Answer ... (a) Procedure, including evidence?
The parties may agree on the rules to be followed during the arbitral proceedings (Section 29 of the Arbitration Law) and the powers that may be exercised by the tribunal (Section 38).
In the absence of agreement, the arbitral tribunal shall decide procedural and evidential matters in such manner as it considers appropriate (Section 29).
These matters include (Part VII of the Arbitration Law):
- when and where any part of the proceedings is to be held;
- the language or languages to be used;
- whether written documents materials are required and if so, in what form;
- whether there should be oral evidence;
- which documents or classes of documents should be disclosed between the parties (if any);
- the extent to which telecommunications technology will be used;
- the extent to which the tribunal will be bound by rules of evidence; and
- the determination of the admissibility, relevance, materiality and weight of any evidence.
(b) Interim relief?
Part VIII of the Arbitration Law sets out the tribunal’s power to grant interim relief (based on Article 17 of the United Nations Commission on International Trade Law Model Law). Unless otherwise agreed by the parties, the tribunal has the power to grant the following measures (Section 44 of the Arbitration Law):
- to maintain or restore the original position of the other party pending determination of the dispute;
- to take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process;
- to provide a means of preserving assets out of which a subsequent award may be satisfied; and
- to preserve evidence that may be relevant and material to the resolution of the dispute.
A party that requests an interim measure shall satisfy the tribunal that (Section 45):
- harm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and that the harm substantially outweighs the harm likely to result to the party against which the measure is directed if the measure is granted; and
- there is a reasonable possibility that the requesting party will succeed on the merits of the claim.
An interim measure issued by an arbitral tribunal shall be recognised as binding and, unless otherwise provided by the tribunal, enforceable upon application to the court, irrespective of the jurisdiction in which it was issued (Section 52), subject to a limited number of defences (Section 53).
The party requesting an interim measure shall be liable for any costs and damages caused by the measure to any party if the tribunal later determines that, in the circumstances, the measure should not have been granted (Section 51).
Unless otherwise agreed by the parties, the tribunal can grant interim relief on an ex parte basis. The tribunal may grant such an order provided that it considers that prior disclosure to the party against which the measure is directed may frustrate the purpose of the measure (Section 46(2)). Full and frank disclosure is required (Section 50); and the tribunal may require the party requesting the measure to provide security (Section 49). The party against which an order is made will be given an opportunity to present its case at the earliest practicable time thereafter (Section 47).
Moreover, unless the parties agree otherwise, the tribunal may order a claimant to provide security for the costs of the arbitration (Section 38(2)(a)). However, this power shall not be exercised by reason only that the claimant is an individual ordinarily resident outside the Cayman Islands or a corporation or an association incorporated or formed under the law of a country outside the islands, or whose central management and control is exercised outside the islands.
(c) Parties which do not comply with its orders?
The parties may agree on the powers that may be exercised by the arbitral tribunal should one party fail to take any necessary action for the proper and expeditious conduct of the proceedings (Section 39 of the Arbitration Law).
Unless otherwise agreed by the parties, if, without showing sufficient cause:
- the claimant fails to provide its statement of claim in accordance with Section 32, the arbitral tribunal may terminate the proceedings;
- the respondent fails to provide its statement of defence in accordance with Section 32, the arbitral tribunal may continue the proceedings without treating such failure in itself as an admission of the claimant’s allegations; and
- any party fails to appear at a hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and make the award on the evidence before it.
If the arbitral tribunal is satisfied that there has been inordinate and inexcusable delay on the part of the claimant in pursuing its claim, the tribunal may make an award dismissing the claim if the delay:
- gives rise, or is likely to give rise, to a substantial risk that it is not possible to have a fair resolution of the issues in that claim; or
- has caused, or is likely to cause, serious prejudice to the respondent.
Unless a contrary intention is expressed in the arbitration agreement, where any person (whether or not a party to the agreement) refuses or fails to do any other thing which the arbitrator may require, a party to the arbitration agreement or the arbitrator may apply to the Grand Court for an order requesting the person in default to attend before the court for examination or to produce the relevant document or to do the relevant thing (Section 41). Any person that fails to comply with a court order will be in contempt of court.
(d) Issuing partial final awards?
Unless otherwise agreed by the parties, the tribunal may issue interim (Sections 2(1) and 61), interlocutory or partial awards.
(e) The remedies it can grant in a final award?
The parties are generally free to agree on the tribunal’s power to grant remedies (Section 57).
Unless otherwise agreed by the parties, the arbitral tribunal may award any remedy or relief that could have been ordered by the Grand Court if the dispute had been the subject of civil proceedings in that court. Such remedies include damages, permanent injunctions, orders for specific performance, declaratory relief and awards of costs and interest.
Subject to the parties’ agreement, the tribunal may award interest for such periods and at such rates as it considers meets the justice of the case, both up to the date of the award and between the date of the award and payment (Section 58).