Archive for May 24th, 2009
Reformers ask for input on new arbitration laws
(CNS): The Law Reform Commission is asking for public comment and contribution regarding its review of Cayman’s Arbitration Laws. The review has been prompted by the fact that the financial services industry does not generate any international arbitration business which is actually conducted in the Cayman Islands. Although the majority of civil work concerning the financial services industry is dealt with satisfactorily in the Grand Court, considered an advantage for the judiciary, the Legal department believes that the outmoded Arbitration Law is a deterrent to securing more arbitration business.
The goal of the review is to introduce proposals for the reform of a legislative regime which could drive business to Cayman. According to the review document (available on the GIS website) arbitration is a mechanism of binding dispute resolution which is the equivalent of litigation in the courts. At the same time however, it is distinct from the various forms of non-binding dispute resolution techniques, such as negotiation or mediation. An arbitration may be classed as international if the parties to the arbitration are domiciled in different countries and the dispute originated in a foreign state or the subject matter of the dispute involves a state other than the state in which the parties are nationals. The critical aspect of arbitration is that it is based on an agreement between parties to conduct proceedings outside of the publicity and formality of the courts.
Among the potential advantages that may emerge from engaging in arbitration proceedings are the flexibility of the arbitration procedure, privacy of arbitration proceedings, opportunity to determine choice of arbitrator, finality of arbitration proceedings, opportunity to identify a neutral forum to conduct the proceedings, efficiency in the conduct of the proceedings and cost effectiveness.
Arbitration matters are dealt with in the Cayman Islands under the Foreign Arbitral Enforcement Law (1997 Revision), the Arbitration Law (2001 Revision) and the Grand Court Rules 1995 (Revised Edition) Orders 56 and 73. However, there is wide spread support for its repeal and replacing it with a new law substantially based upon the UNCITRAL Model Law, which would apply to both domestic and international arbitrations.
The Law reform commission has also suggested the elimination of administrative obstacles by changes to the immigration law regarding temporary work permits to facilitate the free movement of arbitrators, parties, witnesses and advocates.
“If Cayman sees value in transforming itself into an effective international arbitration venue, it must further enhance its own legislative strengths which would be considered by parties upon choosing Cayman as their seat of international arbitration. The main strength is provision of the appropriate legislative framework which offers the legal safeguards to protect the arbitration system. We believe that these safeguards are rooted in the UNCITRAL Model Law,” the commission writes.
Members of the public are invited to submit their comments on any aspect of the Discussion Paper.
UK reviews local AIDS policy
(CNS): The UK Department for International Development (DFID) is undertaking a review of policies and legislation in its six Caribbean Overseas Territories, including the Cayman Islands to determine how these influence stigma and discrimination against people with HIV/AIDS. The review will also examine treatment and prevention procedures.
The analysis will specifically look at the atmosphere in which a country responds to HIV/AIDS and will identify legal and socioeconomic issues that have a significant impact on HIV-related stigma and discrimination. I
t will also compare local preventative and treatment procedures with international best practice.
“We welcome this opportunity for an independent review of our HIV/AIDS policies and look forward to implementing any recommendations necessary to improve our policy or legislative framework,” said Chief Officer of Health Diane Montoya.
The study project is part of DFID’s support to the Caribbean Epidemiology Centre (CAREC), which in turn provides planning and technical assistance to Caribbean OTs in taking action against HIV/AIDS.
Tax haven seeks respect
(CQ Politics): With President Obama pledging to crack down on offshore tax havens, it was no surprise that the Cayman Islands Financial Services Association hired a Washington lobbying firm to look after its interests. The firm Quinn Gillespie & Associates has a reputation for effective — and quiet — diplomacy but its Caribbean client seems interested in anything but quiet. Quinn Gillespie helped Travers publicize a sternly worded letter to the president on the subject, but says his views should be taken in context. “He doesn’t know anything about the United States,” a staffer with the firm said.
The problems of first past the post
One of the questions that is often asked in jurisdictions such as ours where elections are conducted on a first past the post basis is how democratic that system really is, because more often than not those that end up winning a seat in the legislator have not got the support of the majority of the electorate.
For example, Wednesday’s result may on the surface appear to be an emphatic vote for the United Democratic Party. In reality, however, only two of that party’s candidates and one from the PPM actually received a majority of support of the total electorate. McKeeva Bush, Rolston Anglin and Arden McLean were the only three candidates to reap more than 50% of the actual electorate in their respective constituencies. This means that the other 12 candidates received more votes in their districts than any other candidate but in every case more voters chose not to vote for them by voting for a number of other candidates or not turning up at all.
In four of Cayman’s six districts even the first elected candidates failed to secure the popular support of all those entitled to vote, and in some cases MLAs have been returned to office with only around a third of the potential vote.
There is an argument that if people do not turn up to vote for someone or spoil their paper deliberately to make it clear they do not believe any candidate deserves their support their failure to take part in the election process cannot be considered. If, therefore, we are to look at the results based purely on those who did turn out then we must also add the remaining West Bay candidates Cline Glidden and Cpt Eugene, as well as Mark Scotland in Bodden Town, both of the Sister Islands MLAs and Ezzard Miller in North Side, who all polled more than 50% of the vote that turned out.
What this means is that we still have candidates that will form part of the new government that did not win a majority of the popular vote. Moreover, there are some candidates who received a greater percentage of the popular vote than others that were elected but who have not won a seat in their constituency.
This issue is not unique to Cayman. It is a common problem with a first past the post system and is further compounded where the electorate has multiple votes. In many cases on Wednesday voters chose not to use all of the votes available to them further distorting the result, and where those that did use all their votes, when they voted ‘straight’ for independents they effectivley split the vote and cancelled themselves out.
Whether or not Cayman will in the future move to single member constituencies with one man one vote or not remains to be seen. What is clear, however, from this recent election is that now the party system is firmly entrenched independents cannot win under a first past the post system.
If the majority of Cayman voters are not satisfied with the party system, the only way is for independent candidates to form some kind of alliance that will enable candidates to be fielded in organised opposition to the parties, or more realistically to campaign for proportional representation which is arguably a more democratic way of electing political representatives.
While first past the post remains a popular form of vote because of its simplicity, it is not the most democratic. Various forms of proportional representation exist, including party lists or the single transferable vote which does not depend on the existence of political parties but where the elector effectively lists candidates in order of preference.
These systems are criticized, however, for producing coalition governments, which can often be unstable and unproductive. But if the pre-election debate and the pattern of voting in Cayman in this election are anything to go by, a coalition government was what voters had in mind. An assessment of how votes were distributed in George Town and Bodden Town, for example, would suggest that is exactly what people wanted, with the result clearly indicating that the majority of voters did not vote straight for any party but mixed their vote with party candidates and independents, but then failed to achieve their goal.
The party system is far more entrenched in Cayman than the electorate has understood and if the voters of this country really don’t want that, voting for a combination of party candidates and independents will not have the desired effect. If Cayman wants a coalition government it needs a new voting system. First past the post will always favour the party and will either result in the status quo or a complete flip, as occurred in this election, the result being almost a mirror image of the 2005 one right down to the almost ‘party’ independent.
The argument for proportional representation has not been won in the world’s major democracies such as the UK and the United States but it is catching on. At the last count more than 70 countries around the world use some form of proportional representation.
The party system and first past the post is clear; people know what they are voting for and what they will get. Proportional representation on the other hand can be more complicated and throw up unexpected results, with winners being less clear. An informed observer of the political scene in the Cayman Islands, however, would probably conclude that the political glove of proportional representation may well be a better fit for the local electorate than the current system.
With the new constitution receiving a ‘Yes’ in the referendum there is provision for Cayman to change its electoral system, and as the debate begins about how and when to move to one member one vote, Cayman would be well served to at least begin considering if ‘first past the post’ is truly serving its democratic interests.
UK’s leading tabloid tells story of SPIT
(CNS): One of the UK’s biggest selling tabloids has picked up the story of the excessive cost of the Special Police Investigation here in the Cayman Islands and the departure of the team’s former SIO Martin Bridger. The Daily Mail is well known for its scandal stories and exposés. However, on this occasion there are no revelations or new information about the investigation. The story merely covers the surface of the issue and details that were already widely known in this jurisdiction. Nevertheless the story paints an unfortunate picture of Cayman at a time when serious attempts are being made to improve the overseas image.
Written by Stephen Wright, who has renamed SPIT the ‘Sunshine Squad’, he gives a very broad outline of the events here since the arrival of SPIT in September 2007 to the recent closure of the criminal investigation against former Commissioner Stuart Kernohan and Chief Superintendent John Jones, as well as an estimate of the costs so far of Operation Tempura.
However, CNS can reveal that CS Jones who is currently recuperating from a surgical procedure will be returning to his post in the senior ranks of the RCIPS’ shortly.
The story can be found at here.