The Arbitration Act 2012 and the Foreign Arbitral Awards Enforcement Act (1997 Revision) and an Arbitration Between (1) AGPL Investments Ltd (Formerly Tapl Investments Ltd) (2) Antanium Global Pte Ltd (Formerly Triterras Asia Pte Ltd) (3) Enertech Holdings Pte Lte v (1) Lam Global Management Ltd II (in its Capacity as General Partner, and on Behalf, of Lam Enhanced Trade Finance Fund II LP) (2) Lam Global Management Ltd III (in its Capacity as General Partner, and on Behalf, of Lam Enhanced Trade Finance Fund III LP) ; Between: (1) LAM Global Management Ltd II (in its capacity as general partner, and on behalf, of LAM Enhanced Trade Finance Fund II LP) (2) LAM Global Management Ltd III (in its capacity as gene
| Jurisdiction | Cayman Islands |
| Judge | Justice Kawaley |
| Judgment Date | 13 December 2022 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO: FSD 226 OF 2022 (IKJ) |
In the Matter of the Arbitration Act 2012
And in the Matter of the Foreign Arbitral Awards Enforcement Act (1997 Revision)
And in the Matter of an Arbitration
The Hon. Justice Kawaley
CAUSE NO: FSD 226 OF 2022 (IKJ)
IN THE GRAND COURT OF THE CAYMAN ISLANDS
FINANCIAL SERVICES DIVISION
Leave to enforce foreign arbitration award-governing principles-Foreign Arbitration Awards Enforcement Law (1997 Revision), sections 5–7-Grand Court Rules Order 73 Part II
Mr Jonathon Milne and Mr Spencer Vickers, of Conyers Dill & Pearman LLP, for the Plaintiffs
By an Ex Parte Summons dated 14 October 2022, the Plaintiffs applied for leave to enforce “ the final arbitration award dated 9 June 2022 and the correction to the final arbitration award dated 5 July 2022 (together, the ‘Award’) made by a Hong Kong seated tribunal administered by the Hong Kong International Arbitration Centre, Case number A20061 in favour of the Plaintiffs against the Defendant in the same manner as a judgment of the Grand Court or an order to the same effect”.
Having determined it was appropriate to deal with the application on the papers, the Plaintiffs' counsel filed a Skeleton Argument and Hearing Bundle on 1 December 2022. The following day I granted the relief sought on the Ex Parte Originating Summons.
These are the reasons for that decision 1.
The Foreign Arbitral Awards Enforcement Act (1997 Revision) (the “FAAEA”) critically provides as follows:
“ 5. A Convention award shall, subject to this Law, be enforceable in the Grand Court in the same manner as an award under section 22 of the Arbitration Law (1996 Revision) and shall be treated as binding for all purposes on the persons between whom it was made and may accordingly be relied upon by any of those persons by way of defence, set off or otherwise in any legal proceedings in the Islands and any reference in this Law to enforcing a Convention award shall be construed as including references to relying upon such award.”
The Arbitration Act (1996 Revision) provided:
“ 22. An award on an arbitration agreement may, by leave of the Court, be enforced in the same manner as a judgment or order to the same effect, and where leave is so given, judgment may be entered in terms of the award.”
The Arbitration Act was seemingly further revised in 2001 and was repealed and replaced by the Arbitration Act, 2012 (the “2012 Act”). The 2012 Act provides:
“ Award may be enforced like judgment or order of court
72. (1) An award made by the arbitral tribunal pursuant to an arbitration agreement may, with leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect.
(2) Where leave is given, judgment may be entered in terms of the award.
(3) Leave to enforce an award shall not be given where, or to the extent that, the person against whom it is sought to be enforced shows that the arbitral tribunal lacked jurisdiction to make the award.
(4) Nothing in this section affects the recognition or enforcement of an award under any other written law or rule of law and in particular the provisions of the Foreign Arbitral Awards Enforcement Law, 1997 relating to the recognition and enforcement of awards under the New York Convention or by an action on the award.
(5) An arbitral award, irrespective of the country in which it was made, shall be recognised as binding and, upon application to the court, shall be enforced subject (whether or not it is a convention award) to the provisions of sections 6 and 7 of the Foreign Arbitral Awards Enforcement Law, (1997 Revision).” [Emphasis added]
The effect of section 72(4) appeared to me to be that as far as the enforcement of awards under the FAAEA is concerned, the reference in section 5 to section 22 of the former Arbitration Act continues to have legal force and effect. As far as refusal of enforcement is concerned, the FAAEA provides in salient part as follows:
“ Refusal of enforcement
7. (1) Enforcement of a Convention award shall not be refused except in the cases mentioned in subsections (2) and (3).
(2) Enforcement of a Convention award may be refused if the person against whom it is invoked proves —
(a) that a party to the arbitration agreement was (under the law applicable to him) under some incapacity;
(b) that the arbitration agreement was not valid under the law to which the parties subjected it or, failing any indication thereon, under the law of the country where the award was made;
(c) that he was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case;
(d) subject to subsection (4), that the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration or contains...
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