In a helpful judgment of the Cayman Islands Grand Court, Justice Kawaley has confirmed, for the first time, that interim arbitration awards may be enforced as judgments in the Cayman Islands. This may provide a useful strategic opportunity for parties to ongoing arbitrations.
In the matter of Al-Haidar v Rao et al (FSD 328 of 2022, IKJ) Justice Kawaley was asked to grant leave to enforce an interim award made in favour of the plaintiff (details of the award were not given). Although counsel had made reference to Singaporean authority that addressed awards by emergency arbitrators, there was no judicial authority that the term “award” used in a foreign enforcement statute such as the FAAEA should be construed as including an interim, as well as a final, award.
Justice Kawaley considered the argument “resting on academic text authority alone…too ambitious to be accepted in the context of the present ex parte application”.
Justice Kawaley then went on to consider whether reading the FAAEA with the 2012 Act provided a more solid alternative jurisdictional argument. Justice Kawaley accepted that the FAAEA had priority in the event of a conflict between the two but considered there to be no inconsistency given that the FAAEA did not explicitly deal with interim measures or awards at all.
Justice Kawaley adopted a “somewhat rough and ready approach” in the context of adjudicating an ex parte application, and “not without some anxiety”, preferred the view that, with the introduction of the 2012 Act, the scope of the FAAEA was implicitly expanded to incorporate not just the final award enforcement provisions of the 2012 Act but also the interim measure enforcement provisions. Justice Kawaley considered that:
this approach preserves the traditional view of the FAAEA as the umbrella statute governing the enforcement of foreign arbitration awards which incorporates to the extent necessary the substantive enforcement provisions found in the general Arbitration Act.
Justice Kawaley also noted that, if the approach were technically unsound, the Court had jurisdiction to make an order with the same practical effect under the 2012 Act.