It is common for such determination to be documented in resolutions, written consents or meeting minutes. The relevant documentation should be provided to the entity's registered office for placement on the minute book. If in-house adoption and maintenance has been elected, the entity is responsible for implementing and documenting the adoption of the policies, procedures and requirements in compliance with the AML Regime. If the FSP elects to delegate its obligations under the AML Regime to a service provider, it should carefully consider the proposed outsourcing arrangements, including clear delineation of functions and responsibilities, as well as assess any risks which such delegation may pose.
Where the associated risks cannot be effectively managed and mitigated, the FSP should not enter into the outsourcing arrangement. The FSP should conduct appropriate due diligence on the proposed delegate to ensure that it is fit and proper to perform the delegated function. It is possible for a FSP to delegate its obligations to a service provider not located in the Cayman Islands. In such case, the standards to which the delegated functions are to be provided must be at least as stringent as those required under the AML Regime, meaning that where the outsourcing arrangement is being operated in a country other than the Cayman Islands where standards are lower, the delegate must adopt the Cayman Islands standards.
An "accredited institution" can be interpreted fairly broadly to include audit firms, law firms and compliance administrators. It is not intended to be legal advice. For assistance with or questions on any of the above matters, please liaise with your usual contact at CCCS or any of the attorneys at Collas Crill.
Setting the Stage
Actions for FSPs i. Download PDF. Charlotte Cloete Managing Director. The Cayman Islands is therefore well set up to attract clients from jurisdictions whose legal systems have a reputation for judicial corruption or where there is no clear separation of powers between the executive and the judiciary. The cost associated with litigation in the Cayman Islands is comparable to other jurisdictions that enjoy the benefits of a highly developed legal system but typically less than London and New York , although costs incurred on any given dispute will, of course, ultimately depend on the complexity of the issues that fall to be determined and the manner in which the parties litigate the case.
GTDT: Discuss any notable recent or upcoming reforms or initiatives affecting court proceedings in your jurisdiction.
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In that decision, the Grand Court approved third-party funding of commercial litigation in a case that falls outside of the typical insolvency context and in doing so provided useful guidance on the factors that the court will consider when asked to decide whether a funding agreement is unenforceable as a matter of public policy. This decision represents an incremental step towards the increasing availability of litigation funding in the Cayman Islands, which has also been the subject of proposed legislative reform in recent years.
In late , the Law Reform Commission submitted a discussion paper on conditional and contingency fee arrangements pursuant to a referral from the Attorney General and a call by the Court of Appeal for an examination of the law governing such agreements in the Cayman Islands, with a view to reform.
The paper examined the development of conditional and contingency fee arrangements in other commonwealth jurisdictions and other types of litigation funding such as before-the-event insurance, after-the-event insurance and litigation funding agreements. The Bill provides for contingency fee agreements that comprise the US-style agreement, as well as conditional fee-style agreement and provisions for third-party funding.
The Bill would also abolish the torts and offences of maintenance and champerty and follows the approach taken in relation to these issues in other common law jurisdictions.
How to Make Effective Legislative Proposals: Cayman Islands Legislative Process
Both legal practitioners and commercial funders await further progress in GTDT: What have been the most significant recent trends in arbitral proceedings in your jurisdiction? In doing so, the court confirmed that it will hold parties to their contractual bargain and reinforces confidence in the Cayman Islands as a pro-arbitration jurisdiction.
GTDT: What are the most significant recent developments in arbitration in your jurisdiction? Prior to , arbitration proceedings in the Cayman Islands were governed by the Arbitration Law Revision , a piece of legislation that was heavily influenced by the English Arbitration Act That legislation was ill-suited to the demands of modern international arbitration.
kinun-houju.com/wp-content/qekyvidag/2695.php Ultimately, it was considered that the Arbitration Law Revision did not do enough to make arbitration a more attractive method of dispute resolution than normal legal proceedings in the Grand Court. For example, under that law there was no obligation on the courts to stay proceedings commenced in breach of an arbitration agreement but merely a discretion to do so.
The courts also had wide-reaching powers to review and overrule arbitral awards, which resulted in such awards being perceived as non binding and potentially open to challenge. One thing that all successful arbitration centres have in common is a supportive but non-interventionist judiciary that understands the need to support the arbitral process with minimal intervention. This was recognised and addressed by the Cayman Islands legislature, which enacted the Law, ceding greater powers to the arbitral tribunal.
The Grand Court Rules Orders 72 and 73 provide procedural rules for arbitration-related court applications, which must be commenced in the Financial Services Division of the Grand Court. These rules expressly provide for a stay of legal proceedings commenced in breach of an arbitration agreement and an arbitration agreement will only be unenforceable in limited circumstances for example, where it is void, voidable or otherwise unenforceable.
Accordingly, repudiation, frustration or rescission of a contract is insufficient to prevent the enforceability of an agreement to arbitrate and these issues will instead fall to be determined by the arbitral tribunal.
The development of a legislative framework that was designed with modern international arbitration in mind demonstrates the strong support that exists from the Cayman Islands government for promoting the jurisdiction as an international arbitration centre. What are the current ADR trends? Do particular commercial sectors prefer or avoid ADR?
How to Make Effective Legislative Proposals: Cayman Islands Legislative Process
While the Cayman Islands have a number of experienced accredited mediators, informal mediation is infrequently used to settle large commercial disputes arising out of the financial services industry. If a commercial dispute cannot be resolved by negotiation between the parties it will often proceed to be determined by the court. The use of mediation in the Cayman Islands is primarily confined to family cases, where its increasing popularity and success resulted in new rules being introduced that require mandatory mediation for all new family cases, including divorce matters and all matters involving the welfare of a child apart from cases in which the state has had to intervene.
As the pre-eminent offshore jurisdiction for private equity funds, we see a large number of complex, high-value and high-profile disputes involving investment funds that either invest in emerging markets such as China or the Middle East or have investors from those regions.
Describe the approach adopted by the courts in your jurisdiction towards contractual interpretation: are the courts faithful to the actual words used, or do they seek to attribute a meaning that they believe the parties actually intended? The principles of contractual construction under Cayman law are essentially the same if not the same as under English law. The starting point is to consider whether the words used are clear and unambiguous.
What piece of practical advice would you give to a potential claimant or defendant when a dispute is pending? Litigation should be a commercial decision, not an emotional one. It is essential to be able to articulate a clear commercial rationale for each step that is taken. Clients should have a defined and realistic objective of what they want to achieve from the process and seek advice as to how that objective can be achieved in the most time and cost effective manner. Clients should also seek a detailed cost benefit analysis of the process and have a clear understanding of the point at which risks and costs may outweigh any potential upside.