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 be deposed and produce evidence for use in various international proceedings by Eurochem Trading GMBH (“ECTG“) against Dreymoor. Dreymoor argued that enforcing the Order would constitute unconscionable conduct as it would interfere with its preparation for arbitration proceedings against ECTG.

The Court accepted that the enforcement of orders such as the Order could potentially be unfair, as they would effectively provide an opportunity to cross-examine the same witness twice. However, whether to injunct the enforcement of such an order required a careful case-by-case analysis. Based on various case-specific factors, the Court decided that it would not be unconscionable to allow ECTG to enforce the Order and dismissed Dreymoor’s application to continue the injunction.

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New York district court rejects application for use of confidential documents in LCIA arbitration

Beny Steinmetz Group Resources ("BSGR"), a company based in Guernsey and accused of bribery in Guinea, has been denied permission by a Magistrate Judge of the Southern District Court of New York ("SDNY") to use certain confidential documents. These documents were produced in a lawsuit before the SDNY filed by Rio Tinto, and were sought to be used by BSGR in a separate but related LCIA arbitration.

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Recent Developments in India-related international arbitration

Herbert Smith Freehills has issued its latest Indian International Arbitration e-bulletin. The e-bulletin considers the decision of the Supreme Court of India in Bharat Aluminium, as well as the recent decisions of the Delhi High Court concerning non-disclosure of interests by arbitrators and the power of the court to re-examine evidence under section 34 of the Indian Arbitration and Conciliation Act 1996.

Please click here for a copy of our latest Guide to Dispute Resolution and Governing Law clauses in India-related Commercial Contracts.

Amended Civil Procedure Law is good news for arbitrations in mainland China

An amended Civil Procedure Law of the People’s Republic of China (the “CPL“) (中华人民共和国民事诉讼法) comes into force on 1 January 2013 and introduces some important changes to the domestic and foreign relation arbitration regimes in China. These amendments include: 

  1. The introduction of direct applications to the PRC courts for pre-arbitration evidence and asset preservation for domestic/foreign related arbitrations seated in China. (These measures are referred to in China as “Conservatory Measures” (保全措施)).
  2. A narrowing of the scope for challenges to domestic awards at the enforcement stage.
  3. New provisions on vexatious litigation and arbitration claims to avoid complying with agreements in the enforcement stage.
  4. A requirement for courts to issue written rulings and provide reasons for decision where it sets aside an award (previously this only applied to refusals to enforce).
  5. An amendment to clarify that parties can agree to arbitrate non-contractual disputes. Continue reading

Herbert Smith holds successful seminar on privilege

On 9 May 2012, over a hundred people attended a seminar at Herbert Smith’s London offices.  One of the key topics was the role of privilege in international arbitration which was covered by London partner Chris Parker. 

International arbitration differs from court litigation in this regard as the relevant rules of evidence are much more flexible.  Approaches taken by arbitral tribunals vary as arbitrators generally possess broad discretion to determine issues of evidence under national laws and institutional rules. They may apply a number of different laws as well as internationally developed principles.

The seminar covered privilege as it relates to court litigation as well as international arbitration and focussed on legal professional privilege under English law. Those dealing with disputes under English law may be interested in Herbert Smith’s new guide to legal professional privilege under English law, comprising:

  • A decision tree: intended as a quick reference to help determine which documents can legitimately be withheld on grounds of privilege; and
  • Practical tips for maintaining privilege: aimed at minimising the risks of unhelpful material being produced.

The guide is available both as an interactive PDF, with links to more detailed information and articles, and as a hard copy guide. Click here to access the “Handy client guide to privilege” home page on our “litigation notes” blog or contact Christina Southgate if you would like a hard copy.

For more detailed information on privilege in international arbitration in particular, please click here for an article published by Partner Craig Tevendale or contact a member of the Herbert Smith arbitration team.