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.

Continue Reading Virtual Reality Of Arbitration Hearings

Join virtually Sarah Biser, Robert Rubin, Mark Hess, James Perry, Micha Tollman and Roberto Hernandez-Garcia for a discussion regarding the use of Dispute Review Boards in domestic and international projects. …
Continue Reading Sarah Biser will be speaking at a Fox Rothschild Webinar – “Why It’s Smart to Require Dispute Review Boards in Your Agreements” on Thursday, September 17, 2020 at 11 am ET

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

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

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