In a recent judgment in Suning International Group Co Limited et al v. Carrefour Nederland BV, the Court of Appeal of the Cayman Islands (the Court) clarified certain procedural and evidentiary requirements for applications regarding the recognition and enforcement of foreign arbitral awards in the Cayman Islands.
Background
The appeal before the Court concerned an analysis of the Grand Court's ex parte order recognising and giving the Respondent leave to enforce an arbitral award which it had obtained against the Appellants in Hong Kong1 (the Order). The Order also contained certain directions as to service.
The Appellants subsequently applied to set aside the Order on various grounds, including that it had not been validly served because the method of service authorised by the first instance judge (the Judge) was irregular, and not in accordance with applicable law and procedure.
The Judge rejected the grounds relied upon by the Appellants and dismissed the application to set aside the Order. However, the Appellants were granted leave to appeal the decision on the basis that the manner in which service of an Order recognising and giving leave to enforce a foreign arbitration award can properly be ordered was considered to be a matter of public interest, which would benefit from appellate consideration. It would also provide the Court with an opportunity to provide overarching guidance on best practice.
Decision
In dismissing the appeal, the Court of Appeal has taken that opportunity and provided guidance to the effect that, while the Hague Convention's requirements for service abroad must be considered, the Cayman Court has a broad discretion to order alternative service (e.g. on foreign lawyers who acted in the arbitration), if justified by the circumstances.
Applicants are required to provide evidence about the practicalities of service via the Central Authority (e.g. expected delays, reliability) and justify any request for alternative service (e.g. urgency or risk of prejudice).
Applicants must also disclose all material facts relevant to enforcement, especially those that could support a statutory ground for refusal. However, it was noted that related proceedings (such as parallel arbitrations or winding-up petitions) are only material if they affect the grounds for refusal under the relevant statute.
The Court also emphasised the high threshold for the grant of a
stay of enforcement, noting that it will not grant a stay of
enforcement simply because related proceedings (e.g. counterclaims
or set-offs in other arbitrations) are pending, unless there is a
statutory basis or compelling reason.
The Court emphasised the importance of speedy enforcement,
especially where the parties agreed to specific and expedited
dispute resolution procedures in an arbitration agreement.
The Court warned that future applicants should be aware that a failure to follow this guidance may result in service being deemed ineffective and enforcement delayed or denied. The judgment also makes enforcement of foreign arbitral awards in the Cayman Islands more predictable, efficient, and robust whilst clarifying procedural requirements and reducing the risk of technical challenges that could derail enforcement.
Conyers acted for the Appellants in the first instance and appellate proceedings.
Footnote
1 Pursuant to section 5 of the Foreign Arbitral Awards Enforcement Act (1997 Revision) (the Act), with the leave of the Grand Court, an arbitration award made in pursuance of an arbitration agreement in the territory of a state which is party to the New York Convention (a Convention award) may be enforced in the same manner as a judgment or order of the Grand Court
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