US COURTS AFFIRM EXPANSIVE DISCOVERY
UNDER 28 U.S.C. §1782
By Harout Jack Samra, Miami
International litigants continue to rely on 28 U.S.C. §1782 in disputes with US-based parties. While the statute was considered relatively obscure not long ago, it is now an important and frequently-used tool to obtain critical discovery in support of foreign proceedings.
Courts in the United States have struggled with whether §1782 discovery is available in connection with international commercial arbitration proceedings. However, apart from this enduring controversy, the statute has been interpreted broadly and can represent a significant strategic advantage to non-US parties attempting to obtain discovery from a US party and/or its affiliates.
Two recent cases address the statute’s scope, including whether a sovereign state may request discovery under §1782, and whether evidence obtained through the statute may be used by parties in subsequent civil litigation in the United States.
Find out more.
EXEQUATUR IN FRANCE: NO DISTINCTION BETWEEN
FOREIGN COMMERCIAL AND ADMINISTRATIVE LAW AWARDS
By T. Alexander Brabant, Maxime Desplats and Andrea Lapunzina Veronelli, Paris
France has had a dual jurisdictional system since the 19th century: the administrative courts have jurisdiction to hear most disputes which involve public entities, while the judicial courts have jurisdiction over all other disputes. The issues which may arise when determining which court system has jurisdiction are entrusted to a special court.
The issue of determining such jurisdiction arose recently regarding the grant of exequatur orders and challenges brought against these orders. In July 2015, the Cour de Cassation ruled that the exequatur for foreign administrative awards can be sought under the same conditions as those which apply to foreign awards in international commercial arbitration, i.e. before the judicial courts.
Find out more about this landmark decision.
US: COURTS’ DEFERENCE TO AN ARBITRATION AWARD
IS NOT WITHOUT LIMITS
By James R. Nelson, Dallas, and Meghan Paulk Ingle, Austin
As a matter of public policy, United States courts strongly favor alternative dispute resolution and show great deference to awards made by arbitration tribunals. However, a recent ruling by the US District Court for the District of Colorado (in which DLA Piper acted for one of the parties) demonstrates that such deference does not require a court to confirm an award in the face of a failure to follow agreed procedures, nor does it outweigh notions of due process and fundamental fairness.
Find out more.
ENGLAND: INORDINATE DELAY IN DELIVERING AWARD IS NOT
SUFFICIENT AS A GROUND TO SET IT ASIDE
By Sean McGuiness, London
The English courts have recently taken a firm position on a party’s right to challenge an arbitral award on the basis of the tribunal’s delay in producing that award. The finding in B.V.Scheepswerf Damen Gorinchem v The Marine Institute confirms that delay in and of itself will not be grounds for challenging an award under s. 68 of the Arbitration Act 1996. A party must also show that the delay has caused or will cause it substantial injustice.
Find out more.
THE NEW PORTUGUESE COURT OF ARBITRATION FOR SPORT
By José Manuel Meirim and Marta Vieira Da Cruz*
The Portuguese Court of Arbitration for Sport is expected to become fully operational in October 2015. The CAS will have mandatory jurisdiction over all administrative disputes arising in relation to sports federations, sports leagues and the anti-doping authority. Unlike many other examples, the Portuguese CAS is a creation of the state itself, rather than of a sports body.
The sports world is regarding the CAS with both apprehension and enthusiasm. On the one hand, it is understood that the complex and unique legal universe of sports requires that disputes must be handled by people who have sports law expertise. On the other hand, the creation of a mandatory arbitral jurisdiction may open a Pandora’s box and it is difficult to predict future developments.
Find out more.
NEWS FROM THE INSTITUTIONS
Russian Arbitration Association signs agreement with Kuala Lumpur
The Russian Arbitration Association (RAA) has signed a cooperation agreement with the Kuala Lumpur Regional Arbitration Center (KLRCA) at the annual St Petersburg Legal Forum. The aim of the agreement is to improve the promotion and administration of arbitration in the two countries and foster greater cooperation between the two. Going forward, the RAA and KLRCA plan to hold joint conferences, training and internship programmes as well as sharing knowledge about potential arbitrators.
For more information see the RAA press release.
Andorra becomes 156th state to accede to the New York Convention
On 22 June Andorra acceded to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, becoming the 156th state to do so. Following the deposit of its instrument of accession, the treaty entered into force for Andorra on 17 September 2015.
More information about the accession is available on the UN Information Service website.
2014 statistics published by ICC
The International Chamber of Commerce (ICC) has published its latest dispute resolution statistics for 2014. Its caseload continues to expand: the statistics reveal that the ICC had 863 new cases last year involving more than 140 countries. The expansion has been given extra impetus since the opening of new secretariats in Hong Kong and New York. Of the 863 new cases, over 90 per cent were arbitrations.
A summary of the ICC statistics is available here.
Draft revision of notes for organising arbitral proceedings approved by UNCITRAL
The United Nations Commission on International Trade Law (UNCITRAL) has approved, in principle, the draft revision of the Notes on Organising Arbitral Proceedings at its 48th annual session. Further revisions will be made to the draft by the UN Secretariat, and it will then be considered for adoption at the next annual session, to be held in New York in 2016.
For more information about UNCITRAL’s 48th annual session, see the press release.
Arbitration evaluation system launched by HKIAC
The Hong Kong International Arbitration Centre (HKIAC) has introduced a new evaluation system which will enable users to rate the conduct of their arbitrators and evaluate the conduct of their arbitration proceedings. Parties to an HKIAC-administered arbitration will be able to rate its services and facilities, as well as such issues as the tribunal's degree of preparation and the communication, case management and decision-making skills of the tribunal, on a scale of one to five.
See the HKIAC press release for more detail about the new evaluation system.
Case statistics for 2015 published by ICSID
The International Centre for the Settlement of Investment Disputes (ICSID) has published its latest statistics showing that 50 new cases were registered in the 2015 fiscal year under the ICSID Convention. The majority of the cases registered (58 per cent) were related to the energy industry and concerned Eastern Europe and Central Asian states (33 per cent), with another 21 per cent of cases originating from Western European states.
More information about the ICSID statistics is available on the ICSID website.
SIAC to review rules in 2016
The Singapore International Arbitration Centre (SIAC) is to review its arbitration rules and plans to issue a revised version of the rules in mid-2016. The new rules will include “revised mechanisms for consolidation, joinder and intervention” as well as amendments to rules relating to expedited procedures, emergency arbitrators and investment arbitration.
See the SIAC press release for more information.
Dispute Resolution in the Oil and Gas Business
London, 22-23 October 2015
A two-day conference co-hosted by the London Court of International Arbitration (LCIA) and the Association of International Petroleum Negotiators (AIPN) will be held in London on 22 and 23 October 2015. Topics covered during the conference will include boundary disputes, state investment disputes, oil and gas upstream and midstream disputes and oil and gas pricing disputes.
Further information about the conference is available on the LCIA website.
UNCITRAL Asia-Pacific Judicial Summit
Hong Kong, 28 October 2015
The summit is hosted by UNCITRAL, the Hong Kong Department of Justice and the HKIAC and will be held in Hong Kong on 28 October 2015 as part of Hong Kong Arbitration Week. Speakers from UNCITRAL and the Hong Kong judiciary and other arbitration experts will discuss the interpretation and application of the New York Convention on the recognition and enforcement of foreign arbitral awards.
For more information about the event see the judicial summit flyer.
13th annual ICC Miami conference on international arbitration
Miami, 1-3 November 2015
The International Chamber of Commerce (ICC) will host its 13th annual Miami conference between 1 and 3 November 2015. The conference will provide an update on developments in arbitration in Latin America and will begin with advanced level training on the Production of Documents on Sunday 1 November, providing practical insights on how to manage the production of documents in international arbitration.
See the ICC website for more details about the conference.
Class and Group Actions in Arbitration
Paris, 30 November 2015
The International Chamber of Commerce (ICC) is to hold a conference in Paris on 30 November 2015 to address the many issues that arise in respect of class and group arbitrations since the concept of class arbitration first appeared on the arbitration agenda in 2003 following the US case of Green Tree Financial Corp v Bazzle.
Details of the conference can be found on the ICC website.
Third-Party Funding and International Arbitration: a 360 degree perspective
London, 3 December 2015
The International Bar Association Arbitration Committee is holding a conference in London on 3 December 2015 which will look at the issues relating to third-party funding in international arbitration. Topics under discussion will include the diversification of litigation finance-related products, difficulties of third-party funding and security for costs.
More information about the conference can be viewed here.
* José Manuel Meirim is Counsel in sports law for DLA Piper relationship firm ABBC, based in Lisbon, and a Professor of Sports Law. Marta Vieira Da Cruz is an Associate Lawyer at ABBC in public and sports law. They may be reached at [email protected]