CAYMAN ISLANDS Law and Practice Contributed by: Alan Bercow and Jae Shin, Appleby
8.2 Rules of Evidence The arbitral tribunal, subject to any agreement to the contrary, is not bound by the rules of evidence but may inform itself in relation to any matter as it thinks fit (Section 33 (6) of the Arbitration Act). However, given the duty of fairness, and that an award may be set aside on the grounds of misconduct or breach natu - ral justice, tribunals are cautious about the means by which evidence is admitted. Arbitrations conducted pursuant to institutional rules will be subject to their provisions as to evidence, and it is common in inter - national arbitration 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 arbitral tribunal has power to order discovery and for a party or witness to be examined on oath (Section 38 (2) of the Arbitration Act)). The court has power to compel a witness in the Cayman Islands to attend and give evidence, and to produce specified documents (Sec - tion 40 of the Arbitration Act). Subject again to any agreement to the contrary, if any person, whether or not a party to the arbitration agreement, refuses or fails to: attend for examination when required by sub - poena or by the arbitrator to do so, to take the oath or to affirm, to answer a question which the arbitrator has required them to answer, to produce a document as required by subpoena or the arbitrator, or to do anything required by the arbitrator, a party may apply to the court for an order requiring them to do so before the court (Section 41 of the Arbitration Act).
• 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 of the 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, to grant interim relief, to order security for costs, to decide upon the proce - dure, to exercise default powers including terminating the proceedings, to make interim awards, to award interest, to award costs and to correct computation, clerical and typographical errors in awards. Duties The arbitral tribunal is bound to act fairly and impar - tially, allow each party a reasonable opportunity to present its case, and conduct the arbitration without unnecessary delay and expense (Section 28 of the 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 of the 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 arbi - tral tribunal can decide evidential procedure including admissibility and weight of evidence, and has specific power (unless otherwise agreed) to order discovery of documents, interrogatories, and the provision of witness evidence on affidavit or oath (Section 38 of the Arbitration Act).
9. Confidentiality 9.1 Extent of Confidentiality
Arbitral proceedings are to be conducted in private and confidentially in the Cayman Islands, the state - ments of case, evidence and rulings and awards are confidential, and the parties are under a duty of con - fidentiality. Information in arbitral proceedings can be disclosed in certain circumstances including if it can reasonably be considered as necessary to protect a party’s lawful interests, or is necessary in the interests of justice (Sections 2 (1) and 81 of the Arbitration Act).
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