PRELIMINARY DISCOVERY IN INTERNATIONAL ARBITRATION: AN AUSTRALIAN PERSPECTIVE

The availability and scope of ‘discovery’ or document production significantly differs across jurisdictions, most notably when comparing litigation in common law and civil law courts. In the field of international arbitration, the compromise position adopted by the International Bar Association’s Rules on the Taking of Evidence in International Arbitration is to permit disclosure of documents … Read more

SECTION 1782 UPDATE: U.S. FOURTH CIRCUIT COURT OF APPEALS HOLDS THAT U.S. DISCOVERY CAN BE USED IN AID OF INTERNATIONAL COMMERCIAL ARBITRATIONS AND SUPREME COURT MAY NOW RESOLVE THE CIRCUIT SPLIT

The U.S. Supreme Court may soon have occasion to decide whether parties involved in international arbitrations outside of the U.S. can rely on 28 USC § 1782, “Assistance to foreign and international tribunals and to litigants before such tribunals,” to seek discovery from entities in the United States. In October 2019, we noted in this … Read more

CONSTRUCTION ARBITRATION PODCAST SERIES EPISODE 3: DOCUMENTS AND FACTUAL WITNESSES

Why are documents and factual witnesses so important in construction arbitrations? We are pleased to share the third episode in our Construction Arbitration podcast series, in which we discuss the importance of documents and factual witnesses in construction arbitrations. In this episode Craig Tevendale (Partner, UK Head of International Arbitration), Susan Field (Senior Associate, International … Read more

SECTION 1782 UPDATE: U.S. DISCOVERY IN AID OF INTERNATIONAL COMMERCIAL ARBITRATIONS

As we have explained in a previous post, Section 1782 of the United States Code (28 USC § 1782, titled “Assistance to foreign and international tribunals and to litigants before such tribunals”) is a means by which “an interested person” in non-US proceedings can request an order compelling discovery from a US-based entity “for use … Read more

Malaysia’s High Court rules that third parties are not prohibited from disclosing confidential documents produced in arbitration proceedings

In Dato’ Seri Timor Shah Rafiq v Nautilus Tug & Towage Sdn Bhd [2019] MLJU 405, the High Court considered for the first time the new section 41A of Malaysia’s Arbitration Act 2005 (“Arbitration Act“), and its application to non-parties to an arbitration. Background In the context of a shareholders’ dispute, the plaintiff-director of the … Read more

Prague Rules on efficiency in arbitration now launched

The new Rules on the Efficient Conduct of Proceedings in International Arbitration (Prague Rules) launched last month in the Czech Republic and aim to provide a more efficient framework for arbitral procedure which can be used to streamline a dispute, reducing delay and costs. Their approach is closer to civil law than common law traditions, … Read more

English Court refuses to grant an injunction against the enforcement of a s1782 US Evidence Order

In a decision dated 24 August 2018, the English Commercial Court (the “Court“) dismissed Dreymoor Fertilisers Overseas PTE Ltd’s (“Dreymoor“) application to continue an injunction preventing the enforcement of an order of a U.S. court granting discovery under section 1782 of the United States Code (the “Order“). The Order required one of Dreymoor’s employees to … Read more

Podcast: 8 top tips for in house counsel in managing an arbitration

In this short podcast, Professional Support Consultants Hannah Ambrose and Vanessa Naish provide 8 top tips for in house counsel in managing an arbitration.   For further information or to suggest topics for future podcasts, please contact Hannah Ambrose, Professional Support Consultant, Vanessa Naish, Professional Support Consultant, or your usual Herbert Smith Freehills contact. To request … Read more