The growing oil & gas industry has seen numerous international companies establishing a presence here but there is no legislation for arbitration within the sector which is why government is partnering to ensure disputes can be settled in country, according to Attorney General Anil Nandlall.
“With Guyana becoming an oil producer and the consequent explosion in the commercial sector of a large number of mega multinational companies now establishing, naturally we have to fashion new legislation to meet the demand of this commercial reality,” Nandlall told Stabroek News in an interview as he discussed the Ministry of Legal Affairs’ 2022 legislative agenda while announcing that work is ongoing on an Arbitration Bill.
“These large companies prefer to settle their disputes by arbitration. Any one of the agreements currently being executed by these companies contain arbitration clauses as the method of settlement of disputes. These clauses mandate that the arbitration be taken to metropolitan centres, such as London, New York, Paris, Brussels… just to name a few. We would like to prepare Guyana to be one of those centres, so that companies can have the option of settling their disputes right here,” he added.
The Attorney General noted that when cases globally are looked at, it is not impossible for this country to achieve the same level of jurisprudence, although “admittedly, we will have to travel a very far journey to meet the level of sophistication and gold standard established in those jurisdictions.”
Nandlall reasoned, “but we have to start somewhere,” and it is why government is planning into the future so as not to be left behind.
He said that equally important as this country’s development agenda, is ensuring the existence of a legal framework to deal with issues that may arise. And as oil and gas will change the economic landscape, legal and up-to-date measures are needed to be in place for the sector.
“Expectedly, the new developmental trajectory in which our nation is heading will require a new and modern legal and statutory foundation and framework. It is the Attorney General Chambers and the Ministry of Legal Affairs that is charged with the responsibility of charting this course. This will require the drafting and promulgation of a multiplicity of amendments to current legislation, the repealing of anachronistic statutory provisions and the drafting and enactment of modern and visionary legislation. In this regard, the Government of Guyana has a packed legislative agenda for 2022. This includes new laws for almost every sector and indeed every ministry in the government…” he posited, reiterating what he told the National Assembly during the 2022 budget debate.
“The Arbitration Bill is one of these [new laws],” he added.
Nandall emphasised that “the intent is to make Guyana self-sufficient and then try to make it attractive enough so that it can be regarded as an arbitration hub in the Caribbean and even Latin America.”
The Canadian government funded IMPACT Justice programme, he noted, has produced a modern arbitration Bill for the Caricom region and “Guyana will be one of the first countries that would be working towards implementing this Bill.”
“This will require a lot of training at various levels including the legal profession, the judiciary, the private sector and state functionary. There are some very experienced arbitrators or consultants operating in the region,” he added.
The IMPACT Justice programme is also assisting in coordinating suitably qualified persons to guide Guyana through this exercise.
Procedural
Nandlall stated his belief that the Bill is the most modern expression of arbitration legislation in the region and pointed that it is in compliance with all international standards, including the United Nations Commission on International Trade Law’s rules.
“The UNCITRAL Arbitration Rules provide a comprehensive set of procedural rules upon which parties may agree for the conduct of arbitral proceedings arising out of their commercial relationship and are widely used in ad hoc arbitrations as well as administered arbitrations. The Rules cover all aspects of the arbitral process, providing a model arbitration clause, setting out procedural rules regarding the appointment of arbitrators and the conduct of arbitral proceedings, and establishing rules in relation to the form, effect and interpretation of the award. At present, there exist three different versions of the Arbitration Rules: (i) the 1976 version; (ii) the 2010 revised version; and (iii) the 2013 version which incorporates the UNCITRAL Rules on Transparency for Treaty-based Investor-State Arbitration,” the UN website explains.
It also informed that the UNCITRAL Arbitration Rules were initially adopted in 1976 and have been used for the settlement of a broad range of disputes, including disputes between private commercial parties where no arbitral institution is involved, investor/state disputes, State-to-State disputes, and commercial disputes administered by arbitral institutions.
Nandlall said that work has already started on this initiative at the Attorney General’s Chambers. “We will be engaging with IMPACT Justice and the recommended consultants over the next few weeks. IMPACT Justice is also assisting with funding some of these endeavors. The model that we are pursuing, will be both judicially driven arbitration as well extra judicial arbitration. For example, you can have arbitration in a court matter or you can have it without going to court. The Bill shall facilitate both,” he explained.
“It is a major undertaking but it is part of the transformation taking place in our countries. It is a quick and very efficient way of settling commercial disputes that can take years in litigation, holding up billions of dollars in investment, finances and capital as well as the operations of large companies,” he added.
In the long term, government believes that Guyana would also be earning from the decision to have the law crafted because the monies for the process of having the settlement issues being done overseas will be used here instead.
“This will see millions of United States dollars that would have been spent in other jurisdictions being spent here. Obviously, we have to begin early to build capacity, like we are doing in every area of new endeavours,” Nandlall asserted.
