determined by the High Court. 

Notice of the registration of the judgment must be served personally on the judgment debtor, providing the particulars of the registered judgment, the name and address of the judgment creditor or their attorney-at-law, and advising the debtor of their right to apply to the High Court to set the registration aside and the deadline for doing so. 

The High Court may order the judgment creditor to give security for the costs of the application for registration and of any proceedings which may be brought to set aside the registration. 

Where the judgment creditor is resident outside of Barbados, the High Court is more likely to exercise its discretion in favour of requiring the judgment creditor to provide security for costs pursuant to Part 24 of the CPR. 

The judgment debtor may apply to set aside the registration of a judgment within the time prescribed by statute or the court. The court may extend the period, either as originally fixed or as subsequently extended, within which an application to have the registration set aside may be made. 

Similarly, any party wishing to execute on a judgment registered must produce an affidavit of service of the notice of registration of judgment and any order of the court in relation to the judgment.

Foreign judgments outside of the scope of the Foreign Judgments Act

Where a foreign judgment originates from a jurisdiction not designated under the Foreign Judgments Act, it cannot be registered under that statute. However, it may still be enforceable at common law in Barbados. At common law, a final and conclusive judgment in personam for a definite sum of money, rendered by a court of competent jurisdiction, may be enforced by bringing a fresh action on the judgment debt. The Barbados court will not re-examine the merits of the original case, save where defences such as fraud, want of jurisdiction, breach of natural justice, or public policy are raised.

To be enforceable, the judgment must satisfy several key conditions:

• it must not contravene Barbados public policy;
• it must not have been procured by fraud, duress, or in breach of natural justice;
• it must have been issued by a court of competent jurisdiction;
• it must remain unsatisfied;
• it must be final and conclusive between the parties;
• it must be for a fixed monetary sum, not being a tax, fine, or penalty; and
• it must not offend public international law or any international convention incorporated into Barbadian law.

Accordingly, even where reciprocal enforcement is unavailable under the statute, the Barbados High Court may recognise and enforce a foreign money judgment under its common-law jurisdiction, provided the judgment meets these well-established substantive and procedural requirements.

Arbitral awards

Enforcement is governed by the Foreign Arbitral Awards Act, which implements the New York Convention. Under section 4(2) of the Foreign Arbitral Awards Act, the party seeking enforcement must apply to the High Court and produce:

• the duly authenticated original award or a certified copy;
• the original arbitration agreement or a certified copy; and
• a certified English translation if the documents are in another language.

If the court is satisfied that the award qualifies as a “convention award” and that none of the limited refusal grounds under section 7 of the Foreign Arbitral Awards Act apply — such as invalidity of the agreement, lack of notice, excess of jurisdiction, or conflict with public policy — it will grant enforcement. The award may be enforced either by action or in the same manner as an award under section 29 of the Arbitration Act, which provides that an award may, by leave of the court, be enforced as a judgment, and judgment may be entered in its terms. Once leave is granted, the award is treated as a local judgment.

In both cases, once the necessary procedural step is completed (leave of the court in the case of an arbitral award, or registration in the case of a foreign judgment) the award or judgment is treated as if it were a judgment of the High Court of Barbados. It may then be enforced through the ordinary execution procedures, including:

• the issuance of a writ of execution;
• the obtaining of a charging order;
• the commencement of garnishee proceedings; or
• the appointment of a receiver over the judgment debtor’s assets to satisfy the debt.

A claimant may seek an interim freezing order to preserve assets pending enforcement, thereby preventing the defendant from dissipating or transferring assets to frustrate satisfaction of the award or judgment. To obtain such relief, the claimant must demonstrate:

• that the court has jurisdiction;
• that there is a good arguable case;
• that the defendant holds assets within the jurisdiction; and
• that there exists a real risk of dissipation of those assets.

The court will also consider whether there is credible evidence suggesting that the defendant may be unable or unwilling to satisfy any eventual judgment or award.

Proceeding on the assumptions outlined in the Model Answer, would a court in this jurisdiction recognise and enforce the arbitral award under the New York Convention?

In particular:

• Does the award fall within the scope of Article V(1) of the Convention, or would any of the grounds in Article V(1) justify refusal on the assumed facts?
• Is the subject matter of the dispute capable of settlement by arbitration under domestic law for the purposes of Article V(2)(a)?
• Would recognition or enforcement of the award be contrary to public policy within the meaning of Article V(2)(b)?

Response

Proceeding on the stated assumptions, a Barbadian court acting as the enforcing court under the New York Convention (“Convention”), as given domestic effect by the Arbitration (Foreign Arbitral Awards) Act (Cap. 110A) (“Foreign Arbitral Awards Act”), would recognise and enforce the arbitral award. None of the grounds for refusal under section 6 of Cap. 110A, which mirrors Article V of the Convention, would be engaged on the assumed facts.

Section 6(2)(b) of the Foreign Arbitral Awards Act — Validity of the arbitration agreement. The arbitration agreement is assumed to be valid under the governing law and the law of the seat. A Barbadian enforcing court applies a pro-enforcement presumption and would not go behind that finding. The agreement satisfies the requirement under section 2(1)(a) of Cap. 110A that an “arbitration agreement” be a written agreement to submit a difference capable of settlement by arbitration. Moreover, no incapacity of either party arises on the assumed facts that would engage section 6(2)(a) of the Foreign Arbitral Awards Act.

Section 6(2)(d) of the Foreign Arbitral Awards Act — Scope of the submission. The tribunal’s mandate was expressly limited to confirming that the judgment was final and unpaid and ordering the contractual sum and interest. The award falls squarely within that mandate. The tribunal did not enforce the judgment as a judgment, nor did it review or re-litigate the underlying merits; it gave effect to a separate contractual obligation that arose upon non-payment. No excess of jurisdiction arises, and the argument that the arbitration is, in substance, an attempt to enforce a court judgment would fail on the assumed facts.

Section 6(2)(c) and (e) of the Foreign Arbitral Awards Act — Procedural fairness and Composition. No procedural irregularity or improper composition is suggested on the assumed facts. The parties had full opportunity to be heard in the original proceedings, and the arbitral process operated within the agreed framework.

Section 6(2)(f) of the Foreign Arbitral Awards Act — Finality. The award is assumed to be final, binding, and neither set aside nor suspended at the seat. This ground does not arise.

Section 6(3) of the Foreign Arbitral Awards Act — Arbitrability under Barbados Law. Section 6(3) of Cap. 110A permits refusal where the award concerns a matter not capable of settlement by arbitration. That threshold is not met here.

The subject matter, non-payment of a contractual monetary obligation triggered by failure to satisfy a final court judgment, is plainly arbitrable under Barbados law. Section 2(1)(a) of Cap. 110A defines “arbitration agreement” as a written agreement to submit a present or future difference capable of settlement by arbitration, without imposing restrictions on the class of commercial disputes that may be so submitted. Monetary obligations arising from commercial contracts fall comfortably within that definition.

Consistent with the commercially inclusive approach reflected in Exfin Shipping (India) Ltd v. Tolani Shipping Co Ltd [2006] EWHC 1090 (Comm) and Hélice Leasing SAS v. PT Garuda Indonesia (Persero) Tbk [2021] EWHC 99 (Comm), which Barbados courts may treat as persuasive, a failure or refusal to pay an amount asserted to be due constitutes a difference capable of arbitration, even where liability and quantum have been conclusively determined elsewhere. The contractual trigger here is the existence of an unpaid final judgment; the essential character of the dispute remains one of non-payment of a monetary obligation.

The confirmatory or mechanistic nature of the tribunal’s mandate does not alter this analysis. Barbados law contains no provision excluding such disputes from arbitration, and no category of Barbadian public law reserves the enforcement of contractual monetary obligations exclusively to the courts.

Section 6(3) of the Foreign Arbitral Awards Act — Public Policy. Section 6(3) of Cap. 110A also permits refusal where enforcement would be contrary to public policy. That exception is narrowly construed and is only engaged where enforcement would violate justice or be an affront to the morals of the Barbadian society. That is not applicable in these circumstances.

Three considerations confirm this. First, the award gives effect to party autonomy by enforcing a contractual dispute resolution mechanism that the parties freely chose. This is a foundational principle that underpins the framework of Barbadian arbitration law as reflected in the Arbitration Act, Cap 110 of the Laws of Barbados, the Foreign Arbitral Awards Act and the International Commercial Arbitration Act, Cap 110B of the Laws of Barbados and Fiona Trust & Holding Corporation v. Privalov 114 [2007] UKHL 40. The novelty of the mechanism does not engage public policy. Second, the award neither contradicts nor undermines the foreign court judgment; the tribunal applied an agreed contractual framework to objective facts, without revisiting the merits. There is no interference with judicial authority and no inconsistency with the judgment itself. Third, there is no element of procedural unfairness: the parties had a full opportunity to contest the underlying dispute in the original proceedings, and the arbitration operated on a basis that was already res judicata on the merits.

Enforcement of the award would not violate any fundamental principle of Barbadian law or morality, and nothing in the structure or effect of the award is objectionable from a public policy standpoint.

Conclusion

On the stated assumptions, a Barbadian court would recognise and enforce the award under the New York Convention as implemented by the Foreign Arbitral Awards Act. The award is made pursuant to a valid arbitration agreement, falls within the scope of the tribunal’s mandate, is final and binding, and concerns subject matter that is arbitrable under Barbados law. Enforcement would not offend Barbadian public policy. No ground under section 6 of the Foreign Arbitral Awards Act, corresponding to Article V of the Convention, provides a basis for refusal.