… the judge transforming Guyana’s arbitration landscape

By Richard Bhainie

WITH Guyana rapidly transforming into an attractive commercial environment, every sector must be kept abreast to facilitate the ingredients conducive to the country’s development.  The legal sector is no exception and with dozens of international powerhouses settling in Guyana, the country’s laws must encapsulate and reflect a contemporary jurisdiction.

In Guyana, the thought of resolving disputes through the courts is often and culturally characterised by delays, backlogs and unsatisfactory results, resulting in a litigious climate deterring parties from pursuing their claims. This is where arbitration is an Alternative method of Dispute Resolution (ADR), alongside mediation, conciliation etc. that can be utilised by parties to a dispute, to facilitate a mutually acceptable outcome without resorting to the courts.

It is extensively preferred in the commercial sectors as it is a private procedure which allows for confidentiality; is time efficient and is conducted through a party-led manner, in contrast to the traditional nature of the court system.

The Guyana Chronicle on Saturday spoke with Justice (ret’d) Courtney Ashton Abel, the legal luminary contracted by the Government of Guyana to transform the country into the ‘El Dorado’ arbitration hub.

A Guyanese by birth, Justice Abel departed the shores of British Guiana with his family from an early age to the United Kingdom. He completed his primary, secondary and tertiary education in England where he graduated from the University of Warwick with a Bachelor’s of Law (LL.B) in 1977 and then the Inns of Court School of Law from the Bar Vocational Course in 1979.

He is a member of the Honourable Society of Inner Temple and was called to the Bar of England and Wales in February 1980, and had undertaken Pupillage at Four Pump Court, Temple, England.

As a young lawyer, he had the opportunity to learn from some of the greatest legal minds in the world; in 1981 he represented the Commission for Racial Equality (CRE) at the Lord Scarman Enquiry into the Brixton Disturbances, led by Lord Stephen Sedley, Q.C., researching and presenting a detailed legal advice on police accountability.

He then moved on to the Brent Young Peoples Law Centre where he spent six years as counsel and project administrator dealing with a gamut of issues. He was responsible for community projects and generally represented the interest of young people at a strategic level.

“My experience taught me what I wasn’t taught at university, it taught me the most important skill for a lawyer isn’t always fighting cases, it might be meditating, negotiating and arbitrating, and the law schools never concentrated on those skills,” Justice Abel explained.

He added: “the good thing is I was trained in very good Chambers, they had about six Queens Counsel and I saw what they were doing, they were displaying these skills that I wasn’t taught and I picked up as much as I could.”

After spending eight years in the United Kingdom practicing, it was his desire to return Guyana, however, his friend John Benjamin Q.C. asked him to work with him in Anguilla. He spent seven years as Deputy Head of Chambers, Caribbean Juris Chambers in Anguilla from 1988 to 1995 before establishing his own law firm, Courtney Abel & Associates, which later developed into Caribbean Associated Attorneys in 1998 where he practiced until 2012.

During his tenure, he was twice elected to serve as president of the Anguilla Bar Association; he also served as secretary, vice president and as president of the Organisation of Eastern Caribbean States (OECS) Bar Association, and as treasurer and president of Organisation of Commonwealth Caribbean Bar Associations (OCCBA) as well as vice president of the Anguilla Financial Services Association.

Justice Abel was appointed Judge to the Supreme Court of Belize in October 2012, having sat regularly as an Additional Magistrate in Anguilla from 2002 to 2012. As a Justice of the Supreme Court, he did extensive work in alternative methods of dispute resolution or as he likes to phrase it “appropriate methods of dispute resolution.”

He innovated in Belize and has extensively presented regionally in the peaceful resolution of disputes by the mediation process. On behalf of the Chief Justice of Belize, he drafted the amendment to the Civil Procedure Rules of Belize to include Court-Connected Mediation as an additional option available to civil litigants. He served as Chair of the very effective and well-operating National Court-Connected Mediation Committee; and was instrumental in overseeing the very successful introduction of a system of mediation into Belize.

Justice Abel conceived and pioneered in Belize (and the Caribbean) and prepared the first draft of the innovative Court-Connected Arbitration Rules; he arranged and then oversaw the training of about 50 Arbitrators (both lawyers and lay persons) and piloted the draft rules to the point of enactment by the Chief Justice.

PLANS FOR GUYANA

He has returned to his homeland and is excited to bring all of his expertise to prepare Guyana in becoming the ‘El Dorado’ destination in relation to ligation.

“Arbitration can be a catalyst for transforming the whole country, it provides a manageable and orderly way of leveraging the phenomenal recourses that we have, alongside a managed participation by outsiders in the process, a lot of expertise can be brought from outside and be deposited here,” the judge noted.

He added: “it’s a service industry; on top of the resource richness we have, you have to have the servicing structure for it to function in a global economy.”

The judge explained that he intends to ‘carve out’ within the legal system of Guyana, a very well regulated and managed space for resolving, particularly commercial disputes, using various means of dispute resolution, inclusive of mediation and arbitration.

He has so far met with the Attorney General, Anil Nandlall, S.C, and recommended that Guyana sign onto and ratify into its domestic jurisdiction, the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration (1985), which he explained is the gold standard model legislation.

“The infrastructure has got to be right and state of the art; that’s why I made the recommendations, but then you have to make people feel like the system here will operate fairly independently, in a cost-effective way and efficiently, you have to bring all these things together,” Justice Abel explained.

He added: “What I’m trying to do is not just set up the rules but set up the whole architecture for the whole system, I am creating the early stage of the institution; I am starting very gently because I think something like this has to evolve.”

Justice Abel explained that good arbitrative practice creates a space where the arbitrative system is supported by the court but the court has as little direct interference with it as possible.

“The difference between arbitration and the court is that you don’t have a judge, you have a trained arbitrator who makes an award which is enforceable,” Justice Abel explained.

He noted that this system is ‘party led’ and is sympathetic towards the parties, which results in it being the first choice method of dispute resolution for the commercial sector.

He foresees the myth of ‘El Dorado’ becoming a reality for the legal sector, but emphasised that not only will the legal sector be transformed, but every industry will be able to benefit from Guyana becoming an Arbitration hub.

“I feel very privileged that the confidence has been reposed in me to carry out this very function and I do not take it lightly, it’s not the easiest job to do but despite that I am confident of what we will achieve,” Justice Abel said.

While is he cognisant that he may not be able to predict all the difficulties that may arise during this transformative process, he is equipped and ready to face them as they come.

Justice Abel will be presenting at a Webinar titled “Guyana, The Next Arbitration Hub: The Journey Begins” with the Ministry of Legal Affairs and the Guyana Bar Association on Monday, December 21 from 16:30 hours via Zoom.