United States Courts

California, Evidence, United States Courts

(Pepperdine Caruso School of Law)/ /Leave a comment

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…

2023 in Review, SCOTUS, Section 1782 Discovery, United States, United States Courts

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In 2023, the United States courts expanded the role of international arbitration under existing law and wrestled with the application of new arbitration law and fact patterns.  This post reviews some highlights and looks forward to developments anticipated during 2024. At the top, the United States Supreme Court delivered significant rulings in Coinbase Inc,. v….

Section 1782 Discovery, United States, United States Courts, USA

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Prior to the Supreme Court’s decision in ZF Automotive US, Inc. v. Luxshare, Ltd., 142 S. Ct. 2078 (June 13, 2022), certain Circuits permitted parties to private international commercial arbitrations to avail themselves of U.S. discovery proceedings via 28 U.S.C. §1782 (“§1782” or “Section 1782”).  The Supreme Court’s decision in ZF Automotive removed that option….

Supreme Court, United States, United States Courts

(Chaffetz Lindsey LLP)/ /Leave a comment

On 22 June 2023, the Supreme Court of the United States issued an opinion in the combined cases of Yegiazaryan v. Smagin et al. and CMB Monaco v. Smagin et al., Case Nos. 22-381 & 22-383 (U.S.).  The case resolves divergent lower appellate rulings in the United States over whether a non-U.S. domiciliary may sustain a…

Bolivia, New York Convention, New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Public Policy, United States Courts, USA

, , (Wilmer Cutler Pickering Hale and Dorr LLP)/ /Leave a comment

In an important decision upholding the finality of awards and party autonomy in international commercial arbitration, a divided three-member panel of the U.S. Court of Appeals for the Tenth Circuit recently held in Compañía de Inversiones Mercantiles SA v. Grupo Cementos de Chihuahua SAB de CV (58 F.4th 429 (10th Cir. 2023)) that recognition of…

CJEU, Energy Charter Treaty, European Convention on Human Rights, Investment, Paris Court of Appeal, Set aside an arbitral award, Stay of Proceedings, United States Courts

(ICC International Court of Arbitration) and , (Mayer Brown)/ /Leave a comment

On 10 January 2023, the Paris Court of Appeal (“Paris CoA”) set aside the 50+ million USD UNCITRAL award rendered in the dispute between Komstroy (before Energoalians LLC, and now Stileks Scientific and Production Firm LLC (“Stileks”)) and the Republic of Moldova. The referring court applied the ruling rendered by the Court of Justice of…

2022 in Review, Employment arbitration, Section 1782 Discovery, United States, United States Courts

, (Freshfields Bruckhaus Deringer US LLP)/ /Leave a comment

2022 was a busy year for the United States Supreme Court’s arbitration docket. The Court spent significant time defining the role of federal courts in arbitration-related litigation: it curbed Section 1782 discovery in support of international arbitration, limited the preferential treatment given to arbitration over litigation, protected the right to individualized arbitration, and limited the…

Due process, Section 1782 Discovery, Uncategorized, United States, United States Courts

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28 U.S.C. § 1782(a) allows U.S. federal district courts to order discovery against any person or entity “found” in the U.S. “for use” in a proceeding in a “foreign or international tribunal” upon application by “any interested person.”  In 2004, the U.S. Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc. held that the…

Enforcement of an award that was set aside, New York Convention, Sovereign Immunity, United States Courts

(Diaz, Reus & Targ, LLP)/ /Leave a comment

The permissive language of Article V(1)(e) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) continues to tease parties challenging recognition and enforcement of arbitral awards with the prospects of success.  That is the case for Nigeria in its latest efforts to fend off the confirmation of a…

Evidence, SCOTUS, Section 1782 Discovery, United States Courts, USA

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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). …

Interviews with Our Editors, New York, New York Arbitration Week, United States, United States Courts

(Law Offices of Kiran N Gore PLLC; The George Washington University Law School) and (New York International Arbitration Center)/ /Leave a comment

Benno Kimmelman is an independent arbitrator and active in the New York arbitration community. He teaches international arbitration and international litigation courses at Brooklyn Law School, Georgetown University Law Center, and American University’s Washington College of Law. Edna Sussman is a New York-based arbitrator and mediator. She is the Distinguished ADR Practitioner in Residence at…

Awards, Enforcement, Latin America, New York Arbitration Week, United States Courts, USA

, (Skadden, Arps, Slate, Meagher & Flom LLP)/ /Leave a comment

On November 16, 2021, during New York Arbitration Week 2021, several committees of the New York City Bar Association hosted a panel discussion entitled “Dispelling Myths:  Enforcement of Latin American Arbitration Awards in the United States and U.S. Arbitration Awards in Latin America,” which focused on enforcement of foreign arbitral awards in the United States,…

New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Null and void, United States, United States Courts, USA

(Musick, Peeler & Garrett LLP)/ /Leave a comment

In CLMS Mgmt. Servs. et al. v. Amwins Brokerage et al., the U.S. Court of Appeals for the Ninth Circuit considered whether a state law (by operation of the federal McCarran-Ferguson Act, which gives states the authority to regulate the business of insurance) voiding arbitration agreements in insurance contracts reverse-preempted Article II, Section 3 of…

Arbitration Agreements, Litigation, SCOTUS, United States, United States Courts

(Wilmer Cutler Pickering Hale and Dorr LLP)/ /2 Comments

John Steinbeck’s classic novella, “Of Mice and Men,” took a modern day form in the U.S. Supreme Court earlier this week – appropriately enough, for purposes of this blog, in an arbitration matter.  As others have commented on social media, during oral argument in Badgerow v. Walters, Case No. 20-1143 (U.S. S. Ct.), the Supreme…

Discovery, SCOTUS, Section 1782 Discovery, U.S. Supreme Court, United States Courts

, , (Freshfields Bruckhaus Deringer LLP)/ /Leave a comment

Much has been written about the U.S. Supreme Court case Servotronics Inc. v. Rolls-Royce PLC, which concerns the scope of 28 U.S.C. § 1782 (“Section 1782”). This interest is not surprising given this was set to be the first time in 17 years that the U.S. Supreme Court (the “Court”) would consider the scope of…

Arbitration Agreement, Choice of Law, New York Convention, Non-signatory, United States, United States Courts

, (Herbert Smith Freehills LLP)/ /Leave a comment
Herbert Smith Freehills

The United States Supreme Court’s June 2020 decision in GE Energy Power Conversion France SAS v. Outokumpu Stainless USA, LLC (“GE Energy“) made clear that, under U.S. law, a non-signatory to an arbitration agreement may invoke equitable estoppel to compel arbitration under Article II(3) of the United Nations Convention on the Recognition and Enforcement of…

France, Netherlands, Paris Court of Appeal, Recognition and enforcement of arbitral award, Russia, State entity, Uncategorized, United States, United States Courts, Yukos

(Russian Arbitration Association)/ /Leave a comment

The dispute between the former owners of the Yukos oil company and the Russian Federation concerning damages of more than US$50 billion is the largest in the history of arbitration. With thousands of pages written on the topic, the dispute has been summarized in earlier posts (see, amongst others, here and here). Following three arbitrations…

Brazil, Public Entities, Shareholders Arbitration, United States Courts

(Tribe Arbitration and St Mary's University)/ /Leave a comment

The recent crisis between the Brazilian president Jair Messias Bolsonaro and the Brazilian national oil company Petrobras may result in a wave of investors’ claims submitted to arbitration against the Brazilian Federal Government for abuse of controlling power and breach of fiduciary duties under the Brazilian Companies Act 1976. During a live broadcast on February…

Investor-State arbitration, ISDS, SCOTUS, United States, United States Courts

(Hecht Partners LLP)/ /3 Comments

Investor-state international arbitration may provide a way forward for Survivors and their heirs after the U.S. Supreme Court’s decision denying claims in two restitution cases regarding Holocaust-era stolen property:  Federal Republic of Germany v. Philipp (for return of Medieval art stolen by the Nazis) along with the companion case of Republic of Hungary v. Simon…

Consumer disputes, Employment arbitration, SCOTUS, Section 1782 Discovery, United States, United States Courts, USA

(Musick, Peeler & Garrett LLP), , and (Law Offices of Kiran N Gore PLLC; The George Washington University Law School)/ /Leave a comment

U.S. Supreme Court Justice Ruth Bader Ginsburg (1933-2020), known only as “RBG” in many circles, was a native of Brooklyn, New York and only the second woman appointed to the U.S. Supreme Court bench. Her passing in September 2020, at the age of 87, left a gaping hole in the international community. She was widely…

Arbitrability, kompetenz-kompetenz, United States, United States Courts, USA

(Musick, Peeler & Garrett LLP)/ /Leave a comment

Recently, the U.S. Court of Appeals for the Third Circuit (the “Third Circuit” or the “Court”) addressed what it referred to as a “mind-bending” and “seemingly circular” question “dubbed ‘the queen of all threshold issues’ in arbitration law:” whether a court or arbitrator(s) decides if an agreement exists when the alleged agreement itself “includes an…

Discovery, SCOTUS, Section 1782 Discovery, United States Courts

(MacGrath Arbitration) and (Omni Bridgeway)/ /Leave a comment
ArbitralWomen

On 22 September 2020, the U.S. Court of Appeals for the Seventh Circuit joined the Second and Fifth Circuits1)The Seventh Circuit includes the U.S. federal district courts of Illinois, Indiana, and Wisconsin. in narrowly interpreting the statutory language “foreign or international tribunal” in 28 U.S.C. § 1782(a), holding that Section 1782 does not authorize U.S. discovery for…

kompetenz-kompetenz, United States, United States Courts, USA

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Young ITA

Awards are final—mostly. Many institutional rules allow arbitrators to correct clerical errors in their awards, but prohibit revisions to the merits of their decisions. The U.S. Court of Appeals for the Fifth Circuit signaled in a recent case that it will defer to arbitrators in interpreting institutional rules regarding the scope of their correction authority,…

Estoppel, International Court of Justice, Lotus Principle, New York Convention, New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Non-signatory, Permanent Court of Arbitration, Permanent Court of International Justice, SCOTUS, United States, United States Courts, USA

(Hughes Hubbard & Reed)/ /Leave a comment

On June 1, 2020, the United States Supreme Court issued its opinion in GE Energy Power Conversion France SAS v. Outokumpu Stainless USA. The Court held that the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) does not prohibit a Contracting State from applying the domestic law doctrine…