Privy Council considers the enforcement of foreign arbitral awards in the Cayman Islands

On 19 May 2022, the Privy Council's judgment in Gol Linhas Aereas SA (formerly VRG Linhas Aereas SA) (Respondent) v MatlinPatterson Global Opportunities Partners (Cayman) II LP and others (Appellants) (Cayman Islands) [2022] UKPC 21 provided guidance on the appropriate standard of due process to apply when considering challenges to enforcement of arbitration awards under the New York Convention.

The ruling unanimously upheld a decision of the Cayman Islands Court of Appeal to permit enforcement of a New York Convention award made in an ICC arbitration seated in Brazil, notwithstanding the debtor's arguments that (i) it was not a party to the arbitration agreement, (ii) there had been procedural defects in the arbitration hearing that afforded a right to resist enforcement, and (iii) that the ultimate award had been outside the scope of the submission to arbitration.

More interestingly, on the second of those issues the Board held that the parties had been afforded a sufficient opportunity to present their case despite the Tribunal having based its decision on a point of law which was not raised in the course of the arbitration hearing, and which was then not raised by the Tribunal with the parties to invite their comments prior to issuing its decision. As such, the resisting debtor had no opportunity to address the issue in argument.

Notwithstanding that position, the Board permitted enforcement of the award in the Cayman Islands because the tribunal made its decision on a factual basis which was well understood by the parties and fully argued during the hearing–the only failure was to afford the parties an opportunity to make legal arguments. A distinction was drawn between cases in which a party was denied the opportunity to answer a significant factual allegation or evidence (which the Board considered to be "…fundamentally unfair") and cases where the complaint related to legal reasoning. It was noted that in civil law jurisdictions courts frequently took a more proactive approach to applying the law than was familiar in common law systems – "…it is expected that the judge will bring his or her own knowledge of the law to bear in deciding a case, independently and in addition to the legal arguments and materials adduced by the parties".

It was accepted that that as a general rule of Brazilian law, a tribunal was not obliged to inform the parties that a particular legal theory or legal rule would be applied prior to making a decision on the basis of that theory or rule, and as such there had not been any violation of due process. The Board were at pains to point out that in looking at the standard of fairness that should be applied to international arbitration, whilst it was not simply a search for the lowest common denominator of standards in differing national systems, the court should attempt to identify a set of minimum requirements which would "generally, even if not universally, be regarded throughout the international legal order as essential to a fair hearing". What was not an adequate basis for challenge was merely demonstrating that the process did not conform with the approach to due process in the legal culture of the state where the award was sought to be enforced.

As such, whilst candidly accepting that the case was a difficult one, the Board ultimately therefore held that the parties had been given an adequate opportunity to present their case before the Tribual (and subsequently the courts in Brazil), and thus that the Cayman Islands Court of Appeal was correct to enforce the arbitration award in the Cayman Islands. In order to justify a conclusion that a party had been denied the opportunity to present its case, it was said that "..what is required is proof, not merely that a procedure was adopted which was irregular or undesirable, but of fundamental unfairness which goes to the essence of the right to be heard".

Whilst issued in the context of enforcement in the Cayman Islands, this decision will be of interest to practitioners in all common law jurisdictions who have implemented the New York Convention.

Nick DunnePartnerT +1 345 814
Adrian FourieAssociateT +1 345 914 6345

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