Expert witness evidence plays a pivotal role in the outcome of arbitrations, particularly in construction disputes. Rarely do construction disputes turn on significant differences between the parties’ versions of the facts, which are flushed out under dramatic, Boston Legal-style cross-examination. More often, it is the skilful application of settled facts by the parties’ legal counsel…

In McConnell v. Advantest Am., Inc., the 4th District Court of Appeal in California (the “Court”) vacated an arbitral order compelling nonparties to appear at a discovery hearing for the sole purpose of receiving documents allegedly in their possession. 92 Cal. App. 5th 596. The subpoenas asked the nonparties to produce their communications with the…

Evidence is the beating heart of almost every dispute, and there is no exception in international arbitration. Therefore, the ‘Evidence in International Arbitration Report’ (Report) recently released by the Australian Centre for International Commercial Arbitration (ACICA) and FTI Consulting on 6 September 2023 will be invaluable for arbitration users looking to test and improve their…

On November 15, 2023, during the 5th annual New York Arbitration Week, White & Case LLP hosted an event covering the possibility of obtaining evidence from non-parties to an international arbitration following the 2022 U.S. Supreme Court decision in ZF Automotives US Inc. v. Luxshare, Ltd., 596 U.S. ___ (2022) (“ZF Automotives”).  In that decision,…

The rapid growth of international arbitration in the Asia-Pacific has sparked many discussions about how different cultural practices and legal traditions impact advocacy in cross-border disputes (see, for example, Global Arbitration Review’s The Guide to Advocacy). On 3 August 2023, ACICA45 and King & Wood Mallesons in Sydney hosted a session titled “Clash of Cultures…

As set out in our last blog post on evidentiary issues in international arbitrations, the treatment of evidence within the field of international arbitration is oftentimes inconsistent and even unpredictable from one arbitral tribunal to another, a divide which becomes even more pronounced when considering the different approaches that may be adopted due to a…

In June of this year, the Supreme Court of the United States issued a unanimous opinion (ZF Automotive US, Inc. v. Luxshare, Ltd., available here) settling a circuit-split regarding the interpretation of 28 U.S.C. § 1782. The provision grants U.S. federal courts the authority to compel testimony or the production of documents to aid “foreign…

After two years of absence due to COVID-19, the Dutch Arbitration Association held its eighth conference on 2 June 2022 in Amsterdam. The main theme of this year’s conference was fraud and corruption in arbitration. This blog reflects the main issues of the keynote speech and the panel debates of the conference. We will not…

On June 13, 2022, the U.S. Supreme Court issued its unanimous opinion resolving a U.S. Circuit Court split over a hotly debated issue, namely whether 28 U.S.C. § 1782 applies to private foreign or international arbitrations. In ZF Automotive US, Inc. v. Luxshare, Ltd., 596 U.S. ___ (2022), the Supreme Court was required to decide whether…

The Kluwer Arbitration Blog previously published an excellent summary by Jonathan Tompkins of the oral arguments held before the United States Supreme Court on March 23, 2022 on the future scope and application of 28 U.S.C. §1782, a federal statute that allows foreign or international tribunals and their litigants to ask the relevant district court…

Generally, the choice of substantive law applicable to a particular contract will affect the outcome of a case.  It is common, however, for the evidentiary and interpretive rules to also have important implications for a case’s outcome.  Arbitral rules leave such matters to a tribunal’s discretion that can be exercised in different ways.  For instance,…

Kluwer Arbitration Blog has given ample attention over the years to 28 U.S.C. § 1782—the US federal statute authorizing federal district courts to order individuals and entities within their districts to provide evidence to “interested person[s]” for use “in a proceeding in a foreign or international tribunal.” (see, for example, here, here, here, here, and here). …

Introduction Document production has become a standard phase in international arbitration, but the documents sought and produced often turn out to be voluminous. As such, document production is perceived as a time-consuming, costly, and burdensome process. This has prompted practitioners to come up with the Rules on the Efficient Conduct of Proceedings in International Arbitration (“Prague…

Since its establishment in 2018 by the Chamber of Commerce and Industry of Uzbekistan, the Tashkent International Arbitration Centre (the “TIAC”) has kept abreast the evolution of the global social and economic climate and modern international arbitration practices, and sought to modernize its administration of international arbitrations to meet current and future challenges faced by…

On 27 October 2021, Young ITA organised an event on the topic of “The Psychology of Witness Evidence and its Role in Tribunal Decision-Making”, hosted by Allen & Overy in London. Katrina Limond (Young ITA UK Chair, Allen & Overy London) and Robert Bradshaw (Young ITA UK Vice-Chair, Lalive London) led a roundtable discussion panelled…

Much ink has been spilled on the 2014 Yukos arbitral awards, and rightfully so. They are notorious for collectively breaking the previous record for the largest arbitral award in history. Their magnitude (these were, in the tribunal’s words, “mammoth arbitrations”) also commands our attention, as do the issues at stake and the multiple companion arbitrations…

An emerging consideration in international arbitration is the use of evidence acquired illegally. Illegally obtained evidence can take a variety of forms, including, for example, illicit recordings, information obtained by trespass, and ‘hacked evidence’. ‘Hacked evidence’ refers to materials obtained through unauthorised access to an electronic system (either directly or through a third party), and…

The practice of adverse document production or disclosure is largely foreign in civil law jurisdictions like mainland China. Despite resistance, the growth of judicial practice on document production prompted the Supreme People’s Court of China (“SPC”) to make the new Rules of Evidence on Civil Procedure (“Rules of Evidence”) on December 25, 2019, effective as…

In today’s busy and increasingly digitized world, pictures are the new words. The average human attention span has grown shorter and become more selective. In every facet of society, from the consumer landscape to business meetings, visual storytelling has emerged as key to delivering captivating content that commands a person’s undivided attention. This trend can…

It is often said that flexibility is a cornerstone of international arbitration and that the tribunal (typically in consultation with the parties) is the master of how the proceedings are to be conducted. Yet, it remains unsettled whether certain specific rules of procedure or evidence must be complied with in arbitration – sometimes, at the…

Introduction  The Prague Rules have been widely discussed over the past few months, among others, on this blog.1)Posts on the topic of the Prague Rules can be found here, here, here, here, here, here, here, here and here. Yet, to the knowledge of the authors, none of those discussions has specifically addressed the application of…

The Latin Lawyer – GAR Live 3rd Annual Arbitration Summit took place on Tuesday, April 30, 2019 (the “Summit”). Practitioners from the United States and Latin America gathered for a third consecutive year in Miami to discuss the importance of dispute boards in constructions contracts, the issue of social licenses, the challenges facing the energy…

The publication of the Rules on the Efficient Conduct of Proceedings in Arbitration (“Prague Rules”) on 14 December 2018 heralded a challenge to the well-established incumbent (i.e. the International Bar Association (“IBA”) Rules on the Taking of Evidence (“Evidence Rules”)) and prompted much debate amongst the arbitral community, including at least six posts on this…

Arbitral tribunals have, in various instances, allowed parties to rely on documents obtained illegally as evidence. Practically, however, such documents are of a privileged character, e.g. emails exchanged between attorneys and clients, any information related to a set of confidential proceedings or communications between a psychotherapist and a patient. Privileged documents deserve higher legal protection…