Cayman Islands: Show Me The Money: Identification And Preservation Of Assets In The Cayman Islands

Last Updated: 5 November 2019
Article by David Lee and Mehreen Siddiqui

The Cayman Islands has long had a developed arbitration framework providing for the recognition and enforcement of international arbitration awards. As the Cayman Islands is also a jurisdiction in which many organisations hold substantial assets, this can prove a valuable route for enforcement. However, prior to enforcement, the first step is often the identification and preservation of assets. In this article, we set out the steps which a party with an arbitration award may take to identify and preserve assets in the Cayman Islands – covering key recent developments in the law, before going on to set out practical guidance.


There are a number of viable routes that the holder of an arbitration award, as a judgment creditor, may use to identify assets in the Cayman Islands, including, the examination of a judgment debtor, a Norwich Pharmacal order, a Bankers Trust order and an Anton Piller order.

Examination of judgment debtor

In order to assist post-judgment enforcement, the Cayman Courts allow for the examination of a judgment debtor by a judgment creditor. A judgment creditor may obtain ex parte an order that a judgment debtor located in the Cayman Islands be orally examined on (i) whether they have any property or other means of satisfying the judgment; and (ii) whether any debts are owing to the judgment debtor. The Court may also order the judgment debtor to produce any books or documents relevant to these questions.

However, in many cases the judgment debtor, whilst they have assets in the jurisdiction, may not be present themselves or they may not be considered to be a reliable source of information. In these cases, it may be necessary to obtain information on a judgment debtor's assets from a third party that either holds those assets or holds information relating to those assets. This may be done by seeking a Norwich Pharmacal order.

Norwich Pharmacal orders

The Norwich Pharmacal jurisdiction1 gives the Court the power to compel a third party that has become ''mixed up'' (albeit innocently) in alleged wrongdoing beyond being a ''mere witness'' to disclose information and documents. The Norwich Pharmacal jurisdiction was first recognised in the UK, but has also been recognized in other jurisdictions whose legal systems were developed from English law. The Norwich Pharmacal jurisdiction initially arose to deal with the situation where a party, that has suffered a wrong, does not know the identity of the wrongdoer, but can identify a third party who does. However, the jurisdiction has been extended to deal with a variety of scenarios where information held by a third party is necessary to bring a claim against a wrongdoer. Norwich Pharmacal orders can be obtained on an ex parte basis without notice to the alleged wrongdoer, and with a gagging order preventing the third party from informing the wrongdoer.

The Cayman Courts have long recognised the availability of the Norwich Pharmacal jurisdiction and in some key respects the jurisdiction is more broadly available in the Cayman Islands than other jurisdictions. For example, in the Cayman Islands, Norwich Pharmacal orders are often obtained against a Cayman company's local ''registered office'' which maintains its company books and records. The English Courts would likely consider such an entity to be a mere witness to any wrongdoing. However, this disclosure is available in the Cayman Islands and is often very valuable as it may include bank account details which can then be used for a further Norwich Pharmacal application against the relevant bank.

For a Norwich Pharmacal order to be obtained in the Cayman Islands an applicant must satisfy three key requirements: (1) a good arguable case that there has been ''wrongdoing'' against them; (2) the respondent is ''mixed up'' in that wrongdoing in some way that distinguishes it from being a mere witness; and (3) the disclosure sought is ''necessary'' for the applicant to seek legitimate redress for the wrongdoing. Norwich Pharmacal orders are generally used to obtain information to enable a party to bring a claim. However, the Cayman Court recently confirmed that Norwich Pharmacal orders can be obtained post-judgment where a party seeks to evade enforcement.

In the case of ArcelorMittal USA LLC v Essar Global Fund Limited & Anor,2 ArcelorMittal sought a Norwich Pharmacal order (amongst other relief including a worldwide freezing order) in aid of enforcement by the English Courts of an ICC arbitral award against two Essar entities made by a Tribunal seated in Minnesota. ArcelorMittal alleged that the judgment creditors had dissipated assets (including by the transfer of valuable shareholdings from the judgment creditors to other entities in the Essar group) and would further dissipate assets. The two respondents sat at the top of the Essar group structure and ArcelorMittal's position was that, without disclosure from the respondents, it would not be able to identify what had taken place or what form of relief was appropriate in order for it to be able to enforce the ICC award. ArcelorMittal also believed that without disclosure there was a risk of key documents being destroyed at the direction of the two defendant companies.

Justice Kawaley held that the steps which ArcelorMittal alleged that the judgment debtors had taken to avoid complying with the ICC award satisfied the requirement for a good arguable case of ''wrongdoing''. The requirement that the respondent be ''mixed up'' in the alleged wrongdoing was not in issue in the case due to the connection between the respondents and the judgment debtors. However, Justice Kawaley did refer to a passage in a BVI case, UVWv XYZ,3 which stated that, if a judgment debtor uses a registered agent's services in using a corporate vehicle for evading enforcement efforts, that agent could be said to be ''mixed up'' in the wrongdoing and it is likely that the Cayman Courts will follow this approach where relevant. Justice Kawaley found that the final requirement that the disclosure sought is ''necessary'' was satisfied as the information sought was necessary to determine the steps that needed to be taken in order to be able to successfully enforce the ICC award. It is clear from the judgment that the risk that documents would be destroyed if the order was not granted was a factor.

The ArcelorMittal case highlights the Cayman Courts' willingness to grant Norwich Pharmacal relief in novel and flexible ways and should form an important tool in the post-judgment enforcement of international arbitration awards. It should be noted that ArcelorMittal was not seeking to enforce the ICC award in the Cayman Islands – enforcement of the international award was sought before the English Court. Nevertheless, the Cayman Court was prepared to order disclosure in aid of that enforcement. This flexibility will often be important as attempts to identify and preserve assets in the Cayman Islands are often part of a wider enforcement exercise spanning multiple jurisdictions.

Bankers Trust orders

A Bankers Trust4 order is a variation of the Norwich Pharmacal order and may be used to identify the location of assets where those assets are claimed to be owned by the applicant. They are typically obtained against a bank and require a third party to make full disclosure of facts which would enable funds, which the applicant claims as their own, to be traced and protected from dissipation before the action. As the applicant claims the funds as their own, there is no requirement to show that the third party is mixed up in any wrongdoing. Again, it is possible to make such orders on a without notice basis and subject to gagging orders.


Once assets have been identified, a judgment creditor will likely want to take steps to preserve those assets pending enforcement. In line with other common law jurisdictions, the Cayman Courts have the power to grant freezing orders restraining a defendant's ability to deal with their assets up to the value of the claim against them. Freezing injunctions are generally obtained on an ex parte basis – as giving a defendant notice might lead the defendant to move assets thereby undermining the purpose of the order. Third parties, such as banks, who receive notice of a freezing order, are bound not to act on instructions which would breach the freezing order.

Generally, for a freezing injunction to be obtained, an applicant must satisfy three key requirements: (1) that he has a claim against the defendant and that he has a ''good arguable case'' that that claim will be successful. This does not mean that the applicant must show that his claim is bound to succeed, but it does mean that he must show that his claim is more than arguable; (2) that there is a ''real risk'' that the defendant will dissipate their assets such that a judgment will not be satisfied. The Court here is not concerned with the use of assets in the ordinary course of business, but with an unjustifiable step to dissipate assets; and (3) a freezing order is a discretionary remedy and will only be granted by the Court where it is ''just and convenient'' to do so. In considering whether it is just and convenient, the Court will weigh the risk of prejudice to the applicant against the likely significant impact on the defendant of being unable to deal with their assets.

Freezing injunctions may be obtained post-judgment in the Cayman Islands. In Banco International De Costa Rica SA v Banana International Corporation and others,5 Justice Kawaley set out the specific considerations which apply to post-judgment freezing orders. Justice Kawaley stated that, in a post-judgement context, the requirement for a good arguable case clearly did not arise (the case having been definitively established by the judgment).He also noted that the evidence required to satisfy the risk of dissipation requirement will generally be lower post-judgment.

In cases where a judgment creditor has concerns regarding dissipation, but does not have sufficient evidence to meet the ''real risk'' requirement, a notification order may be considered. In broad terms, such an order (which is seen as a modification on an application for a freezing injunction) provides that the respondent cannot deal with/dispose of his assets without first providing notice of the proposed dealings to the applicant. This provides the applicant an opportunity to assess the proposed dealing and raise objections to the Court if needs be. The applicable test essentially mirrors that of a freezing injunction; although the English Court of Appeal in Holyoake v Candy6 noted that the test may differ where the applicant is seeking a simple order requiring notice to be given of a proposed disposition of a specific property. Such an order was recently sought (in support of a garnishee summons) in the ArcelorMittal case. In that case the Court found (a) no serious question to be tried on the merits of the application for a garnishee order; and (b) it was not just and convenient to grant the injunctive relief sought and therefore the order sought was not granted (although with liberty to apply).


The broad and flexible scope of the available judicial tools should give holders of arbitration awards confidence that, where a judgment creditor has assets in the Cayman Islands, it will be possible to identify and preserve those assets.

Tips for judgment creditors seeking to identify and preserve assets:

  • Do your fact gathering – the Court will assess whether to grant Norwich Pharmacal relief against the evidence before it of the alleged wrongdoing. The remedy cannot to be used as a fishing expedition. As a result, it is important that you are able to set out the alleged wrongdoing cogently – even if there are unavoidable gaps in your knowledge.
  • Do be prepared to put your hands in your pockets – Norwich Pharmacal applications are not ordinarily regarded as adversarial proceedings. As a result, the usual Cayman principle that the loser of an application must pay the other party's costs does not apply. For Norwich Pharmacal applications, the starting position is that the applicant seeking the ordermust pay the respondent's reasonable costs. There are two aspects to these costs: the costs of responding to the application; and those of providing the discovery pursuant to the order granted. As a result, applicants should take care to effectively target the discovery sought so that they do not have to pay for the discovery of unnecessary documents and information.
  • Do maintain secrecy – Norwich Pharmacal applications carry a risk of tipping off judgment creditors that specific assets are likely to be enforced against. Where disclosure is sought from third party service providers such as banks or registered offices, sealing Court files and obtaining gagging orders are usually an essential step. In cases where the entity from whom disclosure is sought is extremely close to the judgment creditor (such as being a related company), sealing and gagging orders may have less practical value. In these circumstances, a more effective execution strategy may be to obtain a freezing order against the judgment creditor first.
  • Do maximise your reach – when obtaining freezing orders, you should look beyond assets that are legally and beneficially owned by the judgment creditor to cover all assets that you can ultimately enforce against because they are somehow at the judgment creditors disposition. Where the judgment creditor has a beneficial interest in shares of a company, it may be possible to freeze not just the shares but also the assets of the underlying company.
  • Do spend time planning – the range of tools available both to identify and preserve assets can be used creatively, meaning that time spent planning an enforcement strategy at an early stage is essential to maximise the prospects of success. This is all the more so where a judgment debtor's assets are spread across multiple jurisdictions and an enforcement exercise needs to span those jurisdictions. In these cases, it is important to look at the enforcement exercise in the round so as ensure that steps taken in each jurisdiction properly dovetail with each other.

First published in Mealey’s International Arbitration Report, September 2019

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions