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Kurzer Überblick bis Babcock und Comision Ejecutiva (Mai 2009)

Apr 30, 2009, by Sion Richards and Harriet Territt (Jones Day via Mondaq) - "In proceedings before the English courts, there are specific rules of civil procedure that can be used to obtain discovery from U.S.-based persons who are not directly involved in the litigation. However, it is often the case that a direct application to the U.S. courts for discovery pursuant to 28 U.S.C. § 1782 will be quicker and will give rise to a wider scope of disclosure."

W. Cameron Beard, February 2002

In a decision that appears to swim against the tide, a US district court in Chicago has refused to compel Scott Carey, a potential witness in a London arbitration, to give a deposition.

A 2006 ruling prompted an uptick in requests to US courts under section 1782 but now the tide could be reversing, as three courts take the view arbitral panels don't qualify for evidentiary help.

"The gathering of evidence is a key element in legal proceedings. Contrary to the regulations in Switzerland, the US legal order allows for pre-trial discovery, i.e. the parties are entrusted with the collecting of evidence at an early stage. This diverging approach becomes relevant in civil proceedings or arbitral proceedings in Switzerland with a linkage to the USA. The question arises if and how parties may profit from the US-American discovery procedure. This paper wants to answer the question by examining the use of evidence gathered in US-American discovery in international proceedings before Swiss courts as well as arbitral tribunals located in Switzerland. Part one concentrates on the possibilities and limitations of legal assistance pursuant to 28 U.S.C. § 1782. In part two the utilization of evidence collected in discovery procedure in Switzerland, in the event of a party seeking legal assistance individually, is evaluated. Thereby, special consideration is given to the Hague Evidence Convention and the Swiss ordre public. The paper concludes with a short summary of the author's findings and rationalizations why evidence collected in discovery proceedings should be admitted."

Quinn Emanuel Urquhart Oliver & Hedges

by Mark H. Alcott, in: NYSBA International Law Practicum, Vol. 21, No. 2, Autumn 2008, pp. 118-123

March 17, 2009 - Daniel Schimmel (Partner) and Melissa E. Byroade (Associate) for Kelley Drye; PDF download (Manuskript); Publikation in: International Arbitration 2009, Volume 1, published by the Practising Law Institute "The chapter focuses on Section 1782 of Title 28 of the United States Code and international arbitration. It addresses the questions: "First, do international arbitration tribunals with a foreign situs constitute 'foreign tribunals' within the meaning of § 1782?.... Second, is § 1782 actually helpful to international arbitration?" The authors also discuss the Intel Corp. v. Advanced Micro Devices, Inc. case and its impact on subsequent decisions regarding "foreign discoverability" requirements."

Überblick über Voraussetzungen und Verfahren (2006)

Apr 30, 2009 by Robert W. Gaffey and Bridget A. Crawford (Jones Day via Mondaq) - Einführender Überblick über Voraussetzungen und Rechtsprechung