Gol Linhas Aereas S.A (formerly VRG Linhas Aereas S.A.) (Respondent) v MatlinPatterson Global Opportunities Partners (Cayman) II L.P. and others (Appellants) (Cayman Islands)
Case ID: JCPC 2020/0086
Jurisdiction: Court of Appeal of the Cayman Islands
Whether a Brazilian arbitral award made against the Appellants in favour of the Respondents should be refused recognition and enforcement in the Cayman Islands.
The Respondent obtained an arbitral award (the "Award") against the Appellants. The Award arose from the acquisition of a Brazilian airline by an entity of which the Respondent is the legal successor under Brazilian law from certain subsidiaries of the First and Second Appellants. The Third Appellant is the general partner of the First and Second Appellants which are referred to as the "MP Funds". The acquisition took place pursuant to a Share Purchase and Sale Agreement dated 28 March 2007 governed by Brazilian law (the "PSA"). The PSA contained an arbitration agreement (the "AA"). The Appellants were not parties to the PSA but the MP Funds were signatories to an "Aditamento" to the PSA containing certain non-compete obligations.
The MP Funds challenged the jurisdiction of the arbitral tribunal claiming that they were not parties to the PSA. The tribunal found against them on this on the basis that it had jurisdiction over the MP Funds because they were parties to the Aditamento. It then proceeded to make the Award against them, amongst others. The MP Funds sought to set aside the Award through the Brazilian courts but were unsuccessful, having exhausted their rights of appeal
The Respondent obtained permission ex parte to enforce the Award against the MP Funds in the Cayman Islands on 26 October 2016. That permission was set aside on the MP Funds’ application on 19 February 2019. That order was itself set aside on appeal by the Cayman Islands Court of Appeal ("CICA") on 11 August 2020. The MP Funds now appeal to the Privy Council as of right on the basis that: (i) they are not issue estopped from denying that they were parties to the AA and/or that the issues in the arbitration were beyond the scope of the AA if they were; (ii) the CICA was wrong to find that the enforcement of the Award was consistent with Cayman standards of due process and public policy; (iii) the claim for tortious damages (which founded the Award) did not fall within the scope of the submission to arbitration; and (iv) the CICA failed to consider whether the scope of the AA was limited to the non-compete obligations in the Aditamento.
MatlinPatterson Global Opportunities Partners (Cayman) II L.P and others
Gol Linhas Aereas S.A (formerly VRG Linhas Aereas S.A.)
Lord Kitchin, Lord Hamblen, Lord Lloyd–Jones, Sir Julian Flaux
Hearing start date
8 March 2022
Hearing finish date
9 March 2022
|8 March 2022||Morning session||Afternoon session|
|9 March 2022||Morning session|
19 May 2022
 UKPC 21