The chasm between the Section 1782 and arbitration worlds just got wider. In Webuild S.p.A. v. WSP USA Inc. (“Webuild S.p.A.”), the Second Circuit determined that a tribunal in an arbitration administered by the International Centre for Settlement of Investment Disputes (“ICSID”) was not a “foreign or international tribunal” under Section 1782, the U.S. federal…
A dual webinar series “Do You Know What Your Neighbour is Doing?” (available at links here and here) recently hosted by Dentons provided an overview of how to navigate international arbitration in the United States (“US”) and Canada. The first webinar was moderated by Rachel Howie, FCIArb (Calgary). It featured three panelists who discussed international…
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…
Les notions, essentiellement philosophiques, de volonté et de liberté sont au cœur de la matière. – Emmanuel Gaillard Arbitration is a form of private dispute resolution. Parties arbitrate disputes through a private system created of their own will and liberty, contractually exiting the public, state-controlled system of dispute resolution. Whilst there are many different…
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…
Hello, World! Big Tech is a term more commonly used to describe the largest and most dominant technology companies. No doubt Big Tech’s technology has been making extensive and significant impact on our day-to-day lives. The impact of arbitration tech on the arbitration world has also been noticeable. As our readers would know our…
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…
Document production in China – getting to maybe Document production (also known as “discovery”) is still a very foreign concept in China’s civil law court system. The traditional notion of “who claims, proves” (“谁主张，谁举证“) in China’s Civil Procedural Law has ingrained in people’s mind that one has to prove its case by its own evidence….
The availability and scope of ‘discovery’ or document production significantly differs across jurisdictions, most notably when comparing litigation in common law and civil law courts. In the field of international arbitration, the compromise position adopted by the International Bar Association’s Rules on the Taking of Evidence in International Arbitration is to permit disclosure of documents…
A California district court held in February that 28 U.S.C. Section 1782 could be used to seek discovery for use in a private, commercial arbitration, becoming the first district court in the Ninth Circuit to do so, and, following recent decisions in the Sixth and Fourth Circuits, potentially teeing up an even more pronounced split…
A short statute that it is, 28 USC § 1782 has given rise to prolific litigation. For years, litigants have been debating its import and courts have been dissecting its key terms: to name a few, the nature of the proceeding in aid of which discovery may be sought (see posts here, here, and here),…
Introduction Abdul Latif Jameel Transportation Co. Ltd. v. FedEx Corp., decided by the U.S. Court of Appeals for the Sixth Circuit earlier this month, is arguably the first post-Intel decision from the U.S. Court of Appeals that “permits discovery for use” in a “private commercial arbitration” under 28 U.S.C. § 1782(a). (Case No. 19-5315, at…
Corruption in the context of international arbitration is at the forefront of current discussion and analysis. At the same time, innovative efforts to obtain evidence in the U.S. through 28 USC § 1782 to support or counter a wide variety of international (i.e. non-U.S.) cases continue to evolve (including its recent extraterritorial application discussed more…
Key developments in international arbitration in 2018 were the focus of an end-of-the-year conference held on Wednesday, 19 December 2018, organized by CIArb YMG, the young members’ group of the Chartered Institute of Arbitrators, and Young ITA, the young members’ group of the Institute for Transnational Arbitration. The event’s faculty members were Alexander G. Leventhal…
The Prague Rules on the Efficient Conduct of Proceedings in International Arbitration will be officially launched this week (December 14). This set of rules of evidence and procedure formulated from civil law practices has already generated a substantial and healthy debate within the international arbitration community, including here on the Kluwer blog, on whether they…
On May 29, 2010, the International Bar Association (“IBA”) adopted the IBA Rules on the Taking of Evidence in International Arbitration (“IBA Rules”), a revised version of the original 1999 version which, in turn, had replaced the IBA Supplementary Rules Governing the Presentation and Reception of Evidence in International Commercial Arbitrationof 1983. Even though the…
The 10th panel session of the ICCA Sydney Congress 2018 with The Honourable P A Bergin, Singapore International Commercial Court; Dr. Shen Hongyu, Supreme People’s Court (China); Flip Petillion, Petillion (Belgium); and Henri C. Alvarez, Vancouver Arbitration Chambers (Canada) and moderated by Stephen L. Drymer, Woods LLP (Canada), continued this year’s theme of evolution and…
The U.S. District Court for the Southern District of New York has enforced a P&I Club’s internal claims appeal process as a legally binding alternative dispute resolution (“ADR”) method, rejecting allegations brought by one the Club’s Members that the procedure was “fundamentally unfair.” TransAtlantic Lines LLC v. Am. Steamship Owners Mut. Prot. & Indemn. Ass’n,…
Despite the heavy workload, practicing international arbitration can be fun; you are always challenged by disputes arising from a diversity of issues that test your ability to design the best strategy to achieve the best possible outcome for your client, combined with the complexity that a single case can reach and the many instances in…
Section 1782 has become the weapon of choice for international litigants seeking discovery in aid of foreign proceedings. Section 1782 allows an “interested person” to apply for discovery over a person or entity “found” in the U.S. “for use” in a proceeding “in a foreign or international tribunal.” Significant uncertainty exists, however, in whether Section…
by Reto Marghitola, Vischer AG Document production, the topic of my new book, is a permanent issue in international arbitration. Now, it has even entered the fictional world of the Willem C. Vis International Commercial Arbitration Moot. Document production is an important subject matter of this year’s competition. Many of the readers of this post…
Former U.S. Defense Secretary Donald Rumsfeld famously introduced into the American lexicon the oxymoronic concept of the “known unknown”—“that is to say we know there are some things we do not know.”1)See Michiko Kakutani, Rumsfeld’s Defense of Known Decisions, N.Y. TIMES (Feb. 3, 2011), https://www.nytimes.com/2011/02/04/books/04book.html?pagewanted=all&_r=1& (reviewing DONALD RUMSFELD, KNOWN AND UNKNOWN: A MEMIOR (2011)). A…
The views expressed are those of the author alone. Technology in arbitration is of course a vast subject which has been addressed extensively by a number of writers. This article focuses briefly on the issue of reducing paper in arbitrations. It considers: How are practitioners currently dealing with paper reduction at the various stages of…
Co-authored by Christopher Smith and James Menz, Schellenberg Wittmer On 10 January 2014, the U.S. Court of Appeals for the Eleventh Circuit issued a highly anticipated decision in Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 2014 WL 104132 (11th Cir. Jan. 10, 2014) (hereinafter Consorcio II). The holding vacated the same panel’s…
