What are the formal requirements for an enforceable arbitration agreement?
Generally speaking, an enforceable agreement must be in writing signed by the parties or contained in a series of communications that provide a record of the agreement. Arbitration agreements can also arise if pleaded in a court document and not denied by the opposing party. Further, if parties agree orally by reference to terms that are in writing and that incorporate an arbitration clause, that arbitration clause is deemed to be an agreement in writing.Arbitral procedure
Does the domestic law contain substantive requirements for the procedure to be followed?
The Arbitration Law provides in general terms that the tribunal shall act fairly and impartially, allow each party a reasonable opportunity to present their case, conduct the arbitration without unnecessary delay and conduct the arbitration without incurring unnecessary expense. It also provides for majority decisions in tribunals with more than one member if the parties so agree. Other than those general guidelines, the parties are largely free to agree the procedure and rules of evidence and law to be adopted by the tribunal. If they do not agree, the Arbitration Law contains a series of default procedures and powers that the tribunal must adopt.Award
When and in what form must the award be delivered?
Unless otherwise agreed by the parties, the tribunal may make more than one award at different points in time during the proceedings. If it makes multiple awards, the tribunal must specify in the award the issue, claim or part of a claim that is the subject matter of a particular award.
Awards are required to be in writing and signed - in the case of a sole arbitrator, by the arbitrator him or herself or, in the case of two or more arbitrators, by all the arbitrators or the majority of the arbitrators if the reason for any omitted signature is stated. The award must give reasons for the decision, unless the parties have agreed that reasons are not necessary or the award is an award on agreed terms. The date of the award and the seat of the arbitration must be stated in the award and the award will be deemed to have been made at the place of the arbitration. After the award is made, a copy of the award signed by the arbitrators must be delivered to each party. At the request of any party to an arbitration agreement, the appointing authority may certify an original award registered with it, certify a copy of any relevant original arbitration agreement or arrange for the translation and sworn certification of any award or agreement not stated in the English language.Appeal
On what grounds can an award be appealed to the court?
A party may, with the permission of the Court, appeal to the Court on a question of law arising out of an award. The parties may contract out of the right to appeal if they wish. The Arbitration Law sets out a number of factors to be considered by the Court when granting permission to appeal and the Court may not grant permission unless it is satisfied that:
- the determination of the question will substantially affect the rights of one or more of the parties;
- the question is one that the arbitral tribunal was asked to determine; and
- on the basis of the findings of fact in the award the decision of the arbitral tribunal on the question is obviously wrong or the question is one of general public importance and the decision of the arbitral tribunal is at least open to serious doubt and, despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the Court to determine the question.
The order made on such an application is appealable only with the further leave of the Court. A further appeal to the Court of Appeal is possible with the leave of the Court of Appeal, but the Court of Appeal may only grant leave if it is satisfied that the point of law concerned is one of general importance, or that there is some other special reason that it should be considered by the Court of Appeal. Final appeal rests with the Privy Council.Enforcement
What procedures exist for enforcement of foreign and domestic awards?
A domestic award made by an arbitral tribunal pursuant to an arbitration agreement may, with leave of the Court, be enforced in the same manner as a judgment or order of the Court to the same effect. Where leave is given, judgment may be entered in terms of the award. Leave to enforce an award shall not be given where, or to the extent that, the person against whom it is sought to be enforced shows that the arbitral tribunal lacked jurisdiction to make the award. In relation to foreign arbitral awards, the provisions of the Foreign Arbitral Awards Enforcement Law, 1997 enact the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards into Cayman Islands law. An action on the award may also be commenced by writ. There have been no recent changes in enforcement procedures.