In our recent post, we discussed the split in the federal appeals courts over whether a private international arbitration constitutes a “foreign or international tribunal” within the meaning of 28 U.S.C. § 1782(a), which authorizes U.S. district courts to provide assistance to foreign or international tribunals by ordering discovery of persons in the district.
On March 3, 2021, Israel signed the HCCH Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (“2019 Convention”). Israel became the third State to sign the Convention, joining Uruguay and Ukraine.
The Hague Conference on Private International Law adopted the Convention to provide a uniform process to HCCH member states for enforcing civil judgments in other countries throughout the world. The convention provides that contracting states will recognize and enforce certain civil or commercial judgments rendered by courts of other contracting states, obviating the need for a review of the underlying judgment on its merits.
The principal tenet of the convention is Article 4, which provides that “a judgment given by a court of a contracting state (state of origin) shall be recognized and enforced in another contracting state (requested state) in accordance with [chapter 2 of the convention].”
Although three States have now signed the 2019 Convention, the Convention has yet to be ratified, which is an important milestone for the Convention to come into full force and effect. …
Continue Reading Israel Becomes Third Signatory To 2019 HCCH Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters
The parties in a $238-million dispute over the construction of the third set of locks for the Panama Canal is raising issues concerning alleged conflicts of interest on the part of the International Chamber of Commerce (“ICC”) arbitrators in the United States District Court for the Southern District of Florida. The case may resolve…
As we have discussed in previous posts, federal appeals courts in the United States are split over whether a private international arbitration constitutes a “foreign or international tribunal” within the meaning of 28 U.S.C. § 1782(a), which authorizes U.S. district courts to provide assistance to foreign or international tribunals by ordering discovery of persons in the district. In a very recent case, the United States District Court for the District of Columbia recognized this split, and directed the parties to provide additional briefing before deciding this hotly disputed issue.
In In re Application of: Food Delivery Holding 12 S.A.R.L., 1:21-mc-00005, 2021 WL 860262 (Mar. 8, 2021), Food Delivery Holding 12 S.a.r.l. (“FDH”) filed an application under 28 U.S.C. §1782 for an order to issue a subpoena for the taking of deposition and production of documents for use in a matter before the Dubai International Finance Centre-London Court of International Arbitration (“DIFC-LCIA”).
The Court began its analysis by noting that deciding whether to grant discovery under Section 1782 involves a two-step inquiry:
First, the court must determine whether it can order the requested relief—that is, whether it has the authority to do so; second, it must decide whether it should order the requested relief—that is, whether exercising its discretion to do so would further the statute’s “twin aims of ‘providing efficient assistance to participants in international litigation and encouraging foreign countries by example to provide similar assistance in our courts.’”
The leading international arbitration institutions, including the London Court of International Arbitration (“LCIA”) and the International Court of Arbitration (“ICC”), are revising their arbitration rules to improve efficiency, flexibility and transparency, and address challenges and concerns related to the COVID-19 pandemic.
In a previous post, we discussed LCIA’s updates to its arbitration and mediation rules, which came in effect on October 1, 2020. The ICC has issued similar updates to its 2017 Arbitration Rules, which will take effect on January 1, 2021 (the “2021 ICC Rules”). The updates, according to the ICC Court President, Alexis Mourre:
mark a further step towards greater efficiency, flexibility and transparency of the Rules, making ICC Arbitration even more attractive, both for large, complex arbitrations and for smaller cases.
Notable and substantive revisions to the 2021 ICC Rules include:
Article 3 of the 2021 ICC Rules now allows the parties to make their submissions by email, replacing the previous requirement to provide the submissions in a hard copy. This amendment recognizes that most communications are now conducted electronically and addresses COVID-19 concerns when hard copy filing may be impossible and present health risks.
The ICC, like other international arbitration fora, quickly adopted to the COVID-19 reality of remote hearings. Article 26(1) of the 2021 ICC Rules now provides that “[t]he arbitral tribunal may decide, after consulting the parties, and on the basis of the relevant facts and circumstances of the case, that any hearing will be conducted by physical attendance or remotely by videoconference, telephone or other appropriate means of communication.”…
Continue Reading 2021 ICC Rules Update Aims At Greater Efficiency, Flexibility, And Transparency and Addresses COVID-19 Issues
Sarah Biser moderated a webinar roundtable discussion on how to conduct business in the UAE and Israel – now that the Abrahams Accords have made possible trade and commerce between Israel and the UAE. The roundtable discussion, held on October 28, 2020, included Sarah Biser and Mark Hess of Fox Rothschild, Uzi Dayan, Member of…
Join Sarah Biser, and other arbitration practitioners for a virtual discussion regarding the challenges of virtual hearings including preparation for virtual mediations and arbitrations – sponsored by the American Bar Association, Section of Litigation and Ankura. The Webinar will be broadcast live on November 5, 2020 at 12 pm. Please register at this link https://us02web.zoom.us/webinar/register/8216025154109/WN_hG0erzLwQJyUvgcvWcxN_w
Arbitration awards may be vacated or annulled based on arbitrator conflicts of interest and even just an appearance of impropriety. Read how different arbitrations deal with disqualification motions.
The Importance of Impartiality and Lack of Conflicts
Arbitrator’s impartiality and independence is the bedrock of international arbitration. Recent arbitration awards have been vacated or annulled due…
In our recent post, we have discussed the split in the federal appeals courts over whether a private international arbitration constitutes a “foreign or international tribunal” within the meaning of 28 U.S.C. § 1782(a), which authorizes U.S. district courts to provide assistance to foreign or international tribunals by ordering discovery of persons in the district.
On September 22, 2020, in Servotronics, Inc. v. Rolls-Royce PLC et al., No 19-1847, the U.S. Court of Appeals for the Seventh Circuit joined the Second and Fifth Circuits in holding that 28 USC § 1782(a) does not apply to private international arbitration. As we have previously discussed, the Sixth and Fourth Circuits both recently ruled that section 1782 may be invoked to seek discovery in aid of private foreign or international commercial arbitrations. …
Continue Reading The Seventh Circuit Joins the Second and Fifth Circuits in Holding That 28 USC § 1782(a) Does Not Apply to Private International Arbitration
Due to uncertainties created by the pandemic, virtual hearings will continue to remain the default option in particular in domestic, international and cross border proceedings, in which in-person appearances are made difficult by travel constraints.
There are many practical considerations that practitioners and clients face with regard to virtual hearings. This post summarizes some important issues that need to be considered in advance of a remote hearing:
- Technical aspects: There are various technical aspects that need to be planned in advance, including the platform for the hearing; presentation of electronic evidence; translations; recording and transcribing. Most of these technical aspects are better left to the professionals, rather than the attorneys, who should be focusing on the legal aspects of the hearing. For example, if the budget allows, there should be a designated person assigned whose responsibility is to ensure that the technical aspects of the hearing are running smoothly. Such individual should be responsible, among other things, for presentation of electronic evidence, muting and unmuting of participants, setting up the break out rooms, and ensuring participants’ access to the hearing.