Grand Court Grants Leave To Enforce A Foreign Interim Arbitration Award

• Published date: 07 March 2023
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution
• Law Firm: Walkers
• Author: Ms Colette Wilkins, Nick Dunne and John Crook

On 3 February 2023 the Grand Court of the Cayman Islands delivered a judgment in the matter of Nasser Sulaiman HM Al Haidar v Jetty Venkata Uma Mahewshawara Rao (FSD 328 OF 2022 (IKJ)) explaining its decision to grant leave to enforce an interim award made in the course of a foreign arbitration.

Whilst the application was made ex parte, and dealt with on the papers without an oral hearing, Kawaley J nevertheless issued a full ruling setting out his reasons for the decision, there having been no published Cayman Islands case dealing with the enforceability of interim awards.

The Court reiterated that the general approach of the Court to arbitral awards was pro-enforcement in keeping with the policy underlying the New York Convention, the expectation being that the majority of applications for leave to enforce would be straightforward and that the limited grounds upon which enforcement might be refused would be construed narrowly.

Interpretation of the statutory regime for enforcement of interim measures

Whilst section 5 of the Foreign Arbitral Awards Enforcement Act (1997 Revision) (the "FAAEA"), provides that foreign awards from New York Convention states will be enforced in the same manner as domestic awards, subject to the other provisions of the FAAEA, it was held that there was a dearth of authority for the proposition that "award" should be construed as including interim as well as final awards, at least without more. As such, the contention that the FAAEA permitted the enforcement of interim awards in its own right was rejected as too ambitious.

However, the Court was prepared to travel by an alternative route by way of reading the FAAEA in conjunction with the Arbitration Act 2012. Section 52(1)) of that Act does contain a freestanding enforcement provision governing interim "measures" on a separate basis to "awards", a provision which is applicable "irrespective of the jurisdiction in which it was issued". There was no inconsistency between that provision and the FAAEA as the latter did not explicitly deal with interim measures or awards at all.

The enforcement provisions within the Arbitration Act therefore gave rise to two possibilities: either it implicitly extended the regime under...