27 th July International Swaps & Derivatives Association 10 East 53 rd Street, 9 th Floor, New York, Attention: Annabel Akintomide

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1 Eleven Albion Corner Dere & Albion Streets Port of Spain Trinidad, W.I. Mail: P.O. Box th July Tel No: (868) Fax No. (868) Web site: International Swaps & Derivatives Association 10 East 53 rd Street, 9 th Floor, New York, Attention: Annabel Akintomide Re: ISDA Informal Country Update Trinidad and Tobago We are pleased to provide this Informal Country Update on the general regulatory and legal environment applicable to derivatives transactions in Trinidad and Tobago. This Informal Country Update is meant to provide a helpful overview of certain aspects of the regulatory regime in Trinidad and Tobago applicable to derivatives transactions. It is not, however, intended to be formal advice - all transactions will contain their own individual facts and therefore we strongly recommend seeking specific advice before proceeding with any transaction. RESPONSES TO QUESTIONS A - ENFORCEABILITY 1. Do OTC derivatives transactions face an enforceability problem (e.g. due to antiwagering provisions etc. under local law)? OTC derivatives transactions are recognised and enforceable in Trinidad and Tobago. As discussed below, although Trinidad & Tobago does have legislation restricting gaming, in our view such legislation will not affect the enforceability of OTC derivatives transactions. Analysis While Trinidad and Tobago do place restrictions on gambling under the Gambling and Betting Act, Chap. 11:19, in our view these restrictions will not apply to OTC derivatives Partners Nicole Ferreira-Aaron Debra Bharath Thompson Jonathan Walker M. Glenn Hamel-Smith Gregory Pantin Angelique Bart Luke Hamel-Smith Fanta Punch Catherine Ramnarine Cherie Gopie Melissa Inglefield Partners Emeritus Philip Hamel-Smith Timothy Hamel-Smith Christopher Hamel-Smith S.C. Grantley L. Wiltshire Consultant Candice Jones-Simmons Associates Linnel Pierre Krystal Richardson David Hamel-Smith Miguel Vasquez Nikkel Wiltshire

2 transactions. We are supported in this view by the Securities Act, Chap. 83:02 and the Bankruptcy and Insolvency Act, Chap 9:70, both of which explicitly refer to certain derivatives transactions and therefore implicitly recognise their enforceability. The Gambling and Betting Act, prohibits: (a) the keeping of premises for gambling; and (b) gambling in a public place, where to gamble is defined as to play at or engage in any game of chance for winnings in money or money s worth and a game of chance is defined as including a game of chance and skill combined and a pretended game of chance or of chance and skill combined but does not include any athletic game or sport. In our view the Gambling and Betting Act will not apply to OTC derivatives transactions as the use of the words play and game indicate that the prohibitions are to apply only to traditional gambling, such as card, table and machine games. OTC derivatives transactions are unlikely to be classified as something one plays or a type of game; rather in our view they would be classified as a type of investment. Indeed, to our knowledge the restrictions on gambling under the Gambling and Betting Act have never been applied in Trinidad and Tobago to OTC derivatives transactions. In support of our position we note, that the Securities Act explicitly recognises derivatives which are defined as, an option, swap, futures contract, forward contract, or other financial or commodity contract or instrument whose market price, value, delivery obligations, payment obligations or settlement obligations are derived from reference to or based on an underlying interest (including a value, price, rate, variable, index, event, probability or thing),. In referring to derivatives the Securities Act takes it for granted that they are enforceable. Similarly, the Bankruptcy and Insolvency Act, at section 49, explicitly makes reference to currency or interest rate swap agreements; basis swap agreements; spot, future, forward or other foreign exchange agreements; cap, collar or floor transactions; commodity swaps; forward rate agreements; repurchase or reverse repurchase agreements; spot, future, forward or other commodity contracts; agreements to buy, sell, borrow or lend securities, to clear or settle securities transactions or to a act as a depository for securities; any derivative, combination or option in respect of, or agreement similar to, such agreements or contracts. As with the Securities Act, the Bankruptcy and Insolvency Act takes it for granted that such transactions are enforceable.

3 2. (a) Are there provisions (of a statutory, customary, common law etc. nature) in local law that provide for the enforceability of close-out netting both pre and post insolvency? Pre-insolvency enforceability Subject to the potential issues discussed below under the heading Potential Issues, preinsolvency close-out netting provisions are enforceable in Trinidad and Tobago under the common law principle of freedom of contract. Post-insolvency enforceability Subject to the Potential Issues and applicability to financial institutions and insurances companies discussed below, post insolvency close-out netting provisions are enforceable if: (a) the Closing of the agreement is not triggered by reason only that (i) the insolvent person is insolvent, or (ii) a proposal to the creditors of the insolvent person for a composition, extension of time, or scheme of arrangement (or a notice of intention to file an insolvency proposal), has been filed in respect of the insolvent person; or (b) the close-out netting provisions are in relation to an Eligible Financial Contract which is defined as: i. a currency or interest rate swap agreement; ii. a basis swap agreement; iii. a spot, future, forward, or other foreign exchange agreement; iv. a cap, collar or floor transaction; v. a commodity swap; vi. a forward rate agreement; vii. a repurchase or reverse repurchase agreement; viii. a spot, future, forward or another commodity contract; ix. an agreement to buy, sell, borrow or lend securities, to clear or settle securities transactions or to act as a depository for securities; x. any derivative, combination or option in respect of, or agreement similar to, an agreement or contract referred to in paragraphs (i) to (ix); xi. any master agreement in respect of any agreement or contract referred to in paragraphs (i) to (x); xii. any master agreement in respect of a master agreement referred to in paragraph (xi); xiii. a guarantee of the liabilities under an agreement or contract referred to in paragraphs (i) to (xii); or xiv. any agreement of a kind prescribed under the Bankruptcy and Insolvency Act.

4 Analysis Close-out netting involves two stages: (i) Closing in which the obligations of the parties are terminated, and (ii) Netting in which the loss/profit on each transaction is set off against each other to produce a single net sum owed by one party to the other. Under section 49 of the Bankruptcy and Insolvency Act different rules with regard to Closing apply to transactions which fall within the category of Eligible Financial Contracts (as defined above) and those which do not. Eligible Financial Transactions Under sections 49(7) and 49(9) of the Bankruptcy and Insolvency Act, close-out netting of Eligible Financial Transaction post insolvency is explicitly permitted. Section 49(9) states, for greater certainty, where an eligible financial contract entered into before the filing in respect of an insolvent person of (a) a notice of intention; or (b) a proposal is terminated on or after that filing, the setting off of the obligations between the insolvent person and the other parties to the eligible financial contract, in accordance with its provisions, shall be permitted; and if net termination values determined in accordance with the eligible financial contract are owed by the insolvent person to another party to the eligible financial contract, that other party shall be deemed to be a creditor of the insolvent person with a claim provable in bankruptcy in respect of those net termination values. Transactions other than Eligible Financial Contract The Closing of transactions which do not fall within the category of Eligible Financial Transactions is more tightly controlled. If Closing is permitted in such a transaction, then in our view Netting will also be permitted and therefore the provision will be enforceable. Closing Section 49(1) of the Bankruptcy and Insolvency Act, Chap. 9:70, prohibits persons from (a) terminating any agreement with an insolvent person, or (b) claiming an accelerated payment, by reason only that: i. the insolvent person is insolvent; or ii. a proposal to the creditors of the insolvent person for a composition, extension of time, or scheme of arrangement, (or a notice of intention to file such a proposal) has been filed in respect of the insolvent person. Further, under section 49 (5) of the Bankruptcy and Insolvency Act, any provision of an agreement that has the effect of providing for or permitting anything that in substance is contrary to the prohibitions against termination and acceleration in section 49(1) is of no effect or force.

5 Consequently, in the case of transactions other than Eligible Financial Contracts, the Closing of a transaction will only be enforceable if such Closing was not by reason only that (a) the insolvent person is insolvent; or (b) a proposal (or a notice of intention to file a proposal) has been filed. It is therefore important in the case of transactions that are not Eligible Financial Contracts to include events of default that permit the transaction to be terminated that are independent of insolvency or the filing of a proposal. Netting In our view netting will be permitted under the Bankruptcy and Insolvency Act in respect of contracts that are not Eligible Financial Contracts. There are no provisions prohibiting netting. Further the Bankruptcy and Insolvency Act recognises the concept of netting in section 86(3) which states, where there have been mutual credit, mutual debts or other mutual dealings between a bankrupt and any other person proving or claiming to prove a debt in the bankruptcy, an account may be taken of what is due from one party to the other in respect of such mutual dealings, and the sum due from the one party shall be set off against any sum due from the other party, and the balance of the account, and no more, shall be claimed or paid on either side respectively. Of course, if Netting is permitted, but Closing is not permitted, then the close-out netting provision will not be effective. It is therefore important to ensure Closing of the transaction is permitted as discussed above. Potential Issues As discussed above, in principle, close-out netting provisions are generally enforceable pre-insolvency and are enforceable post insolvency if they are either contained in Eligible Financial Contracts or are not triggered by reason only that the insolvent person is insolvent or that a proposal or notice of a intention to file a proposal, has been filed. However, notwithstanding this general principle, there are special rules applicable upon the insolvency of a party, as a result of which, the enforceability of the insolvent person s contractual obligations, including close-out netting provisions, may be at risk or delayed. The most important of these are the rules relating to fraudulent preference and the enforcement of security. Fraudulent Preference Under section 84(1) of the Bankruptcy and Insolvency Act, an obligation incurred by an insolvent person, within the three months prior to the initial bankruptcy event, with a view to giving a creditor a preference over its other creditors, is deemed fraudulent and void as against the trustee in bankruptcy.

6 This prohibition against fraudulent preferences is applicable to all contractual obligations, including close-out netting provisions. Consequently, the enforceability of close-out netting provisions against an insolvent party may be at risk if they were entered into (a) within the three months prior to the initial bankruptcy event, and (b) with the purpose of giving one creditor a preference over the others. Enforcement of Security Even if the closing-out netting provisions of an agreement are enforceable, under the Bankruptcy and Insolvency Act, there is a risk that enforcement of the security securing such agreement may be delayed if a proposal or notice of intention has been filed in respect of the insolvent person. 2. (b) Is close-out netting defined in addition to set-off under local law? The concept of close-out netting is addressed in the Bankruptcy and Insolvency Act and the Financial Institutions Act, Chap. 79:09. In the Bankruptcy and Insolvency Act, the exact term close-out netting is not defined. However, section 49(10) of Bankruptcy and Insolvency Act defines Net Termination Value as the net amount obtained after setting off mutual obligations between the parties to an eligible financial contract in accordance with its provisions and section 49 (9) (set out in full above at question 2a) explains how the Net Termination Value is used to calculate the obligations of parties. The Financial Institutions Act, Chap. 79:09, at section 92, defines the term Close-out Netting Arrangement in relation to payment systems (such as debit cards) as: (a) an arrangement under which, if a particular event happens, whether through the operation of Netting or otherwise (i) (ii) the obligations of the parties are accelerated so as to be immediately due and expressed as an obligation to pay an amount representing their estimated current value, or are terminated and replaced by an obligation to pay such an amount; and an account is taken of what is due from each party to the other in respect of such obligations, and a net sum equal to the balance of the account is payable by the party from whom the larger amount is due to the other party; or (b)such other type of arrangement as the Minister may by Regulations prescribe;

7 and defines Netting as: an agreed offsetting of transfer orders, positions or obligations by trading partners or Participants resulting in one net claim or one net obligation per Participant or trading partner. While the definitions of Close-Out Netting Arrangement and Netting only apply to payment systems and not OTC derivatives transactions, they nonetheless may provide useful, though not conclusive, guidance as to how these terms will be interpreted by a Trinidad and Tobago Court. The statutory recognition of the close-out netting concept also buttresses the argument that the common law will enforce close-out netting provisions. 2. (c) Does local law allow netting in accordance with the terms of the underlying contract (e.g. the ISDA Master Agreement)? As discussed more fully at questions 2(a) above, Netting (as distinct from Closing) is permitted in accordance with the terms of the underlying contract, whether pre or post insolvency. 2. (d) In the absence of close out provisions, are you aware of any current efforts to pass primary legislation in this regard? We are not aware of any efforts to pass any further primary legislation with regard to close-out netting provisions. B SCOPE 3. If there are netting provisions under local law, do they apply to all types of counterparties, e.g. financial institutions, corporates (commodity trading firms, utilities, manufacturers etc.), SPV, public law entities (municipalities, central bank, development banks etc.)? The law on close-out netting provisions discussed at question 2 above apply to all counterparties, except for Financial Institutions and Insurance Companies in the event of their insolvency. Financial Institutions and Insurance Companies are treated differently from other parties post insolvency as the Bankruptcy and Insolvency Act does not apply to them. In our view, close-out netting provisions will be valid both, pre and post insolvency. However, there may possibly be difficulties, as well as advantages, with the enforceability of such close-out netting provisions. With regard to the difficulties of enforceability, in the event of insolvency, the Central Bank of Trinidad and Tobago has extensive powers to take control of financial

8 institutions or insurance companies, if Central bank is of the opinion that the financial system is danger. These powers may only be exercised in extreme situations. However, should the Central bank elect to exercise its powers, a stay will be instituted such that (a) no creditor shall have any remedy against the institution in any claim and (b) no security agreement that lessens the rights of the institution will have any force or effect, until the stay is lifted. With regard to the advantages with enforceability, as the Bankruptcy and Insolvency Act does not apply to Financial Institutions and Insurance Companies, the risk of delay in the enforceability of security discussed under the heading Potential Issues/Enforceability of Security above at question 2(a), is reduced. Analysis The provisions of the Bankruptcy and Insolvency Act do not apply to Financial Institutions or Insurance Companies. Consequently, agreements with Financial Institutions and Insurance Companies do not benefit from the explicit recognition of close-out netting provisions under section 49(7) in relation to Eligible Financial Contracts nor are they subject to the restrictions on the Closing of transactions under section 49(1) in respect of contracts other than Eligible Financial Contracts. As the Bankruptcy and Insolvency Act is not applicable to Financial Institutions or Insurance Companies, the common law will determine the validity and enforceability of close-out netting provisions with a Financial Institution or Insurance Company. While we are not aware of the issue having been brought before any Court, in our view the common law is likely to determine that, in the event a Financial Institution or an Insurance Company were to become insolvent, close-out netting provisions would be held by a court to be valid. Notwithstanding the validity of the close-out netting provisions, there is a risk that their enforceability may be stayed. Under section 44 D of the Central Bank Act Chap. 79:02, where the Central Bank is of the opinion that (a) the interests of depositors, creditors, policy holders or members of an institution are threatened or (b) that an institution is likely to become unable to meet its obligations or is about to suspend or has suspended payment, the Central Bank may inter alia assume control of and carry on the affairs of the institution. This power to assume control over a Financial Institution or Insurance Company will only be used by the Central Bank in extreme cases. In the event that the Central Bank assumes control of the affairs of the institution, under section 44 E Central Bank Act, upon the publication of the appropriate notice, (a) no creditor shall have any remedy against the institution in respect of any claim and (b) no provision of a security agreement under which the rights of the institution to deal with assets, cease or are reduced upon the winding up, insolvency or default of the institution, has any force. These restrictions remain in place until the Central Bank publishes a notice that it has ceased to be in control of the institution. As a result, if the Central Bank were

9 to assume control of a Financial Institution or Insurance Company, the enforceability of close-out netting provisions with such institution may be delayed indefinitely. We also note that Trinidad and Tobago have passed a new Insurance Act which has not yet been brought into force. The New Insurance Act also contains provisions for the suspension of all actions and the execution of all writs, summonses and other processes against an Insurance Company upon an application to place the Insurance Company under judicial management being made. For completeness sake we mention that pre-insolvency, there is no distinction between Financial Institutions and Insurance Companies on the one hand, and any other entity on the other. Consequently, the same common law rule will apply to all entities preinsolvency that is to say close-out netting provisions will be enforceable. 4. (a) Is the scope of eligible transactions restricted in any way, e.g. to certain products (rates, currencies, equities, credit etc.)? What about commodity products (gas, coal, oil, metals, agricultural etc.) and new products (emissions allowances, freight rates, weather variables etc.)? Is there a different treatment for financially settled transactions as opposed to physically settled ones (i.e. where the underlying product is delivered)? With the exception of the post-insolvency distinction between: (a) Eligible Financial Contracts, in which close-out netting is permitted; and (b) Contracts other than Eligible Financial Contracts, in which close-out netting is only permitted if the Closing of the contract is not by reason only of the counterparties insolvency or the filing of a proposal), the law on close-out Netting is applied equally to all contracts, regardless of the nature of the product or whether the transaction is financially or physically settled. C FOREIGN LAW 5. Are there any issues with foreign law governed contracts (mainly English and New York law) when used for cross-border transactions into your jurisdiction? For example, some countries may restrict the use of foreign law and language documents when it comes to contracting with local public law or state entities. Contracts governed by foreign law are recognised in Trinidad and Tobago and are indeed very common. For completeness sake we mention that the Trinidad and Tobago Courts have the theoretical power to disregard the parties choice of governing law if that choice is: a) Not Bona fide and legal; b) Against public policy; or

10 c) Imposed wholly or mainly for the purpose of evading the operation of the Unfair Contract Terms Act Chap. 82:37. While this theoretical power exists, to our knowledge it has never been used by a Court in Trinidad and Tobago as a basis for disregarding the parties choice of law, and in our view is extremely unlikely to be used where the governing law is English or New York law. 6. (a) Are financial collateral arrangements governed by foreign law recognized under local law? In particular, would title transfer and security interest arrangements (under English and New York law) be enforceable (e.g. ISDA credit support documentation)? Please also note any issues in relation to the collection of collateral and permissibility of such an arrangement in respect of derivative transactions under a standard form of ISDA credit support annex. Financial collateral arrangements governed by foreign law are recognised under Trinidad and Tobago law. Consequently, choosing a foreign law as the governing law of a contract will be no bar to the enforceability of a title transfer or security interest arrangement if an action were to be brought before the Trinidad and Tobago Courts. However, the question of whether contracts governed by foreign law are enforceable is not the only question that must be answered in determining whether the contract will be effective in transferring title or creating a security interest. Rather, the question of whether a contract is effective in transferring title or the creation of a security interest will also depend on (a) the Courts interpretation of the character of the transaction, and (b) compliance with the applicable perfection requirements. Character of the Transaction Once the choice of governing law is upheld (as will almost certainly be the case), a Trinidad and Tobago Court determining the character of a transaction will apply such governing law. Consequently, if a contract, which is governed by a foreign law, is effective in transferring title or in creating a security interest under such foreign law, then a Trinidad and Tobago Court applying such foreign law should come to the same position. In any event, Trinidad and Tobago is a jurisdiction in which, barring extrinsic evidence to the contrary, the character of a transaction is determined by its language. Consequently, if the operative language of a contract effects a transfer of title or a security interest, such provisions are likely to be given effect under Trinidad and Tobago law by a Trinidad and Tobago Court determining the character of the transaction. On the basis of the above ISDA credit support documentation is likely to be effective in transferring title or creating security once the applicable perfection steps are met.

11 Perfection Requirements The perfection steps required to create an effective security interest or title transfer will depend on the nature of the assets and the location or deemed location of the assets. It is imperative therefore, when taking security to seek specific advice on the perfection steps necessary to create an enforceable security interest or title transfer. As an illustration only, some of the most common perfection requirements are (a) the registration of a statement charge in the Companies Registry, (b) the stamping of security instruments at the Board of Inland Revenue, and (c) the registration of a security instrument with the Land Registry. Statement of Charge Under Section 251of the Companies Act, Chap. 81:01 both: a) companies incorporated in Trinidad and Tobago, and b) external companies (regardless of whether they are registered as carrying on business in Trinidad and Tobago or not) must file a statement of charge with the Companies Registry within thirty (30) days of the creation of certain charges as listed below (or any variation or postponement thereof). In the case of companies incorporated in Trinidad and Tobago this requirement applies regardless of whether the security is over assets situated within or outside of Trinidad and Tobago. In the case of external companies, the requirement applies only to property in Trinidad and Tobago. The failure to file a statement of charge will render the charge void as against the liquidator and any creditor of the company. The charges in relation to which a statement of charge must be filed are: (a) (b) (c) (d) (e) a charge for the purpose of securing any issue of debentures; a charge on uncalled share capital of the company; a charge created or evidenced by an instrument which, if executed by an individual, would require registration as a bill of sale; a charge on land, wherever situate, or any interest therein; a charge on book debts of the company;

12 (f) (g) (h) (i) a floating charge on the undertaking or property of the company; a charge on a ship or any share in a ship; a charge on goodwill, on a patent or licence under a patent, on a trademark or on a copyright or a licence under a copyright; and such other charges as the Minister may, by Order, specify. Stamping of Security Instruments Where a security interest is granted by a person within Trinidad and Tobago over assets situated in Trinidad and Tobago through a security instrument, such security instrument must be (a) stamped with stamp duty within 60 days of execution where the instrument was signed within Trinidad and Tobago or, (b) if executed outside of Trinidad and Tobago, must be stamped with stamp duty within 60 days of the instrument being brought into Trinidad and Tobago. Stamp duty on most security instruments is payable at the rate of TT$4.00 per thousand on the total amount secured by the instrument. Land Registry In order to (a) transfer the legal title in, or (b) create a legal mortgage over, real property situated in Trinidad and Tobago, it is necessary that a deed be used to effect, the transaction and for that deed to registered at the Land Registry of Trinidad and Tobago. 6. (b) Would this apply to both local collateral and to offshore collateral? The location, or the deemed location, of collateral may affect the perfection requirements necessary to create good security, as, to some extent, the applicable law determining whether there has been perfection is governed by the Lex situs, that is the law of the country that the movable is situated at the time of transfer. However, the location of the collateral is not determinative of which perfection steps are necessary to create good security: there are some perfection steps that will apply regardless of where the collateral is located for example the requirement to file a statement of charge, there are some perfections steps that will depend on the nature of the collateral and there are some perfection steps which will be prudent from a practical point of view regardless of what is legally required. It is imperative therefore to seek advice on the applicable perfection steps to create good security, regardless whether the collateral is located offshore.

13 6. (c) Are there any transfer restrictions of local currency or foreign (like USD) or other forms of collateral (like securities, bonds or shares) out of the country; may the counterparty hold these in an account outside of the country? Subject to the minor restrictions under the Exchange Control Act, Chap. 79:50 discussed below, there are no restrictions on transferring local currency, foreign currency, securities, bonds or shares out of Trinidad and Tobago. Consequently, the counterparty may hold these in an account outside of Trinidad and Tobago. Section 23(1) of the Exchange Control Act prohibits the exportation of gold and notes which are legal tender (that is physical currency) without the permission of the Central Bank. This prohibition relates only to the exportation of physical gold and physical currency and does not restrict the electronic transfer of gold and currency and is therefore of limited practical effect. For completeness sake we mention that Financial Institutions are subject to limits on credit exposures under section 42 of the Financial Institutions Act. These limits on credit exposures mean that, while there are no restrictions on the transfer of funds, there is a limit as to how much funds the Financial Institution may hold in an account with a third party. Of course, the amount of this limit will vary from one Financial Institution to another and will depend on each particular Financial Institution s financial ratios. 7. Is there any observation on the local regime for foreign (e.g. English, New York) judgments and foreign arbitral awards? ENFORCEMENT OF FOREIGN JUDGMENTS Foreign judgments may be enforced by the Courts of Trinidad & Tobago through one of three avenues: a) by way of registration under the Judgments Extension Act, Chap. 5:02; b) by way of common law, i.e. by instituting an action in Trinidad & Tobago on the foreign judgment; or c) by way of a fresh action in Trinidad & Tobago based on the original cause of action. Judgments Extension The Judgments Extension Act provides a system of registration to facilitate the direct enforcement in Trinidad & Tobago of United Kingdom money judgments as well money judgment from specified Commonwealth countries which have similar reciprocal provisions. The current list of Commonwealth countries covered by the Judgments Extension Act is as follows:

14 Commonwealth countries within the West Indies: Bahamas Barbados Grenada Guyana Jamaica Leeward Islands St. Lucia St. Vincent Commonwealth countries Outside the West Indies: Australia Cocos (Keeling) Islands and Christmas Island Norfolk Island Papua and New Guinea India Nigeria An application to register such judgments should be made within twelve (12) months after the date of the judgment, although the High Court of Trinidad & Tobago has the power to extend this time. According to Section 4 of the Judgments Extension Act, these judgments will not be registered where: the original court acted without jurisdiction; the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court; the judgment debtor, being the defendant in the proceedings, was not duly served with the process of the original court and did not appear, notwithstanding that she was ordinarily resident or was carrying on business within the jurisdiction of that court or agreed to submit to the jurisdiction of that court; the judgment was obtained by fraud; the judgment debtor satisfies the registering court either that an appeal is pending, or that she is entitled and intends to appeal against the judgment; or the judgment was in respect of a cause of action which, for reasons of public policy or for some other similar reason, could not have been entertained by the registering court. Once a judgment is registered under the Judgments Extension Act, as at its date of registration, it is of the same force and effect as a judgment originally obtained in Trinidad & Tobago. The reasonable costs of and incidental to the registration of the foreign judgment are recoverable as if such costs were payable under the judgment.

15 Common law action on foreign judgment A foreign judgment that emanates from a jurisdiction which does not fall within the schedule of countries listed in the Judgments Extension Act will be enforceable in Trinidad & Tobago under the common law once the following criteria are satisfied: The courts of Trinidad & Tobago recognise the jurisdictional competence of the foreign Court; the foreign judgment is for a definite sum of money; the foreign judgment is final and conclusive; and there is no defense to the recognition of the foreign judgment. Common law fresh action on original cause of action It may be possible to bring a fresh action on the original cause of action where (a) the time for instituting such an action is not statute barred, and (b) the cause of action is one which is recognised as actionable, according to the applicable laws of Trinidad and Tobago. If a fresh action is brought in Trinidad & Tobago based on the original cause of action, the Claimant has several options open to her for a quick resolution: where the Defendant does not enter an Appearance to the action in Trinidad & Tobago, the Claimant may enter judgment in default of Appearance at once; where the Defendant enters an Appearance, the Claimant may apply for summary judgment on the basis that the Defendant has no defense to the claim. However, for the Claimant to succeed on an application for summary judgment, she must be in a position to prove that there is no dispute as to the facts which might give rise to a defense; where the Claimant s application for summary judgment is unsuccessful, and the Defendant is granted leave to issue a Defense in the action, the Claimant may obtain a judgment in default of Defense if the Defendant does not file her Defense within the stipulated time frame. In the event that, the above options are not open to the Claimant, the action will be set down for trial. In general, it takes about 2-3 years for a trial to be heard, though the court has the discretion to fast-track a trial if adequate reasons are presented to justify this course of action. ENFORCEMENT OF FOREIGN ARBITRAL AWARDS IN TRINIDAD AND TOBAGO An arbitral award may be enforced: under the Arbitration (Foreign Arbitral Awards) Act, Chap. 5:30; by the summary procedure provided under the Arbitration Act, Chap. 5:01, or by bringing an action on the award.

16 Arbitration (Foreign Arbitral Awards) Act The Arbitration (Foreign Arbitral Awards) Act gives effect in Trinidad & Tobago to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted by the United Nations Conference on International Commercial Arbitration on 10 June 1958, commonly known as the New York Convention. A country which has ratified the New York Convention agrees to enforce foreign arbitral awards subject to the proviso that the arbitration must have taken place in another country which is a party to the Convention. A convention award is enforceable in Trinidad and Tobago either (a) by action or (b) in the same manner as a judgment of the Trinidad and Tobago High Court (once leave of the Court has been obtained). The party seeking to enforce the award must obtain: the duly authenticated original award or a duly certified copy of it; the original arbitration agreement or a duly certified copy of it; and a translation of the award or agreement certified by an official or sworn translator or by a diplomatic or consular agent, if the award or agreement is in a language other than English. In addition, it is useful to obtain a certificate issued under the hand of the Minister of Foreign Affairs confirming that the country in which the award was a party to the New York Convention at the relevant time. Enforcement of an award may not be refused unless the person against whom it is invoked proves: that a party to the arbitration agreement is under some incapacity under the law applicable to that party; that the arbitration agreement was not valid under the law to which the parties subjected it or, failing any indication thereon, under the law of the country where the award was made; that she was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present her case; that the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration or contains decisions on matters beyond the scope of the submission to arbitration. (N.B. An award that contains decisions on matters not submitted to arbitration may be enforced to the extent that it contains decisions on matters submitted to arbitration that can be separated from those matters not so submitted); that the composition of the arbitral authority, or the arbitral procedure, was not in accordance with the agreement of the parties or, failing that, with the law of the country where the arbitration took place; or

17 that the award has not yet become binding on the parties or has been set aside or suspended by a competent authority in the country in which, or under the law of which, the award was made. Enforcement of an award may also be refused if: the award is in respect of a matter that is not capable of settlement by arbitration; or it would be contrary to public policy to enforce the award. Summary Procedure Provided Under the Arbitration Act The Arbitration Act provides that an award or an arbitration agreement may, by leave of the Court, be enforced in the same manner as a judgment or order of the Trinidad and Tobago High Court with the same effect, and in such a case, judgment may be entered in terms of the award. This summary procedure is not available, however: If the arbitration agreement is not in writing and is therefore not within the Arbitration Act; Where the award is declaratory and therefore does not constitute an award for the payment of a sum of money; or If the award is not in a form in which it can be entered as a judgment e.g. it requires some calculation to be made before the amount payable is known. Leave can be given, however, to enforce an arbitral award which orders payment of an amount expressed in a foreign currency. The defenses available against the enforcement of an award under the summary procedure of the Arbitration Act may include: That there was no valid submission, so that the entire arbitration was a nullity; That the arbitrator was disqualified, that she did not possess some qualification that she was required by the arbitration agreement to possess, e.g. membership of a specified association, or That the award, though valid when made, has ceased to be binding because it has subsequently been discharged, e.g. by a subsequent agreement between the parties. Action on the award In an action on an arbitration award, the Claimant should plead, and be prepared to prove: The arbitration agreement; The reference to the arbitrator of a dispute which was within the terms of that agreement; That the arbitrator was duly qualified and duly appointed; and The award itself.

18 D OTHER If these factors cannot be proved, the party seeking to enforce the award may find that a Defendant can rely on the defenses outlined above. It should also be borne in mind that an action to enforce an arbitral award may take between 2 3 years to be heard even if sufficient reasons are put forward to fast-track the action. 8. Does local law/language standard documentation (sometimes referred to as local ISDA agreement ) exist or do market participants use bespoke documentation for domestic transactions (as opposed to cross-border transactions)? Does a local repo document or GMRA (which is the global MA for securities repurchase agreements) annex exist? There is no local law standard documentation equivalent to a local ISDA agreement ; rather market participants typically rely on bespoke documentation. The Trinidad and Tobago Securities and Exchange Commission has developed a draft repurchase transaction agreement for the benefit of members of the market who wish to engage in Repo transactions. It may be found at This draft repurchase transaction agreement was developed in 2010 and is somewhat outdated. 9. Are there any efforts underway to enact legislation on bank resolution? We are not aware of any efforts to enact legislation on bank resolution. Yours faithfully, M. HAMEL-SMITH & CO. By Luke Hamel-Smith Transactional Group