Cayman Islands: The Dispute Resolution Review, 9th Edition: Cayman Islands

Last Updated: 2 August 2017
Article by Aristos Galatopoulos, Luke Stockdale and Paul Smith

Most Read Contributor in Cayman Islands, October 2017

I INTRODUCTION TO THE DISPUTE RESOLUTION FRAMEWORK

The Cayman Islands is a British overseas territory with an English-style common law legal system that comprises statute law and binding case precedents. English case law is highly persuasive in the Cayman Islands in the absence of any Cayman Islands authority. Decisions of other Commonwealth jurisdictions are also persuasive.

The Grand Court of the Cayman Islands (the Grand Court) is the superior court of record of first instance. The caseload of the Grand Court is divided among five divisions.

Commercially significant litigation in the financial services sector is handled by the financial services division (FSD). Every proceeding in the FSD is assigned to one of seven highly experienced commercial judges. Hearings by telephone or video link are permitted and are used regularly.

Appeals from the Grand Court are to the Cayman Islands Court of Appeal (CICA), which usually sits three times each year. Subject to certain restrictions, there is an automatic right of appeal to the CICA from any final decision of the Grand Court. In general, leave of the Grand Court or the CICA is required to appeal an interlocutory decision to the CICA. A further appeal may then lie from the CICA to the Privy Council in London.

II THE YEAR IN REVIEW

In 2016, the Cayman Islands courts dealt with a number of significant commercial disputes and insolvency cases. Summarised below are decisions that will be of interest to practitioners and those in the financial services industry.

i In the matter of SPhinX Group (CICA, 2 February 2016)

The SPhinX Group insolvency has produced another significant judicial decision, this time in the context of the interplay between arbitration and the Court's winding-up jurisdiction.2 The CICA followed recent English authority confirming the primacy of arbitration agreements, leaving some scope to argue that certain issues remain non-arbitrable.

In 2007, the liquidators of the SPhinX Group engaged US attorneys on a contingency fee basis to pursue litigation against 60 defendants in New York. The engagement agreement contained a New York arbitration clause. The liquidators subsequently proposed a scheme of arrangement and the US attorneys threatened to bring a claim against the SPhinX Group in relation to their fees, on the basis that the scheme would undermine the US litigation. Ultimately US$50 million was added to the reserves of the scheme, although not specifically designated for a claim by the US attorneys.

In 2014, certain stakeholders in the liquidation sought orders from the Grand Court that the liquidators be directed not to retain any reserves for the purpose of satisfying a claim by the US attorneys. The US attorneys sought a stay of that application on the basis of the arbitration clause in the engagement agreement.

The stakeholders argued that the issues raised by their application involved the exercise of a power vested in the liquidators as officers of the Court, and was therefore not arbitrable.

That argument was rejected by the Grand Court at first instance. The Court considered that the setting of the reserve was entirely dependent on whether or not the US attorneys were entitled to remuneration under the engagement agreement, and that the question was subject to the arbitration clause in the agreement. While recognising that matters falling within the exclusive jurisdiction of the Court cannot be referred to arbitration, the Court held that that the stakeholders could not bypass the agreed dispute resolution process in the present circumstances. The stakeholders appealed.

The CICA dismissed the appeal. It agreed with the Grand Court's analysis and added that even though the enforcement of an arbitration agreement in a liquidation context could delay the liquidation and add to the expense of administering the estate, those cannot be reasons for failing to protect a contractual right to arbitration.

ii Ennismore Fund Management Limited v. Fenris Consulting Limited (Privy Council, 19 April 2016)

This case concerned the construction of an agreement between an investment manager and one of its consultants. The Privy Council confirmed that the relevant principles of contractual interpretation applicable in the Cayman Islands are the same as those recently set out by the UK Supreme Court in Arnold v. Britton [2015] UKSC 36. Most relevantly in this case, the Privy Council reiterated that oral evidence of the subjective intentions or understanding of contracting parties is not admissible when construing contractual agreements. Accordingly, it remains the case as a matter of Cayman Islands law that parties to a commercial agreement will be held to the language of a written contact where that language is clear and the Court will not impute an alternative meaning that contradicts the language of the contract.

iii Pearson (Herald Fund) v. Primeo Fund (CICA, 19 June 2016)

The CICA has confirmed that where shares in a Cayman Islands company have been redeemed in accordance with the company's articles of association but the redemption proceeds are unpaid by the date the company enters liquidation, the unpaid redeemers are creditors of the company whose claims rank behind those of ordinary unsecured creditors but ahead of unredeemed investors, and that Section 37(7)(a) of the Companies Law did not operate to unwind the effect of the redemptions.

Herald Fund SPC (Herald) had invested substantially all of its assets in Bernard L Madoff Investment Securities LLC, the vehicle through which Mr Madoff operated his well-known Ponzi scheme. Primeo Fund (Primeo) had, in turn, invested in Herald and was therefore an indirect victim of the Madoff fraud.

Various investors, including Primeo, had submitted redemption requests to Herald with a redemption date of 1 December 2008 (the December Redeemers). Pursuant to the terms of Herald's articles, those redemption requests had crystallised and the investors had been redeemed on 1 December 2008. However, following the discovery of the Madoff fraud on 11 December 2008, Herald suspended the payment of redemption proceeds on 24 December 2008 and so the December Redeemers had not been paid their redemption proceeds when Herald went into liquidation in 2013.

The issue before the Court was whether the December Redeemers' position differed from Herald's shareholders who had not redeemed their shares prior to the Madoff fraud being exposed and Herald suspending the right to redeem its shares. The answer centred on the interpretation of Section 37(7)(a) of the Companies Law and the extent to which that provision had the effect of unwinding redemptions effected prior to the commencement of the liquidation.

The CICA held that Section 37(7)(a) does not apply where, at the commencement of the liquidation, the shares in question have in fact been redeemed in accordance with the articles of association. Accordingly, Section 37(7)(a) did not apply to the December Redeemers.

The Court held that the December Redeemers were creditors with a provable claim in the liquidation for the amount of their redemption proceeds. The decision provides welcome guidance on the interpretation of Section 37(7)(a) of the Companies Law, and emphasises the need for, and importance of, commercial certainty for investment funds and their redeeming investors.

iv Skandinaviska Enskilda Banken AB v. Conway and Walker (CICA, 18 November 2016)

This case is a rare example of a successful Cayman Islands clawback claim. The CICA held that certain redemption payments made shortly before the collapse of Weavering Macro Fixed Income Fund (the Macro Fund) constituted voidable preferences that had to be repaid.

Because of the global financial crisis that reached a critical stage in September 2008, a significant number of the Macro Fund's investors had redeemed their shares. A substantial proportion of the Macro Fund's assets were fictitious and so the Macro Fund would never have been able to meet those redemption requests. However, rather than suspending redemptions, or otherwise taking steps to cease the Macro Fund's business, it implemented a policy for the payment of redemptions to those investors who had redeemed their shares with effect from 1 December 2008.

SEB, acting as a custodian on behalf of various investors, received a total of US$8.2 million in redemption proceeds. The Macro Fund's liquidators sought to claw back those payments on the basis that they were voidable preferences under Section 145 of the Companies Law. Pursuant to that provision, payments made by a company in favour of a creditor when the company is unable to pay its debts, with a view to giving that creditor a preference, are invalid if made within six months before the commencement of a liquidation.

One of SEB's defences was that the Macro Fund was not insolvent at the time it made certain of the redemption payments to SEB during December 2008. As the Macro Fund was permitted to make redemption payments up to 30 days after 1 December 2008, SEB argued that the redemption debts only became payable at the end of the period, such that the Macro Fund was not insolvent on a strict cash-flow basis before the end of the period. The CICA held that the cash-flow test of insolvency applicable as a matter of Cayman Islands law is not strictly confined to consideration of debts that are immediately due and payable, but also permits consideration of debts that will become due in the reasonably near future.

SEB's other major defence was that the Macro Fund did not have the requisite dominant intention to prefer SEB when making the redemption payments. The CICA confirmed that the Court could draw the inference of an intention to prefer from all the facts of the case, provided that it could be inferred from the evidence that the principal or dominant intention of the party making the payment was to give one or more creditors a preference over the other creditors. However, the CICA rejected the submission that an intention to prefer must carry a 'taint of dishonesty'.

In this case, the CICA held that the Fund's policy of paying 25 per cent of all December redemptions initially and the balance later was designed to allow certain creditors to be paid before others and, when combined with the fact that the Macro Fund had no prospect of paying the January and February 2009 redeemers, this was sufficient to justify the inference of a dominant intention to prefer.

III COURT PROCEDURE

i Overview of court procedure

General litigation in the Grand Court is governed by the Grand Court Rules (GCR). The FSD has also issued an FSD Guide, which sets out timing and procedures to be followed in the FSD.3

Winding-up proceedings are governed by the Companies Winding Up Rules, 2008 (as amended) (CWR).

The GCR and CWR are each overseen by procedural rules committees comprising judges of the Grand Court and experienced practitioners.

ii Procedures and time frames

Proceedings under the GCR

In general, litigation is commenced by way of a writ endorsed with a statement of claim setting out the nature of the plaintiff's claim and the relief sought. Once issued, the writ must be personally served on the defendant.4 For service on defendants outside the jurisdiction, leave of the court is required (see Section III.v, infra). If a defendant intends to defend the action, it must file an acknowledgement of service and then file a defence. The plaintiff can then file a reply to the defence. Counterclaims may also be filed within the same proceeding. The GCR set out default provisions that apply to the timing of proceedings, giving parties 14 days to respond at each new stage of the proceeding. Lists of discoverable documents must be exchanged 14 days after pleadings close (see Section V.ii, infra).

These default provisions are usually modified by consent of the parties or the direction of the court. In the FSD, proceedings are assigned to a particular FSD judge, who is responsible for case management and determining all interlocutory issues, as well as presiding at the trial or final hearing. Case management conferences (CMCs) are normally held at an early stage to set out the timetable for the proceedings, as agreed between the parties or as determined by the court. CMCs are held periodically throughout the proceedings to revise the timetable and deal with other interlocutory matters as necessary.

As much of the commercial litigation before the Grand Court is complex, cross-border and involves heavy interlocutory applications, cases can take up to two years to come to trial.

Proceedings under the CWR

Winding-up proceedings are commenced by way of a petition supported by affidavit evidence. Generally, winding-up proceedings are decided on affidavit evidence without discovery of documents. A creditor's winding-up petition will typically be heard within six to eight weeks of filing.

Interlocutory hearings

Interlocutory applications are made by summons and typically proceed on affidavit evidence only. The summons must be served on the other party not less than four clear business days before the hearing date. Normally, a summons will be listed for hearing within two to six weeks depending on the nature and length of the application and court availability.

Interim applications

Interim relief may be available to a plaintiff pending trial. Urgent injunction applications are often heard ex parte in the first instance and can be heard on short notice. At the ex parte hearing, the court can grant an injunction until an inter partes hearing shortly afterwards. At the inter partes hearing, the court can grant an injunction pending trial. The court will usually require the applicant to provide a cross-undertaking as to damages to protect the defendant in the event that at trial it is established that the injunction should not have been granted. In some circumstances, the court will require fortification of the undertaking by payment of a sum of money into court.

The following types of relief are available:

  1. an injunction preventing a party from carrying out, or requiring a party to carry out, certain actions;
  2. a freezing (Mareva) injunction to restrain a party from disposing of or dealing with certain assets;5
  3. an Anton Piller order to require the defendant to permit persons to enter his or her premises, search for documents or other moveable property;
  4. disclosure (Norwich Pharmacal and Bankers Trust) orders (see Section III.vii, infra); and
  5. an order under GCR Order 30 appointing a receiver in relation to particular property.

iii Class actions

Where numerous parties have the same interest in any proceedings, the Grand Court may grant permission for the proceedings to be continued as a representative action. Any judgment obtained in such proceedings is binding on all the parties who are represented. However, the judgment cannot be enforced against them without further leave of the Grand Court.

iv Representation in proceedings

The legal profession in the Cayman Islands is fused. Attorneys liaise directly with their clients on a day-to-day basis and also appear as advocates in court. Barristers from overseas may be engaged to appear as advocates but must first be admitted by the Grand Court to practise in the Cayman Islands on a limited basis for the duration of the trial or application.6

v Service out of the jurisdiction

Leave of the court is required to serve any originating process on a party outside the jurisdiction. GCR Order 11 sets out a list of the types of claim for which leave may be given. An applicant for leave must show that:

  1. there is a good arguable case that the claim has an appropriate nexus to the Cayman Islands under one or more of the heads set out at GCR O.11 r1;
  2. there is a serious case to be tried on the merits; and
  3. it is proper in the exercise of the court's discretion to grant leave and particularly that the Cayman Islands are the appropriate forum.

vi Enforcement of foreign judgments

Foreign money judgments may be enforced by action at common law. Certain Australian money judgments can be enforced by way of a statutory registration procedure.

A common law enforcement action is commenced by the issue of a writ setting out the facts of the original cause of action, the foreign court's jurisdiction over the debtor, particulars of the judgment and confirmation that money is owed on the judgment.

At the hearing of the application, the applicant must demonstrate that the judgment satisfies the criteria for enforcement, which include:

  1. it was made by a court of competent jurisdiction;
  2. it is final and conclusive; and
  3. it is not impeachable on the grounds of fraud or contrary to public policy.7

vii Assistance to foreign courts

Evidence

Pursuant to the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978, if requested by a foreign court or tribunal, the Grand Court may make an order to allow evidence to be obtained in the Cayman Islands in support of foreign proceedings. The Grand Court has the power to make any appropriate order to obtain the evidence, including the examination of witnesses orally or in writing and the production of documents.

The Grand Court can grant such assistance where it is satisfied that the requesting court is exercising jurisdiction in a country outside the Cayman Islands and the evidence is to be obtained for the purposes of civil proceedings before that court.

Orders to produce information

Under the Norwich Pharmacal8 jurisdiction, the court may order a person, whether or not he or she is a party to the substantive proceedings, to disclose information about wrongdoers and the location of their assets. Such an order can be granted in support of foreign proceedings on an application by a party without the need for any letter of request from the foreign court. The applicant must show that:

  1. a wrong has been done to the applicant by a wrongdoer and the applicant intends to assert his or her legal rights;
  2. an order is necessary to assist the applicant in achieving justice and there is no other practical source of information available; and
  3. the respondent is a person who was involved in the wrongdoing (even innocently) and is able to provide the information necessary to enable the wrongdoer to be identified.

A related form of relief, known as a Bankers Trust9 order, is also available. Such an order requires a person involved in the disposal of assets to disclose information concerning the assets where there is strong evidence that fraud has occurred and there is an urgent need to identify the whereabouts of the assets.

Foreign insolvency proceedings

Part XVII of the Companies Law provides that where a foreign legal entity is subject to foreign bankruptcy proceedings in its country of incorporation, on the application of the foreign insolvency representative, the Grand Court may make orders:

  1. recognising the right of the foreign representative to act in the Cayman Islands on behalf of the debtor;
  2. staying legal proceedings against the debtor;
  3. requiring a person in possession of information relating to the debtor to be examined by and produce documents to the foreign representative; and
  4. requiring any property belonging to the debtor to be turned over to the foreign representative.

The Grand Court also has jurisdiction at common law to assist a foreign liquidation, subject to certain limitations, including that the assistance sought from the Grand Court is of a type that would be available to the liquidator under the law by which they were appointed in the country where the liquidation is taking place.10

viii Access to court files

The court office maintains hard-copy files of all originating process filed in the Grand Court and all final judgments or orders given by the Grand Court, which are open to public inspection upon the payment of a fee.

Affidavit evidence and interlocutory applications and orders are not available for public inspection. A third party not involved in the proceedings may make an application to the Court for leave to inspect the court file.

ix Litigation funding

Third-party litigation funding agreements governed by Cayman Islands law will not be permitted unless they are structured in a manner that does not offend against the common law rules of maintenance (providing assistance for litigation with no legally recognised motive) and champerty (funding litigation in return for receiving a share of the proceeds).

Contingency agreements that involve sharing the proceeds of litigation in the Cayman Islands courts with an attorney are not permitted.11 However the Grand Court has confirmed that contingency agreements governed by Cayman Islands law are enforceable where they are to be performed in a foreign country where such arrangements are lawful.12 It is often necessary for Cayman Islands liquidators to engage attorneys in the United States to pursue litigation based on a contingency agreement. If such arrangements were not permitted, many such claims would not be brought as there are often insufficient funds available in the liquidation estate to fund attorneys' fees charged on hourly rates. The Grand Court has ruled that conditional fee agreements (CFAs), which involve an uplift in fees in the event of success in litigation, are enforceable as between the attorney and the client, where they are fair and reasonable in all the circumstances and have been approved in advance by the court.13 In a 2012 decision, the CICA expressly left open the question of the enforceability of CFAs as between attorney and client, while ruling that the amount of the uplift is not recoverable from an opposing party pursuant to a costs award made by the court.14

IV LEGAL PRACTICE

i Conflicts of interest and Chinese walls

The general principle is that, in the absence of consent, a firm should not act for a client where there is a conflict of interest with another existing or former client.15

Chinese walls are permitted and expressly recognised in the Cayman Islands Code of Conduct for Attorneys. Proper restrictions must be put in place to prevent leakage of confidential information, including physical separation of attorneys and hard-copy files, firewalls around electronic files and undertakings by the attorneys. Whether a Chinese wall is an appropriate means by which to manage a conflict depends upon the circumstances of the individual case.

ii Money laundering, proceeds of crime and funds related to terrorism

Cayman Islands anti-money laundering (AML) and proceeds of crime legislation are contained principally in the Proceeds of Crime Law (2016 Revision) (PCL) and also in the Misuse of Drugs Law (2014 Revision) (as amended) and the Terrorism Law (2015 Revision). The PCL is supplemented by the Money Laundering Regulations (2015 Revision) (the Regulations) and the Guidance Notes on the Prevention and Detection of Money Laundering and Terrorist Financing in the Cayman Islands.

Regulation 5(1) of the Regulations requires that anyone carrying out 'relevant financial business' must, except in certain prescribed circumstances, maintain appropriate procedures to prevent money laundering, including client identification and verification procedures, record-keeping, staff training and designation of a compliance officer responsible for maintaining AML procedures. The provision of legal advice in relation to litigation would not ordinarily constitute relevant financial business within the meaning of the Regulations.

Pursuant to the PCL and the Terrorism Law, lawyers also have an obligation to report knowledge or suspicion of money laundering or terrorist activity that comes to their attention to the Financial Reporting Authority of the Cayman Islands. However, a lawyer is not required to do so where the information is obtained in privileged circumstances, unless it has been given to further a criminal purpose.

iii Data protection

The processing of personal data by professional persons (including attorneys) in the Cayman Islands is governed by the Confidential Information Disclosure Law 2016 (CIDL), common law duties of confidentiality and professional rules.

The Confidential Relationships (Preservation) Law (2015 Revision) has been repealed by the CIDL, and in particular it is no longer a criminal offence for professional persons to disclose 'confidential information'16 in their possession that arises in or is brought into the Cayman Islands, without the consent of the relevant principal or the permission of the Grand Court. However, in the absence of consent from the principal or another statutory exception applying, it remains a requirement under the CIDL to seek directions from the Court before documents containing confidential information belonging to a principal can be disclosed in litigation, either in the Cayman Islands or elsewhere.

The law on data protection in the Cayman Islands will be supplemented by a new statutory regime should the Data Protection Bill be enacted. The Bill is based on the European Data Protection Directive and is intended to exist alongside the CRPL and common law duties of confidentiality.

V DOCUMENTS AND THE PROTECTION OF PRIVILEGE

i Privilege

If a document falls within one of the categories of privilege, it need not be produced in litigation; however, it must still be identified on the party's list of discoverable documents. The main recognised categories of privilege are:

  1. legal professional privilege, which comprises:

    • legal advice privilege, which applies to documents recording communications between lawyers and clients for the purpose of obtaining or providing legal advice; and
    • litigation privilege, which applies to documents created for the dominant purpose of litigation that is contemplated or in progress at the time the document is created and can apply to communications with third parties;
  2. without prejudice privilege, which applies to communications between the parties directly or between their lawyers relating to the settlement of a dispute;
  3. privilege against self-incrimination, which allows a party to claim privilege in respect of documents that may put him or her at risk of criminal prosecution; and
  4. privilege on the grounds of public policy, which prevents disclosure of documents where such disclosure would be injurious to the public interest.

As noted above, where the CRPL applies, a litigant may also need a court order permitting him or her to disclose the relevant documents in the discovery process.17

The same rules of privilege apply to in-house counsel and to foreign lawyers involved in Cayman Islands proceedings. Such individuals may also be subject to the terms of the CPRL if they hold confidential information within the meaning of the CRPL that arises in or is brought into the Cayman Islands.

ii Production of documents

After the close of pleadings, each party must make available to the other party any relevant documents he or she has or had in his or her possession, custody or power relating to the matter at issue in the case.

Parties' discovery obligations are broad, and extend to all documents that may either advance or damage the case of the party seeking discovery and documents that may fairly lead to a train of enquiry that would have either of those consequences.18 However, the court will not permit requests for documents that amount to a 'fishing expedition'.19

Where a third party is controlled by the litigant or where the litigant has the right to obtain the document from the third party, the documents are considered to be in the litigant's power of procurement and are discoverable.

Electronic records or anything on which evidence or information is recorded (e.g., tapes, videos) are considered to be documents for the purposes of discovery. Any electronic media, to the extent that it contains information capable of being retrieved and converted to readable form is considered to be a document. It is immaterial that documents, electronic or otherwise, are overseas.

There are no rules governing electronic discovery in the Cayman Islands. However, a party can apply for an order that in-depth electronic discovery of media that are not readily accessible would be oppressive or disproportionate, depending on the circumstances of the case.

VI ALTERNATIVES TO LITIGATION

i Overview of alternatives to litigation

The vast majority of disputes are resolved by litigation rather than any alternative dispute resolution (ADR). There is no requirement for parties to attempt ADR prior to commencing litigation and parties will not be forced to do so. Nevertheless, many of the FSD judges support the use of ADR where the parties view it as a worthwhile alternative to litigation.

ii Arbitration

The Cayman Islands Arbitration Law 2012 is based on the UNCITRAL Model Law and the English Arbitration Act 1996.

The provisions of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (the New York Convention) relating to the enforcement of foreign arbitral awards have effect pursuant to the Foreign Arbitral Awards Enforcement Law (1997 Revision). New York Convention awards will be enforced unless the respondent establishes one of the defences set out in the Convention. Non-New York Convention awards are enforceable at common law in the same way as foreign judgments (see Section III.vi, supra).

There is a Cayman Islands chapter of the North American branch of the Chartered Institute of Arbitrators and a number of local firms have practitioners with ADR qualifications. Arbitration is not used frequently, although with the enactment of the Arbitration Law, its use may increase.

The Arbitration Law sets out the procedures that govern arbitration in the Cayman Islands and the duties of the arbitral tribunal. Many of the duties and procedures can be modified by agreement between the parties. However, any tribunal must act fairly and impartially, allow each party a reasonable opportunity to present his or her case, and conduct the arbitration without unnecessary delay or expense.

A party may, with leave of the Grand Court, appeal an arbitral award to the Grand Court on a point of law.20 A party may also apply to the Grand Court to set aside an award in certain prescribed circumstances consistent with the rules in the New York Convention.21

iii Mediation

As noted above, mediation is not used particularly frequently for the resolution of commercial disputes in the Cayman Islands. However, where the parties to proceedings wish to attempt mediation, the Grand Court is likely to facilitate their wishes by, for example, adjourning proceedings for a period of time to enable a mediation to take place.

VII OUTLOOK AND CONCLUSIONS

The Cayman Islands courts continue to hear a wide variety of complex international commercial and insolvency disputes.

In 2016, a number of important trials have commenced that will continue into 2017, including the trial in the long-running AHAB v. Saad dispute in the Grand Court. These trials have confirmed the Grand Court's ability to handle complex, lengthy and commercially significant matters.

There remains a steady flow of disputes before the Cayman Islands courts between investors and funds that have suspended redemptions or are being wound down. There are also a number of liquidations arising out of investment fund collapses that will continue to give rise to litigation over the coming year.

We have continued to see an increasing number of commercial and insolvency disputes involving parties based in Asia, particularly China, over the past year and that trend is expected to continue. In particular, a number of disputes between minority shareholders and Cayman Islands companies operating in Asia relating to the fair value of shares in the context of mergers under the Cayman Islands statutory merger regime are currently progressing through the courts.

This year also saw the introduction of legislation permitting the registration of limited liability companies (LLCs) in the Cayman Islands. The first cases before the Cayman Islands courts involving LLCs will be watched with interest.

Footnotes

1 Aristos Galatopoulos is a partner and Luke Stockdale and Paul Smith are associates at Maples and Calder.

2 The law in this area has been developing through a number of decisions in recent years, including In re Cybernaut Growth Fund LP [2014] (2) CILR 413, which was discussed in the sixth edition of this Review, and which was expressly left undisturbed by the CICA.

3 The second edition of the FSD Guide was issued in August 2015.

4 For a corporate defendant, this can be effected by delivering the writ by hand to the registered office.

5 Including, in appropriate circumstances, in support of foreign proceedings: Section 11A of the Grand Court Law (2015 Revision). See Section II.ii, supra.

6 Section 4(1) of the Legal Practitioners Law (2015 Revision).

7 Olearius Ltd v. Walker Intl Holdings Ltd [2003] CILR 457.

8 Named after the English decision Norwich Pharmacal Co v. Commissioners of Customs & Excise [1974] AC 133 and applied in numerous Cayman Islands cases (e.g., Deutsche Bank v. Codelco [1996] CILR 1).

9 Named after the English decision Bankers Trust Co v. Shapira [1980] 1 WLR 1274 and recognised in the Cayman Islands (e.g., in Braga v. Equity Trust Company (Cayman) Limited [2011] (1) CILR 402).

10 Singularis Holdings Ltd v. PricewaterhouseCoopers [2015] 2 WLR 971.

11 Quayum v. Hexagon Trust Company (Cayman Islands) Limited [2002] CILR 161.

12 In the matter of ICP Strategic Credit Income Ltd and another [2014] (1) CILR 314.

13 Re DD Growth Premium 2x Fund [2013] (2) CILR 361.

14 Attorney General v. Barrett [2012] (1) CILR 127. At the time of writing, the Cayman Islands Law Reform Commission review into contingency agreements and CFAs remains in progress and this may lead to future changes in this area.

15 Rules 1.11–1.13 of the Code of Conduct for Cayman Islands Attorneys.

16 Confidential information includes information arising in or brought into the Islands, concerning any property of the principal to whom a duty of confidence is owed by the recipient of the information.

17 GCR O.24, r.5.

18 Compagnie Financiere v. Peruvian Guano Co (1882) 11 QBD 55, applied in Renova Resources Private Equity Limited v. Gilbertson [2011] (2) CILR 148.

19 In re C [1994-95] CILR 254.

20 Section 76 of the Arbitration Law. The operation of this section can be excluded by agreement of the parties.

21 Section 75 of the Arbitration Law; Appalachian Reinsurance v. Mangino [2014] (1) CILR 152.

Originally published by Law Business Research Ltd , London.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.