How swiftly are disputes handled in the Turks and Caicos Islands’ court system? Are there any common complications to cross-border resolutions that businesses should be aware of?
Relative to big international cities and other Caribbean jurisdictions, disputes can be handled quite quickly in the TCI court system, though the Covid-19 pandemic has increased the time it takes for actions to pass through the system. New civil rules are being drafted with a view to moving the system towards a more case-managed and thus court-controlled system.
Cross-border disputes do not generally produce their own unique complications. The days of foreign plaintiffs having, as a matter of course, to post security for the entirety of the anticipated costs of the litigation, appear to have been consigned to history, save in respect of those plaintiffs residing in territories with notoriously difficult legal systems and which present problems for successful defendants enforcing orders for costs. Instead, any security for costs ordered is likely to be limited to an amount representing the anticipated additional cost (if any) of enforcing in the plaintiff’s jurisdiction an order to pay the defendant’s costs, over and above the cost to be expected by enforcement in the TCI.
The move towards online hearings and recognition that virtual or hybrid hearings are likely to remain part of the future means that many of the drawbacks associated with parties being in foreign countries are no longer of such concern.
Are there any cultural issues that businesses should be aware of when dealing with a legal dispute in Turks and Caicos? How can working with a third party on the ground help to navigate these issues?
Although disputes can be resolved relatively quickly, it should be taken into consideration that the TCI is a very small jurisdiction, with small law firms but still a high volume of disputes. As such, many attorneys are overworked and have access to limited resources in terms of the number of personnel they employ. This can lead to longer response times than many are used to both in terms of attorney/client communications and interparty correspondence.
In terms of its legal system, the TCI operates as a common law jurisdiction and disputes are handled by the courts through an adversarial system, such as one would find in England & Wales, Canada and the USA.
It is always advisable to take advice from local lawyers before entering into business in a foreign country such as the TCI and to engage local lawyers as soon as possible if a dispute arises.
What are the most common challenges when dealing with disputes in TCI? What measures can businesses take to navigate these obstacles to secure a cost-effective, timely resolution?
One of the most common challenges is that the relatively small number of law firms specialising in commercial dispute resolution leads to the more popular firms being conflicted from acting. This is another reason why it is advisable to engage a local law firm before entering into business with a contractual counterparty.
Top Tips for cost-effective and timely dispute resolution in TCI
- Do your homework before entering into any contract. Ensure that the terms of any contract you enter into are clear, unambiguous and appropriate from the outset and are regularly reviewed and updated. Ensure your contract makes provisions for how you will handle any disputes. It is always a good idea to have a litigator assist in the contract drafting.
- Be organised during the performance of your contract. It is often said that “documents win cases” or “if it isn’t in writing, it didn’t happen”. Maintaining a clear and complete record of communications with the other party or parties to your contract can be invaluable in the event of a dispute.
- Keep all lines of communication open. Open and frank communication can often help prevent disputes or lead to amicable solutions. If the key persons with the day-to-day relationship can no longer communicate without hostility, consider moving the discourse to more senior personnel. If that fails….
- Consider mediation or other non-litigious dispute resolution. Involving a professional, trained, neutral third party (or parties) can bring an objective view to bear on the dispute and allow both sides to air their views without necessarily directing hostility at each other. From 15 October 2021, the TCI’s Court Connected Mediation Rules 2021 come into effect and apply to disputes other than insolvency proceedings and non-contentious probate proceedings.
- Take legal advice early. Understand your contractual obligations, how disputes should be dealt with and how to preserve your rights. Do not be put off by an attorney’s hourly rate. Experienced attorneys often take less time to handle issues and can be more cost-effective than someone charging a lower rate.
