Co-authored by Robert Rohrberger
Objectives and Considerations
The majority of international arbitrations are decided by three-member arbitration panels. Each party selects its “party-appointed” arbitrator, and the president or chair of
Continue Reading Selecting a Party-Appointed Arbitrator in International Arbitration – a Primer
In these series of posts, we discuss the differences that have emerged in rulings by federal appeals courts in the United States Circuits on certain issues that may affect the ability of a party in an international arbitration to obtain evidence from non-parties to the arbitration.
Arbitrator’s Power To Order Pre-Hearing Document Production Or Testimony From Non-Parties
In Part I of our post on the Circuit Courts split over discovery matters in international arbitration, we have discussed the Courts’ different views on whether a private international arbitration constitutes a “foreign or international tribunal” within the meaning of section 1782. The federal Courts of Appeals do not agree on another discovery matter that relates to obtaining evidence from non-parties in arbitration—including international arbitration—with the seat in the United States. There is a Circuit split on whether an arbitrator may compel pre-hearing document production or testimony from non-parties pursuant to Section 7 of the Federal Arbitration Act (“FAA”), which applies to any arbitration in the United States involving interstate or international commerce.
The Second Circuit, Third Circuit (which includes Delaware, New Jersey, Pennsylvania), and Ninth Circuit (which includes Arizona, Alaska, California, and Hawaii) have ruled that an arbitrator does not have power to compel pre-hearing discovery of documents and testimony pursuant to the FAA, and can compel such discovery only for an arbitration hearing.Continue Reading U.S. Circuit Courts Split Over Issues Concerning the Ability To Obtain Evidence From Non-Parties In International Arbitration, Part II
In these series of posts, we discuss the differences that have emerged in rulings by federal appeals courts in the United States Circuits on certain issues that may affect the ability of a party in an international arbitration to obtain evidence from non-parties to the arbitration.
Application Pursuant 28 U.S.C. §1782
A federal statute, 28 U.S.C. § 1782, states that U.S. district court may provide assistance to foreign or international tribunals by ordering discovery of persons in the district. The Circuit Courts, however, disagree whether a private international arbitration constitutes a “foreign or international tribunal” within the meaning of section 1782.
In In re Application of Hanwei Guo for an Order to Take Discovery for Use in a Foreign Proceeding Pursuant to 28 U.S.C. § 1782, 965 F.3d 96 (2d Cir. July 8, 2020), the U.S. Court of Appeals for the Second Circuit reaffirmed its previous holding that a party cannot invoke 28 U.S.C. § 1782 to obtain documentary and testimonial evidence to be used in a private international commercial arbitration proceeding.
Continue Reading U.S. Circuit Courts Split Over Issues Concerning the Ability To Obtain Evidence From Non-Parties In International Arbitration, Part I
Join virtually Oksana Wright and many other international law practitioners for a discussion of relevant international arbitration and litigation topics at the 12th Annual Conference on the Resolution of CIS
Continue Reading Oksana Wright Will Be Speaking At the 12th Annual ABA Conference on The Resolution of CIS-Related Business Disputes
The London Court of Arbitration (LCIA) released 2020 update to its arbitration and mediation rules (the “Rules updates”), which comes into effect on October 1, 2020. The purpose of the
Continue Reading LCIA Releases Update To Its Arbitration Rules
A uniform pronouncement of the burden of proof necessary for a party to succeed in summary disposition of a case is conspicuously absent from international arbitration today. The rules for
Continue Reading Summary Disposition in ICSID and ICC Arbitration
Oksana Wright and Philip Langer discuss, in a Law360 article, Covid-19 related lawsuits filed against China.
In cases involving contracts between U.S. companies, courts frequently allow a nonsignatory to a contract to enforce an arbitration provision in the contract against a signatory when the signatory to
Continue Reading U.S. Supreme Court Rules that Equitable Estoppel May be Applied to International Contracts Governed by the New York Convention
In early June, the Second Circuit issued two decisions interpreting the “commercial-activity” exception to the FSIA immunity. In Pablo Star Ltd. v. Welsh Gov’t, plaintiffs were successful in claiming
Continue Reading Recent Decisions from the Second Circuit Interpret the “Commercial-Activity Exception” to the FSIA Immunity
A recent decision of the Southern District of New York illustrates enforcement of arbitral awards under the New York Convention in situations when there are competing decisions issued by an
Continue Reading SDNY Enforces An Arbitral Award But Won’t Enjoin The Enforcement Of Austrian Judgment Concerning Same Matter
