Guyana’s legal, statutory framework protecting investors’ confidence most robust in Caribbean – Devindra Kissoon
…AG’s Chambers modernising arbitration system
Guyana’s legal and statutory framework in the investment arena is being hailed as one of the most robust in the Caribbean region and on par with those of developed countries.
The assessment was made by prominent attorney Devindra Kissoon while on a panel discussion, hosted by the American Chamber of Commerce Guyana (AmCham) on the importance of the rule of law for foreign investment.
Kissoon is the founder of the London House Chambers. He has extensive knowledge in the legal arena and has practised in many Caribbean countries and the United States and London.
“Guyana, despite what may attract the public headlines, has one of the most legal and statutory systems in the Caribbean, one of the most robust court structures in the Caribbean where investors rights are adequately secured,” Kissoon said on Monday night.
He said that investors can come here and invest quite freely, adding that to date “we have seen no situation where a private party or the State had managed to abscond or ignore its legal rights and not be made to adhere to what was agreed…despite what is happening in the backdrop, the courts here are not afraid and they do respect the rule of law…we believe that Guyana is really a safe haven for investors.”
He noted that Guyana’s laws, just like the rest of the Caribbean, are based on English Commonwealth principles and statutes. However, there is an exception when it comes to property and company matters.
Since his return to Guyana, Kissoon has a large clientele of foreign companies/persons seeking investment in Guyana and he explained that from 2014 to date, there have been continuous improvements in the judicial systems. He said that the Judiciary is actually one of the most efficient judiciaries in the Caribbean especially with oversight from the Caribbean Court of Justice, which is Guyana’s highest appellate court.
“The courts itself – the standards are higher than when compared to our sister countries. Certainly, meeting more advanced economies in the Caribbean and with the speed of resolution, to the extent that there is limited exposure with complexities from the disputes, the availability of the appellate process coupled with the oversight of the Caribbean Court of Justice gives great investor confidence with things that go awry they can be easily straightened out,” Kissoon posited.
He explained that initial court proceedings would typically take between three and 12 months to be resolved except in cases with complex disputes and mountainous stacks of evidence and witness testimonies. The lawyer furthered that the local courts would not adjourn for long periods and that trials are conducted on a day to day basis. He also commended the Commercial Court Judges for their robust and efficient delivery of justice.
In the appeal arena, Kissoon posited that it is on par with the international standard of just about 3 years with a decision within 3-8 months.
“So, from beginning to end there is a comprehensive timeline of 4-5 years for resolution of a matter which is not shoddy compared to New York where I was for 13 years or London or Barbados or Trinidad,” he related.
He said in their meetings with prospective investors, they are quite often asked about the protections in the tendering process and explained that small countries like Guyana tend to have a poor reputation and perception when it comes to the tendering process.
He added that the perception is that tendering is not done in a fair, transparent and equal manner which causes concerns for investors. But he lauded the fact that with the current procurement legislations in place, it provides the investors with avenues for redress which is promptly delivered by the judicial system.
“I am pleased to say that the rule of law steps in (where there are contentions about tendering) in Guyana quite promptly to quash decisions by tender bodies which may make decisions which may be unfair or doesn’t follow the law. Guyana actually has under the auspices of our Attorney General, one of the most advanced procurement legislations in the Caribbean and it’s something that is taken quite seriously. If for some reason there is some inadvertence on the side of the public body, the courts are quick to step in to correct what is wrong and our jurisprudence is replete with cases from the time that Act came to force to present where persons have gotten a speedy resolution to matters,” the attorney informed.
Modernising arbitration legislation
Meanwhile, Kissoon said that arbitration and foreign judgments are respected by the local judicial system in spite of Guyana’s old Arbitration Act.
In relation to Guyana’s Arbitration Act, Attorney General Anil Nandlall – who also appeared on the panel discussion – said that his Chamber is the currently reviewing the Act.
“Right now, we are examining the arbitration architecture to make it modern and there is a model legislation promulgated in the world and we are in the process of adjusting it to meet Guyana’s expectations and to also link it to the Judiciary while at the same time having arbitration as a process available to the parties outside of the legal system if it does not wish to go into the formal legal system.
“So you have a hybrid arbitration system – one that is integrated and forms part of the judicial process and one that is wholly independent of the judicial process. The contracts now, they say that if there is a dispute between the parties including the Government of Guyana, they have to go to Brussels or London or New York or Texas to resolve these disputes. We can resolve them right here by arbitration once we put the requisite mechanisms in place and the statutory framework in place that is modern and responsive as those in the destinations chosen by these contracts,” the AG explained.
Nandlall said that arbitration is one of the means of alternative procedures to the Judiciary and that his office is also working on a new dispensation to deal with mediation. Now, in every contract – particularly those with the oil and gas companies – there are arbitration clauses and the AG related that once the clause is included, it means that the matter will have to go to arbitration and then delay the dispute through the process.
He reminded that Guyana’s arbitration structure is over 5 decades old, which is clearly archaic and cannot meet the demands of new and dynamic industries. (G2)