Erika Levin, Oksana Wright and Michael Lieberman discuss, in a Law360 article, new Article 21 of the 2021 ICDR Rules, which specifically reinforces the tribunal’s authority to rule on its own jurisdiction without the involvement of the courts.
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
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.’”
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…
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.
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…
Oksana Wright and Philip Langer discuss, in a Law360 article, Covid-19 related lawsuits filed against China.
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 the exception. In Barnet Revocable Tr. v. Ministry of Culture & Sports of the Hellenic Republic, however, the Court found that the exception does…