CAYMAN ISLANDS Law and Practice Contributed by: Alan Bercow and Jae Shin, Appleby
remedy sought, and the respondent is required to state its defence (Section 32 Arbitration Act); and • the tribunal is required to decide whether to have an oral hearing and on production of documents, and to hold hearings at an appropriate stage on a party’s request (Section 33 Arbitration Act). 7.3 Powers and Duties of Arbitrators Powers The parties have considerable freedom to confer pow - ers on arbitrators, and many of the powers provided by the Arbitration Act are expressly subject to any agreement between the parties to the contrary. Exam - ples of those statutory powers include the power to: • decide on their own jurisdiction; • grant interim relief; • order security for costs; • decide upon the procedure; • exercise default powers, including terminating the proceedings; • make interim awards; • award interest; • award costs; and • correct computation, clerical and typographical errors in awards. Duties The arbitral tribunal is bound to: • act fairly and impartially; • allow each party a reasonable opportunity to pre - sent its case; and • conduct the arbitration without unnecessary delay and expense (Section 28 Arbitration Act). 7.4 Legal Representatives Subject to any agreement to the contrary, the parties are free to choose their representatives in arbitration; they are not required to be represented by a legal practitioner (Section 34 Arbitration Act). 8. Evidence 8.1 Collection and Submission of Evidence The parties have freedom to agree the evidential pro - cedure, and this is often (but not always) achieved by
the adoption of the rules of an arbitral institution such as CI-MAC. Subject to that, as part of its power to decide on the procedure to be adopted, the arbitral tribunal can decide evidential procedure (including admissibility and weight of evidence), and has specific power to order discovery of documents, interrogato - ries, witness evidence on affidavit or oath (Section 38 Arbitration Act). 8.2 Rules of Evidence Subject to any agreement to the contrary, the arbitral tribunal is not bound by the rules of evidence but may inform itself in relation to any matter as it thinks fit (Section 33 (6) Arbitration Act). However, given the duty of fairness and that an award may be set aside on the grounds of misconduct or breach natural justice, tribunals are cautious about the means in which evi - dence is admitted. Arbitrations conducted pursuant to institutional rules will be subject to their provisions as to evidence, and it is common in international arbitra - tion to use the IBA Rules on the Taking of Evidence in International Arbitration. 8.3 Powers of Compulsion Subject to any agreement to the contrary, the arbi - tral tribunal has power to order discovery and for a party or witness to be examined on oath (Section 38 (2) Arbitration Act). The court has power to compel a witness in the Cayman Islands to attend and give evi - dence, and to produce specified documents (Section 40 Arbitration Act). Subject again to any agreement to the contrary, if any person, whether or not a party to the arbitration agree - ment, refuses or fails to do the following, a party may apply to the court for an order requiring them to do so before the court: • attend for examination when required by subpoena or by the arbitrator to do so; • take the oath or affirm; • answer a question that the arbitrator has required them to answer; • produce a document as required by subpoena or the arbitrator; or • do anything required by the arbitrator (Section 41 Arbitration Act).
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