In the recent Cayman Islands case of ArcelorMittal USA LLC v Essar Global Fund Limited & Anor, ArcelorMittal sought disclosure of documents and information from the defendants relating to its claim to enforce a foreign arbitral award against another Essar entity, not domiciled in Cayman. The decision confirms that the common law jurisdiction of the Grand Court to grant Norwich Pharmacal relief (NPR) in aid of foreign proceedings is not necessarily excluded by the statutory remedy provided by the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978. This point had not been directly considered before under Cayman law. NPR is available at common law against third parties who, whether innocently or otherwise, have become mixed up in wrongdoing committed by another against the plaintiff. We have previously blogged about NPR on 25 March 2019.
ArcelorMittal sought relief in Cayman to assist with enforcement of an ICC Arbitral Award it obtained against Essar Steel Limited (a Mauritian company), now in excess of US$1.5 billion. Despite enforcement efforts in various jurisdictions, Essar Steel has not paid the award. NPR was granted ex parte and upheld on the return date, although the judge, Justice Kawaley, varied the order in some respects.
The judgment provides welcome guidance on the principles that apply when NPR is sought in aid of foreign proceedings:
- It is not necessary to have obtained leave from the Cayman court to enforce the foreign award pursuant to section 5 of the Foreign Arbitral Awards Enforcement Law (1997 Revision) in order to rely on the foreign award in evidence in support of the NP application.
- A statutory remedy may extinguish a common law remedy, but the Evidence Order does not necessarily eliminate the common law NP jurisdiction. The question is whether the remedies cover precisely the same ground. The factual and legal matrix of each case will usually shape the analysis as to whether the statutory remedy covers precisely the same ground as the common law remedy. A potential overlap would occur if the proceedings in which it is proposed to deploy the information sought had already been commenced, but this was not the case here. Where the Plaintiff does not yet have sufficient information to commence substantive remedial proceedings and there may be a risk of loss or destruction of information, the statutory Evidence Order remedy is not an effective alternative remedy that precludes NPR.
- Taking deliberate steps to avoid enforcement of a foreign arbitral award amounts to actionable wrongdoing for the purposes of seeking NPR. It is not necessary for local enforcement proceedings to have been commenced or that there is wrongdoing within the jurisdiction. The jurisdictional anchor which provides the gateway for the Plaintiff to seek common law relief in Cayman is the fact that the Defendant is domiciled in Cayman.
Harneys acted for ArcelorMittal USA LLC in the proceedings.