CAYMAN ISLANDS Law and Practice Contributed by: Guy Manning, Harry Shaw and Shaun Tracey, Campbells
they depend largely upon the nature and degree of resistance made by the judgment debtor. However, the court will be cognisant of a judgment debtor sim - ply seeking to delay enforcement of a foreign judg - ment against it. 3.6 Challenging Enforcement of Foreign Judgments The recognition and enforcement of a foreign judg - ment may be challenged on the grounds that one or more of the requirements outlined in 3.1 Legal Issues Concerning Enforcement of Foreign Judgments are not satisfied. As to the requirement for the foreign court to have had personal jurisdiction over the judgment debtor, the Cayman Islands court must be satisfied that the debtor was either present in the foreign jurisdiction at the time the proceedings were instituted, participated as a plaintiff or counter-claimant in those proceed - ings, voluntarily appeared as a defendant, or submit - ted to the foreign court’s jurisdiction as a defendant by prior agreement. By definition, this means that the foreign proceedings must have been served upon the debtor. Such matters may constitute a triable issue that precludes the grant of a summary judgment in a writ enforcement action. As to finality, a foreign judgment will be treated as final and conclusive if it is regarded as res judicata by the foreign court. A judgment entered in default of appearance by a defendant who has had notice of the foreign court’s intention to proceed may be final and conclusive even though the court has the power to set aside its own judgment. However, the principle of res judicata is to be applied with caution to earlier proceedings resolved by a judg - ment in default, and the Cayman Islands court may give leave to defend if the case was decided upon documentary evidence alone and the issue upon which the defendant seeks to rely was not a necessary element in the foreign court’s judgment. Judgment will not be considered final for the purposes of Cayman Islands enforcement unless/until any foreign appeals procedure has been exhausted. Where enforcement is sought via recognition of foreign receivership pro - ceedings, a foreign receivership order does not create
any conclusive and final obligation capable of being enforced in the Cayman Islands. As to fraud or breach of natural justice, the judgment debtor will be estopped from pleading any such chal - lenge if they consented to the judgment. A foreign judgment will be impeachable for fraud only on the basis of newly discovered material facts that were not before the foreign court. Likewise, it will be assumed that foreign proceedings have been conducted according to the proper procedure unless the con - trary is shown. 4. Arbitral Awards 4.1 Legal Issues Concerning Enforcement of Arbitral Awards The Cayman Islands is a pro-arbitration jurisdiction in which arbitral awards are readily enforceable in accordance with international norms. The Arbitra - tion Act, 2012 (the “Arbitration Act”) is based on the widely adopted UNCITRAL Model Law on Internation - al Commercial Arbitration. Together with the Foreign Arbitral Awards Enforcement Act (1997 Revision) (the “Enforcement Act”), the Arbitration Act gives effect to the 1958 Convention on the Recognition and Enforce - ment of Foreign Arbitral Awards (the “New York Con - vention”). The Arbitration Act provides that an arbitral award made pursuant to an arbitration agreement may, with the leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect. Upon the granting of leave, judgment may be entered in the terms of the award. The Arbitration Act further provides that an arbitral award made in any country will be recognised as bind - ing and, upon application to the court, will be enforced subject to the provisions of Sections 6 and 7 of the Enforcement Act (whether or not the award was made in a New York Convention contracting state; ie, a “convention award”). Section 6 of the Enforcement Act concerns the appli - cation procedure for seeking enforcement of a foreign award (see 4.4 Process of Enforcing Arbitral Awards )
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