CAYMAN ISLANDS Law and Practice Contributed by: Alan Bercow and Jae Shin, Appleby
5.6 Jurisdiction Over Third Parties Arbitration is a contractual remedy and Cayman Islands law does not allow an arbitral tribunal to assume jurisdiction over non-parties, save that a per - son claiming “through or under” a party to an arbitra - tion agreement is deemed to be a party (Section 2 Arbitration Act). Further, in a dispute about whether a company was or was not a party to an arbitration clause, the UK Privy Council upheld a decision of the Cayman Islands Court of Appeal that a respondent was precluded by issue estoppel (a decision of the Brazilian court) from resisting enforcement on the ground that it did not agree to arbitration ( Gol Linhas Aereas v MatlinPat- terson Global Opportunities Partners (Cayman) II LP [2022] UKPC 21). 6. Preliminary and Interim Relief 6.1 Types of Relief The arbitral tribunal is permitted (unless the parties otherwise agree) to: • grant interim measures to maintain or restore a party to their original position pending determina - tion of the dispute; • restrain a party from taking action that could harm or prejudice the arbitral process; • preserve assets out of which an award may be satisfied; and • preserve evidence (Section 44 Arbitration Act). 6.2 Role of Courts The Cayman Islands courts may order interim relief in arbitral proceedings, but may only do so to the extent that the tribunal has no power or is unable for the time being to act effectively. Types of interim relief that the courts can grant include: • security for the amount in dispute; • a freezing injunction; • an interim injunction; and • orders for the preservation of evidence (Section 43 Arbitration Act).
More widely, the courts have the same powers to issue an interim measure as they have in relation to proceedings in court, irrespective of whether the seat of arbitration is in the Cayman Islands (Section 54 Arbitration Act). The courts will, in appropriate cir - cumstances, grant interim relief before the tribunal has been constituted. The CI-MAC rules provide for appointment of emer - gency arbitrators, but also provide that decisions made by emergency arbitrators will not bind the tri - bunal (once it is constituted), which will have power to reconsider, modify or vacate any interim order or award issued by the emergency arbitrator, including their ruling on their own jurisdiction. The Cayman Islands courts have not yet ruled on the enforceability of emergency arbitrator relief. 6.3 Security for Costs The arbitral tribunal has power to order security for costs, unless otherwise agreed by the parties (Section 38 (2)(a) Arbitration Act). The court also has power to order security for costs but may only do so to the extent that the tribunal has no power or is unable for the time being to act effectively. The parties are free to agree on the procedure of arbi - tration, and in the absence of agreement the arbitral tribunal can conduct the arbitration in such manner as it considers appropriate (in both cases, subject to the provisions of the Arbitration Act) (Section 29 Arbitra - tion Act). See 7.3 Powers and Duties of Arbitrators . 7.2 Procedural Steps As stated in 7.1 Governing Rules , the parties are free to agree on the procedure, and the tribunal has discre - tion in the conduct of the arbitration. The Arbitration Act does contain some procedural steps, including (subject to any agreement to the contrary) the follow - ing: • the claimant is required to state the facts support - ing its claim, the points in issues, and the relief or 7. Procedure 7.1 Governing Rules
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