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…
2019 was an important year for international arbitration developments in the United States, both in the commercial and investment context. Some of the more far-reaching developments included the deepening circuit court split on whether “manifest disregard” of the law is a grounds to refuse enforcement of an award, the first U.S. Court of Appeals decision…
United States Code Section 1782 has become the weapon of choice for international litigants seeking discovery in aid of foreign proceedings. Section 1782 allows an “interested person” (such as a foreign litigant) 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.”…
As we head into the new year, it is worth reflecting on major international arbitration-related developments in the United States during 2018 and their coverage on the blog. Early in the year, our authors homed in on the U.S. Federal Arbitration Act (FAA), which embodies U.S. arbitration law, including the New York Convention. As…
The U.S. Court of Appeals for the Fourth Circuit recently issued an en banc decision, in International Refugee Assistance Project IRAP v Trump, affirming the district court’s injunction against President Trump’s Executive Order temporarily suspending entry into the United States by individuals from six Muslim-majority countries. Although the case concerns the application of specialized U.S….
Recently the U.S. Executive Branch made headlines by agreeing with Venezuela. In particular, the Executive Branch filed an amicus curiae submission in New York federal appeals court in which it agreed with Venezuela regarding the treatment of ICSID awards in U.S. courts. According to the U.S. Executive (and Venezuela), a party seeking recognition of an…
As reported earlier, the US Supreme Court has recently adjudicated on the issue of the standard of review in relation to arbitration agreements in international investment arbitration. It is a fact that the majority of the Court has decided that deference should be given to arbitral tribunals to examine questions of procedural conditions, as it…
Introduction In BG Group v. Republic Argentina, a divided U.S. Supreme Court (“the Court”) continued to hold that arbitrators are the proper decision makers in gateway questions of arbitrability, not courts. The issue here concerned whether or not the local litigation requirement in the U.K-Argentina BIT was a procedural prerequisite to investor-state arbitration, or a…
It has been over two years since the DC Circuit Court of Appeals (“Circuit Court”) vacated an award in a bilateral investment treaty arbitration (BG Group PLC v. Republic of Argentina (UNCITRAL)) concluding that the panel did not have authority to adjudicate the dispute because the claimant had not satisfied a pre-arbitration requirement, namely, litigating…
A number of decisions of various national courts have dealt with the issue whether a competition law dispute may be referred to arbitration. Although the case law tends to favour a positive answer, it is still an issue that is being continuously brought up in litigation as an easy way out of arbitration clauses. This…
On November 9, 2012, the U.S. Supreme Court granted certiorari in American Express Co. v. Italian Colors Restaurant. A decision will be rendered in 2013. At issue is the enforceability of an arbitration clause that includes a class action waiver in a federal antitrust case. The case has attracted considerable attention in the United States,…
Last week, the U.S. Court of Appeals for the Eleventh Circuit, which sits in Atlanta, waded into the debate concerning whether 28 U.S.C. § 1782 — which provides U.S. district courts with the power to order parties to give testimony or produce documents “for use in a proceeding in a foreign or international tribunal” —…
