The Arbitration (Amendment) Bill, 2025 (the “Amendment Bill”) proposes significant reforms to the Arbitration Act, 2009 (the “Act”) aimed at strengthening The Bahamas’ position as a premier jurisdiction for both commercial and trust arbitration. The Amendment Bill expands the scope of the Act, enhances confidentiality protections, and codifies mechanisms for resolving trust-related disputes.
Recognition of Trust Arbitration
A central innovation of the Amendment Bill is the express recognition of trust arbitration. Under the new section 6A, where the written terms of a trust provide for arbitration, this is deemed to be a binding arbitration agreement among the settlor, trustee, beneficiaries, and other relevant parties. This provision brings clarity to the arbitrability of internal trust disputes and aligns with global trends favouring arbitration in private wealth contexts.
Expanded Definitions and Jurisdiction
The Bill introduces new definitions to accommodate trust arbitration, including “administration question,” “arbitration agreement,” “person under a disability,” “protector,” and “trust arbitration.” It also clarifies that disputes arising under trust instruments are included within the meaning of “dispute” for arbitration purposes. Notably, courts may stay proceedings involving trust matters even on their own initiative unless all relevant parties are present or represented.
Enhanced Confidentiality and Privacy Protections
The Amendment Bill significantly strengthens confidentiality provisions. It repeals the detailed public interest balancing test under sections 23 to 25 of the Act and replaces section 22 with a simplified regime mandating private hearings for arbitration-related court proceedings unless objected to, in which case the court must assess whether justice requires public proceedings. This update reflects a shift toward greater privacy and party autonomy in arbitration practice.
Procedural Tools for Trust Disputes
The Bill introduces a new section 49A allowing arbitral tribunals to appoint representatives or arbitration guardians for minors, unborn persons, or persons under a disability. These provisions mirror court powers in trust litigation and provide a framework for safeguarding vulnerable parties within arbitration.
Jurisdictional and Cost Provisions
Tribunals are expressly empowered under section 49 to exercise the same jurisdiction as the court in administering or varying trusts. Costs provisions are updated to entitle trustees to recover arbitration-related costs from trust assets, subject to limitations.
AUTHOR
Nicholas Pennerman
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