Confidentiality
Arbitral awards
Correction and interpretation of awards
Challenge and appeals
Costs of arbitral proceedings
Recognition and enforcement
Comment
This article is last part of a three-part series on arbitration in the Cayman Islands and covers confidentiality, arbitral awards and other main aspects of arbitration proceedings. For part one of the series please see "Guide to Cayman Islands arbitration" and for part two please see "Guide to Cayman Islands arbitration: conduct of proceedings".
The Arbitration Act imposes a duty of confidentiality on the parties, and the proceedings are conducted in private.(1) There is no public record of arbitral proceedings, no public statements of the parties' respective positions, nor any public hearings or reported judgments. The definition of what constitutes "confidential information" is broad, and it includes:
- all documents and evidence produced for the purposes of the proceedings;
- notes or transcripts of the proceedings; and
- rulings and awards made by the arbitral tribunal or information relating to such findings.
Disclosure of confidential information is only permitted if authorised by the parties or in certain limited public interest exceptions, and the parties and the tribunal must take reasonable steps to prevent the unauthorised disclosure of information by third parties.
The Grand Court is also willing, where appropriate, to address the parties' confidentiality concerns – for example, where an application is made to the Court to enforce an award. This can include the sealing of specific documents on the Court files.
The Arbitration Act does not limit the types of awards that can be made and, subject to any contrary agreement by the parties as to the powers exercisable by the arbitral tribunal in relation to remedies, it may award any remedy or relief that could have been ordered by the Court if the dispute had been the subject of civil proceedings. It may also make interim awards. An award is final and binding on the parties and may be relied on by any of the parties by way of defence, set-off or otherwise in any proceedings in any court. An award is capable, with the permission of the Grand Court, of being enforced in the same way as a judgment or order of the Court.
A sum directed to be paid by an award shall, unless the award otherwise directs, carry interest from the date of the award and at the same rate as a judgment debt. The prescribed judgment rate changes from time to time and varies depending on the currency in which judgment is given.
Correction and interpretation of awards
Parties can request, within 30 days of the receipt of an award (or such other period as agreed by the parties), that an arbitral tribunal correct any clerical, computational or typographical error in an award, which it is empowered to do. Clarification can also be sought from the arbitral tribunal of a specific point or part of the award provided that all parties agree to such an interpretation being given.
The Arbitration Act substantially limits the circumstances in which it is possible to appeal an arbitral award and the parties are able to opt out of such an appeal.(2) Leave to appeal to the Grand Court on a question of law is available where the Grand Court determines that the question is one that the arbitral tribunal was asked to determine and the issue will substantially affect the rights of one of the arbitral parties. In addition, the findings of fact made in the award must be obviously wrong or the question be found to be one of general public importance and the arbitral tribunal's decision is open to serious doubt. The Grand Court is left with a residual discretion not to grant leave to appeal where it considers that it is not just and proper in all the circumstances for the court to determine the question. A further appeal to the Cayman Islands' Court of Appeal is possible, but leave to do so must be granted by either the Grand Court or the Court of Appeal.
The Grand Court may set aside an arbitral award on public policy grounds or if it is proved to the court's satisfaction that:(3)
- a party to the arbitration agreement was under an incapacity or placed under duress to enter into an arbitration agreement;
- the arbitration agreement is not valid under the law to which the parties have subjected it;
- the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitration proceedings or was otherwise unable to present his case;
- 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;(4)
- the composition of the arbitral tribunal or the arbitral procedure is not in accordance with the agreement of the parties or is contrary to the provisions of the Arbitration Act;
- the making of the award was induced or affected by fraud, corruption or misconduct on the part of an arbitrator; or
- a breach of the rules of natural justice occurred in connection with the making of the award by which the rights of any party have been prejudiced.
It is important to note that an applicant party seeking to appeal or to set aside an arbitral award may only apply to do so if all other avenues to seek redress within the arbitral process are first exhausted. On appeal or an application to set aside an award, the Grand Court can confirm, vary or set aside the award, and it may remit the award to the arbitral tribunal (in whole or in part) for reconsideration in light of the court's determination. Should a party seek that an arbitration award be set aside, the Grand Court may also require that the sum of the award be paid into Court and that the party making the application provide security for costs.
The flexibility of the arbitral process affords the parties considerable scope to limit what traditionally have been the most expensive areas of court litigation. Therefore, for example, the parties may substantially restrict the extent of the discovery of documents, to limit the nature and extent of the factual or expert evidence, or even decide that an oral hearing should be dispensed with altogether and the dispute determined on the papers. As is noted above, the tribunal is obliged under the Arbitration Act to conduct the arbitration without unnecessary delay and without incurring unnecessary expense, whilst allowing each party a reasonable opportunity of presenting its case.
The arbitration agreement can provide for the allocation of costs incurred by the parties. In the absence of any agreement to the contrary, the arbitral tribunal has a wide discretion in awarding costs between the parties. If no provision for costs is made in an award, any party can apply to the arbitrator for a costs order and must be given a reasonable opportunity to make submissions in this regard before the arbitral tribunal directs the payment of costs. In practice, awards as to costs tend to follow the traditional costs rules for litigation and costs will normally follow the event (ie, the unsuccessful party will normally be required to pay a reasonable proportion of the successful party's costs).
The Cayman Islands (as an overseas territory of the United Kingdom) is a party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), which has widespread applicability in the majority of jurisdictions across the world, thus making it relatively straightforward to enforce any arbitral award obtained here elsewhere (and vice versa to enforce a foreign arbitral award in the Cayman Islands by reason of the Enforcement Law, which gives effect to the provisions of the New York Convention.
Importantly, the Arbitration Act goes even further, by providing that an arbitral award irrespective of the country in which it was made shall be recognised as binding and, upon application to the Court, will be enforced subject to the provisions of the Enforcement Law, regardless of whether it is a New York Convention award or not. Therefore, arbitral awards from any foreign state (not just signatories to the New York Convention) may be easily and quickly enforced in the Cayman Islands.
In enforcing any arbitral award, the Court will interpret it according to its plain and obvious meaning and will not seek to improve the award.(5)
In August 2020, the Cayman Islands Court of Appeal handed down an important decision in VRG Linhas Aereas SA v Matlin Patterson Global Opportunities Partners (Cayman) II LP(6), which deals with difficult issues relating to the enforcement of foreign arbitral awards that are the subject of robust challenge before the courts of supervisory jurisdiction. The Court of Appeal, overturning an earlier Grand Court decision, permitted enforcement of an International Chamber of Commerce arbitration award in favour of a Brazilian airline. The Court of Appeal held that the award debtors and respondents to the appeal were estopped from challenging enforcement of the award, as all the various challenges had already been raised and dismissed before the Brazilian courts.
In terms of the procedure itself, an application for leave to enforce an arbitral award is straightforward and inexpensive. Once leave is obtained from the Court, judgment will be entered in the terms of the award and all common enforcement mechanisms will then be available in the usual way, including garnishee orders, the appointment of receivers by equitable execution and charging orders.
Arbitration is increasingly being recognised as an effective alternative to court proceedings, to resolve international commercial disputes. While arbitrations are not going to be the appropriate mechanism for determining every dispute, the benefits of arbitration, including the ability to tailor proceedings to meet the specific circumstances of the matters in dispute in a cost effective and flexible manner, confidentiality and the ease of enforcement of arbitral awards, are obviously attractive to potential litigants. The Cayman Islands has a modern, pro-arbitration framework, which, together with its status as a major global financial centre and neutral geographical location, puts it in good stead to establish itself as a leading international arbitration hub in the region. The anticipated creation of the Cayman International Arbitration Centre, and the creation of the new Cayman Chapter of the Chartered Institute of Arbitrators will also likely act as a catalyst to increase the number of arbitrations conducted in the Cayman Islands.
For further information on this topic please contact Jennifer Fox, William Jones or Anna Snead at Ogier's Grand Cayman office by telephone (+1 345 949 9876) or email ([email protected], [email protected] or [email protected]). The Ogier website can be accessed at www.ogier.com.
Endnotes
(1) Section 81 of the Arbitration Act.
(2) Section 76 of the Arbitration Act.
(3) Section 75 of the Arbitration Act.
(4) In Appalachian, Foster J derived assistance from the English Case of Peterson [2003] EWHC 2298 (QB), where Tomlinson J considered the similar English statutory provision and interpreted this ground to mean: "the whole question being whether the arbitration agreement is, on its true construction or in the circumstances, apt to embrace those claims."
(5) MNC Media Inv. Ltd v Ang (CA), 2016 (1) CILR N [1].
(6) VRG Linhas Aereas SA v Matlin Patterson Global Opportunities Partners (Cayman) II LP, CICA, unreported, 11 August 2020.