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 Related Business Disputes organized by the ABA International Law Section and Russian Arbitration Association.  Oksana will be speaking on September 17 at the session entitled

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 arbitration tribunal and a foreign court.

In Ocean World Lines, Inc. v. Transocean Shipping Transportagentur GesmbH, No. 19 CIV. 43 (AT), 2020 WL 3250734,