CAYMAN ISLANDS Trends and Developments Contributed by: Matthew Dors, Natascha Steiner-Smith, Annalisa Shibli and Kirsten Bailey, Collas Crill
award granted by an arbitral tribunal seated in the Dubai International Arbitration Centre (DIAC). Leave was granted by the Grand Court in January 2023, and the defendant filed a summons to set aside the order granting leave in July 2023. The application for setting aside the order was made on the grounds that: • the arbitration procedure was not in accordance with the parties’ agreement; and • the order was liable to be set aside on the grounds of material non-disclosure about the parties’ agree - ment as to the arbitration procedure. In essence, the defendant contended that the parties agreed for any arbitration to be held pursuant to the rules of the Dubai International Financial Centre-Lon - don Court of International Arbitration, and the plain - tiff (without the defendant’s consent) commenced the arbitration under the DIAC arbitration rules. This point was not raised by the defendant during the course of the arbitration in Dubai. Accordingly, the key questions before the Grand Court in determining the application to set aside the original order were as follows. • Where a provisional arbitral award is made on an inter partes basis without the respondent chal - lenging the tribunal’s jurisdiction, should enforce - ment of that award be refused on the basis of a subsequent challenge to the tribunal’s jurisdiction (Jurisdiction Point)? • Should the ex parte order be set aside on the alternative material non-disclosure ground because the plaintiff did not identify the difference between the arbitral tribunal contracted for and the tribunal that made the provisional award (Material Non- Disclosure Point)? On the Jurisdiction Point, the Grand Court found that, in circumstances where no objection to the tri - bunal’s jurisdiction was made during the course of the arbitration, the defendant was clearly estopped from challenging the jurisdiction of the DIAC to make the provisional award in the Cayman Islands enforce - ment proceedings. The judge went on to comment
that “[t]he legislative policy of swift enforcement on narrowly circumscribed grounds could all too eas - ily be undermined if respondents had the unfettered right to raise new points before foreign enforcement courts which were never in issue before the tribunal but which could and should have been raised”. The Material Non-Disclosure Point was then summar - ily dismissed on the basis that the Jurisdiction Point was irrelevant to the plaintiff’s ex parte application. In the Matter of Carrefour Nederland BV v Suning International Group Co, Limited et al (Unreported, 15 April 2024) In this case, the ex parte order granting leave to enforce a final arbitral award made by the Hong Kong International Arbitral Tribunal was granted on 2 November 2023 and was contested by summons dated 24 November 2023. The defendants did not seek to have the ex parte order set aside for any of the substantive reasons provided for by the Enforcement Act, but employed a strategy based on more technical complaints by applying for: • a declaration that the ex parte order, as well as the originating summons and supporting affidavit, were not validly served (Service Point); • an order setting aside purported service of the ex parte order and ancillary documents on the grounds that the plaintiff had failed to make full and frank disclosure or make a fair presentation of the case at the ex parte stage (Full and Frank Disclosure Point) and/or on the grounds that cer - tain paragraphs of the ex parte order were not in compliance with the relevant rules (Irregularities in the Ex Parte Order); and • an order staying the ex parte order under, among other things, the Grand Court’s inherent jurisdiction and/or pursuant to the Grand Court’s case man - agement powers (Stay Application). Though it accepted that there were some irregularities in how service was dealt with, the Grand Court was largely dismissive of the Service Point, concluding that the service complaints were “merely designed to impede the plaintiff’s enforcement efforts”.
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