Director of the Kuala Lumpur Regional Centre for Arbitration and president elect of the Chartered Institute of Arbitrators Sundra Rajoo is urging Caribbean countries to sign on to the United Nations Commission on International Trade Law (UNCITRAL) Model Law.

He noted that if more Caribbean countries were to enact the Model Law, it would bring harmonisation and integration to the region in conformity with the aims of Caricom. One of the virtues of the Model Law framework, he said, is its “inherent flexibility or pliability” , which means that states can preserve peculiar historical features of their arbitration regimes and aspects of their legal cultures or traditions if they so wish. “What is envisaged is legal harmonisation, not legal homogenisation,” he said.

Rajoo, who was addressing a recent seminar at Mona Law Institutes of the University of the West Indies, said there has been a plethora of ambitious projects to reform the Caribbean’s arbitral infrastructure, focused on both legislation and institutions.

However, he said much remains to be accomplished before the envisioned transformation of the Caribbean arbitration landscape. “In many of the 15 countries that comprise the Caribbean Community and Common Market (CARICOM), fundamental law reforms are needed,” he said. In the Bahamas, Belize, Guyana and Jamaica, arbitration law is still based on the English Arbitration Act 1889, which has long been replaced in England.

He explained that other countries, like Barbados and, more recently, the British Virgin Islands have promulgated the UNCITRAL Model Law and offer up-to-date arbitration regimes. The BVI, he said, is “a Model Law-conformant jurisdiction in every respect” and is in the process of establishing its own international arbitration centre, BVIAC.

As a definite augury of the forthcoming adherence of all Caricom member states to the UNCITRAL Model Law regime, Rojoo noted the work of Improved Access to Justice in the Caribbean or IMPACT Justice – a non-governmental organisation that was established by the Caribbean Law Institute of the University of West Indies under the auspices of Caricom with financial support from the Canadian government.

The NGO, he said, operates in Caricom member states and aims to create a modern, harmonised, enabling structure to improve trade, investment and development. It has trained lawyers in legislative drafting, mediation, arbitration and in expanding and operating legal databases with a view to legal harmonisation. It has also recently formed a Model Arbitration Legislation Committee.

On the institutional rather than the legislative front, Rajoo noted the “bold, some would say grandiose vision” of the Organisation for the Harmonisation of Business Law in the Caribbean (OHADAC), a supra-national body created in 2007 and covering 38 states in the Greater Caribbean, to create a unified system of Caribbean business law.

“The body emulates the Organisation for the Harmonisation of African Business Law (OHADA), which has operated in francophone West African states with great success,” Rajoo said. He noted, however, that OHADA operates in a “comparatively homogenous legal and political landscape”, while the OHADAC states have fundamentally different legal traditions and political persuasions.

Despite this, Rajoo said OHADAC has defied the cynics to date by producing, among other things, draft principles on international commercial contracts and bills for commercial-related Model Laws, together with the Universities of Grenada and Madrid and Caribbean legal experts.

He said harmonising arbitration is within OHADAC’s sights – this September saw the launch of the OHADAC Caribbean Centre for Arbitration and Conciliation in Pointe-à-Pitre, Guadeloupe, which has since published draft rules.

Rajoo shared the experience of Model Law states in Asia which have become key players in arbitration, competing with the likes of London, Paris and New York – including his own state, Malaysia. “If the Caribbean keeps going with its current initiatives, there is no reason its arbitration prominence should not develop apace,” he argued.

According to Chris Malcolm, a former Attorney General of the BVI who is now director of the Mona Law Institute at the University of West Indies in Kingston and chair of the Caribbean chapter of the Chartered Institute of Arbitrators, a lot is happening in the region, with his own law faculty playing a key role in raising awareness of arbitration.

As well as hosting Rajoo’s lecture in November, the faculty played host to a four-day conference and training programme this July to mark the centenary of Chartered Institute of Arbitrators. The event looked at the role of arbitration in promoting regional and economic development and included what he says was the first mock international arbitration to be held in the Caribbean, conducted under ICC rules and applying the UNCITRAL Model Law.

Speakers came from all over the Caribbean, with sponsorship and support provided by the University of the West Indies, the IMPACT Justice project, the ICC International Court of Arbitration, UNCITRAL secretariat, Jamaica Chamber of Commerce and Organisation of American States.

Malcolm reports that, like Rajoo, several speakers at that event stressed the need for more Caribbean countries to adopt the Model Law. In Jamaica, there were efforts to implement new legislation in 2011, he says but these were overtaken by an election, with the replacement government showing little interest in continuing the effort.

Despite its old-fashioned law, Jamaican court decisions confirm substantial judicial support for arbitration, he says.

Malcolm also noted how many successful arbitration centres worldwide have received critical support from academic institutions such as the National University of Singapore and Queen Mary, University of London. He sees the Mona Law Institutes as well- placed to perform a similar role in the Caribbean.