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Lars Bauer

Legal Overview - How Foreign Litigants May Obtain American Discovery For Use In Their H... - 0 views

marks-sokolov.com/article_sullivan_01.htm

28-USC-1782 articles arbitration discovery

shared by Lars Bauer on 15 Mar 09 - Cached
  • Williams Industrial Services, LLC v. Steel Equipment Corp., CA NO: 2:08-MC-179-AJS (W.D. Pa. June 24, 2008).
  • III. The Application of §1782 to Private International Arbitration
  • Subsequent to the Supreme Court’s decision in Intel, various courts have granted §1782 discovery in aid of private arbitral matters. In In re Hallmark Capital Corp., the court granted discovery for use in a private Israeli arbitration proceeding. By its Order dated September 13, 2007 denying the discovery target’s motion for reconsideration, the court bypassed National Broadcasting by relying upon Intel’s rejection of restrictive definitional exclusions.39 In In re Application Roz Trading, the court granted an application requesting the production of documents for use before an arbitral panel of the International Arbitral Centre of the Austrian Federal Economic Chamber in Vienna.40 In Williams Industrial Services, LLC v. Steel Equipment Corp., in the absence of opposition the court granted document discovery for use in a private arbitration matter before the International Chamber of Commerce in Paris, France.41
  • ...2 more annotations...
  • 40In re Application Roz Trading, 469 F. Supp. 2d 1221 (N.D.Ga. 2006); 2007 U.S. Dist. LEXIS 2112 (N.D.Ga. 2007) (Denying request for stay pending appeal.) On June 4, 2008 the Eleventh Circuit Court of Appeals granted the appellant Coca-Cola’s motion to dismiss its appeal with prejudice.
  • 41Williams Industrial Services, LLC v. Steel Equipment Corp., CA NO: 2:08-MC-179-AJS (W.D. Pa. June 24, 2008).
  • Lars Bauer on 15 Mar 09
     
    Marks & Sokolov Article | United States Law Office Philadelphia Pennsylvania | Russian Law Office Moscow | Ukraine Law Office Kyiv
Lars Bauer

Born: More Uncertainty about § 1782's Extension to International Arbitral Pro... - 0 views

kluwerarbitrationblog.com/...rnational-arbitral-proceedings

law arbitration discovery 28-USC-1782 Winning-Case case-notes

shared by Lars Bauer on 12 Jun 10 - Cached
  • While the court in Chevron said little else about the applicability of § 1782, an opinion issued by a federal magistrate judge in the Southern District of Florida one week before, in In re Winning (HK) Shipping Co. Ltd., offered a detailed approach to determining whether a private international arbitral tribunal is a foreign tribunal that qualifies for judicial assistance under § 1782. Specifically, the court in Winning discussed a functional test for determining whether an international arbitral tribunal qualifies as a foreign tribunal under § 1782.
  • The Winning opinion is yet another addition to the growing body of conflicting case law on whether, and if so when, judicial assistance under § 1782 is available to parties in international arbitral proceedings – a body of conflicting case law that ultimately will need to be clarified by the federal appellate courts and possibly by the U.S. Supreme Court.
  • should analyze, among other things, whether the tribunal: (1) has the ability to gather evidence; (2) is obligated to apply the law to the facts in an impartial manner; (3) has the authority to issue a binding decision; (4) will issue opinions that are judicially reviewable; and (5) is state-sponsored or purely private.
  • ...5 more annotations...
  • the issue of whether a decision is judicially reviewable is of decisive importance
  • the Winning court concluded that “to the extent the arbitration forum at issue is subject to the Arbitration Act 1996 (of England) or . . . the rules of the London Maritime Arbitrators Association, Winning is proceeding before a ‘foreign tribunal.’”
  • Under the functional test applied by the Winning and Operadora courts, only private arbitrations sited in jurisdictions where awards can be judicially reviewed qualify as “foreign tribunals” under § 1782. It is not clear, however, when exactly an arbitral award can be said to be judicially reviewable for the purpose of this functional test.
  • the current variance in opinions on the applicability of § 1782 to international arbitration suggests that it is unlikely that a uniform approach will emerge any time in the near future.
  • strengthens the case for why the federal appellate courts – and, if a circuit split emerges, the U.S. Supreme Court – should address sooner rather than later whether, and if so when, § 1782 extends to cover proceedings before international arbitral tribunals.
  • Lars Bauer on 12 Jun 10
     
    Note by Gary Born (WilmerHale) on Application of Winning (HK) Shipping Co. Ltd., 2010 WL 1796579 (S.D. Fla. Apr. 30, 2010)
Lars Bauer

Applied Discovery | Law: Case Summary Alert - 0 views

www.applieddiscovery.com/ws_display.asp?filter=Monthly_Case_Summary_Alert_Detail&item_id=%7B86D0C8FA%2D616F%2D486E%2DB45B%2D8529093F6F90%7D&source_filter=Monthly%5FCase%5FSummary%5FAlert&bookmark={86D0C8FA-616F-486E-B45B-8529093F6F90}&keyword=September%202011

28-USC-1782 discovery cases

shared by Lars Bauer on 11 Oct 11 - No Cached
  • The Michael Wilson law firm had litigation underway in England and Australia against several of its former members or employees who allegedly breached their contractual and fiduciary duties to the firm when they left and took with them clients of the firm involved in mineral, oil and gas, and precious metal mining investment projects in Kazakhstan. Two of the clients were companies with headquarters in an office in Denver.
  • In order to obtain discovery of documents from the two companies in Colorado, the Wilson law firm applied for an Order of Judicial Assistance under 28 U.S.C.S. § 1782
  • The Wilson law firm's application (a copy is available here) was successful, but with one caveat. The court upheld a $500,000 cost bond imposed on the firm due to the cost of the discovery being sought, an earlier order for cost-sharing, and the freezing of certain assets of the firm. The Wilson firm argued that imposition of a pre-judgment cost bond as a condition for Section 1782 discovery was unprecedented, but the court held that a proceeding under Section 1782 was governed by Fed. R. Civ. P. 26, which vested the court "with considerable discretion to specify conditions and limits for discovery, particularly electronic discovery."
  • Lars Bauer on 11 Oct 11
     
    In re Application of Michael Wilson and Partners, Ltd., 2011 U.S. Dist. LEXIS 90954 (D. Colo. Aug. 15, 2011)
Lars Bauer

"Navigating Between German and US Discovery Provisions" - 0 views

patent-in-suit.com/?p=141

28-USC-1782 discovery USA Germany parallel-proceedings articles

shared by Lars Bauer on 11 Oct 11 - No Cached
  • I have a new article, written with my Silicon Valley colleague Tamara Fraizer, live now on IP360 (IP360 subscription required): http://www.law360.com/articles/270953/navigating-between-german-and-us-discovery-provisions
  • Lars Bauer on 11 Oct 11
     
    The article discusses the interaction between the US law which provides for discovery in aid of foreign litigation (28 USC 1782), the recent 7th Circuit opinion interpreting that statute (the Biomet case), and German discovery proceedings.As we are increasingly seeing "parallel proceedings" in the United States and Germany, especially within the technology and biopharma realms, complex strategic choices are emerging.
Lars Bauer

Judicial Assistance in the Taking of Evidence Abroad in Aid of Arbitration: A... - 0 views

www.ingentaconnect.com/...art00004

arbitration evidence legal-assistance 28-USC-1782 germany usa

shared by Lars Bauer on 08 Sep 09 - Cached
  • Lars Bauer on 08 Sep 09
     
    Oliver L. Knöfel, Journal of Private International Law, Volume 5, Number 2, August 2009, pp. 281-309 Abstract: Until today, a variety of mechanisms of State courts assisting foreign arbitral tribunals in the taking of evidence has been developed in international legal practice. Unfortunately, none of the legal avenues nowadays available to arbitrators presents a coherent or convincing picture. One has to explore a wealth of diverse and scattered sources when an arbitral tribunal needs or wishes to obtain evidence abroad. What is more, it is often considered excessive to oblige a State to lend assistance to arbitral proceedings held outside its own territory. In 2004, however, the US Supreme Court decided to examine the concept of "tribunal" as used in 28 U.S.C. section 1782 under a functional lens. In the wake of this decision several US District Courts have been reading section 1782 to authorise subpoenas in aid of foreign arbitrations. The new US jurisprudence offers a unique opportunity to reinvent the US-German relationship under the Hague Evidence Convention of 1970. This article aims at broadening the scope of international judicial assistance in its entirety. The plan is to begin by exploring the legal avenues by which arbitral panels can obtain evidence abroad and seek judicial assistance of foreign States' courts de lege lata. Then the impact of the newly established, arbitration-friendly US case-law on judicial assistance as granted under 28 U.S.C. section 1782 will be studied. Finally, the new US jurisprudence will be used as the basis to argue for a different attitude towards arbitration proceedings than that now prevailing under the Hague Evidence Convention of 1970 and under the European Evidence Regulation of 2001. Both instruments should be interpreted to encompass international arbitral tribunals.
Lars Bauer

KYC News Inc. - Community Message Board: Detail - Re: Critics Call Delaware a Tax Haven... - 0 views

www.offshorebusiness.com/message_board_detail.asp

28-usc-1782 evidence legal-assistance criminal-law tax-law memoranda

shared by Lars Bauer on 30 Jun 09 - Cached
  • Lars Bauer on 30 Jun 09
     
    "Below is a a Memorandum of Law that was used in an application for the appointment of a commissioner to collect evidence - pursuant to a request for judicial assistance from the United Kingdom - that was made at the U. S. District Court for the District of Kansas on July 1, 2008."
Lars Bauer

Riback: American Discovery For Foreign Litigation Under 28 USC § 1782 | Jan 2... - 0 views

www.sillerwilk.com/...article-1782.pdf

USA 28-USC-1782 law discovery arbitration articles

shared by Lars Bauer on 19 Feb 10 - No Cached
  • Lars Bauer on 19 Feb 10
     
    by Stuart M. Riback (Siller Wilk LLP), prepared for the American Bar Association Business Law Section Spring Meeting 2007
Lars Bauer

Biller & Suskin: May Courts Assist Private International Arbitration? The jud... - 0 views

www.law.com/...PubArticleCC.jsp

28-USC-1782 arbitration discovery law

shared by Lars Bauer on 23 Jan 10 - Cached
  • Lars Bauer on 23 Jan 10
     
    by Sofia E. Biller and Howard S. Suskin
Lars Bauer

The Use of Evidence Obtained in US-American Discovery in International Civil ... - 0 views

www.kluwerlawonline.com/toc.php

28-usc-1782 arbitration evidence switzerland usa articles

shared by Lars Bauer on 30 Jun 09 - Cached
  • The Use of Evidence Obtained in US-American Discovery in International Civil Procedure Law and Arbitration in Switzerland [Müller-Chen] (238 KB)
  • Lars Bauer on 30 Jun 09
     
    "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."
Lars Bauer

Mixing International Arbitration With U.S. Discovery: A cocktail to be consumed careful... - 0 views

www.law.com/...PubArticleIHC.jsp

28-USC-1782 arbitration discovery case-notes Babcock-Borsig

shared by Lars Bauer on 17 Jun 09 - Cached
  • Lars Bauer on 30 Jun 09
     
    by Michael G. Biggers, in: The Corporate Counselor, 8 April 2009, via Law.com - Note on Babcock Borsig
Lars Bauer

Baker/Olivares: "Do 'Foreign Tribunals' Include Arbitration Panels?" | The National Law... - 0 views

www.fulbright.com/...NLJ-BakerOlivaresMay2010.pdf

28-USC-1782 law arbitration discovery

shared by Lars Bauer on 24 Jun 10 - Cached
  • Lars Bauer on 24 Jun 10
     
    by C. Mark Baker and Efren Olivares (Fulbright & Jaworski L.L.P.)
Lars Bauer

Discovery in Aid of Foreign Proceedings [PDF] - 0 views

www.maglaw.com/...07008080006Morvillo.pdf

28-USC-1782 discovery articles

shared by Lars Bauer on 16 Jan 09 - Cached
  • Lars Bauer on 16 Jan 09
     
    by Adward M. Spiro and Judith L. Mogul, New York Law Journal, Aug 7, 2008
Lars Bauer

The Mandatory / Non-mandatory Character of the Evidence Convention [PDF] - 0 views

www.hcch.net/...2008pd10e.pdf

HccH Hague-Conference Evidence-Convention Evidence Report 2008

shared by Lars Bauer on 16 Jan 09 - No Cached
  • Lars Bauer on 16 Jan 09
     
    drawn up by the Permanent Bureau of the Hague Conference on Private International Law, December 2008
Lars Bauer

Michael Nolan & Lesley Benn, New Approach Creates Paradox for US Parties, Global Arbitr... - 0 views

www.milbank.com/...l_arbitration_review_nolan.pdf

28-usc-1782 arbitration discovery usa

shared by Lars Bauer on 09 Aug 08 - No Cached
  • Lars Bauer on 09 Aug 08
     
    "Recent decisions on section 1782 could put US companies at a disadvantage in international arbitration." - Short overview of case law from Intel to Roz Trading.
Lars Bauer

Law.com - Divorce American Style: How a Central Asian divorce opened the door to U.S.-s... - 0 views

www.law.com/...article.jsp

28-USC-1782 Roz-Trading

shared by Lars Bauer on 05 Feb 09 - Cached
  • Lars Bauer on 05 Feb 09
     
    June 25, 2008 -- Review of Roz Trading
Lars Bauer

Protecting Against Discovery Demands Under 28 U.S.C. § 1782 | by Kevin M. Dec... - 0 views

www.briggs.com/-under-28-usc--1782-07-10-2009

28-USC-1782 arbitration defenses

shared by Lars Bauer on 20 Aug 09 - Cached
  • A disturbing trend in private arbitrations is the use of 28 U.S.C. § 1782 to compel discovery through federal court subpoenas.
  • Subpoenaed companies and individuals have ample defenses to protect against such costly, intrusive, and often untoward schemes.
  • The Roz court curiously read Intel to have changed the landscape, even though the Supreme Court’s decision did not and had no reason to consider § 1782’s use in private arbitrations.  Even more surprising is that other courts have embraced the Roz rationale over the well-reasoned holdings of the Second and Fifth Circuits.
  • ...6 more annotations...
  • A § 1782 target’s first defense should be the NBC and Biedermann precedents, which remain good law.
  • If anything, the Supreme Court’s statutory analysis bolstered the tying of § 1782 demands to foreign-government-related proceedings.
  • Additionally, there are serious constitutional problems with § 1782.  Article III to the Constitution strictly limits federal court jurisdiction to legal disputes either “arising under” federal law, based upon certain party characteristics (e.g., diversity of citizenship), or turning upon maritime or admiralty causes of action.  With § 1782, however, the statute purports to grant jurisdiction regardless of Article III considerations,
  • Although the federal courts have not yet spoken on this defense, it is apparent that § 1782 jurisdiction lacks a solid constitutional basis.
  • Finally, § 1782 applications are granted as a matter of judicial discretion.
  • In sum, there is no reason to surrender to a § 1782 discovery request.
Lars Bauer

Obtaining US Discovery Is Not Imperiled When Pursuing Foreign Recovery | International ... - 0 views

www.internationalassetrecoverylaw.com/...pursuing-foreign-recovery.html

28-USC-1782 discovery canada cases

shared by Lars Bauer on 25 Jul 09 - Cached
  • In many foreign jurisdictions, discovery can be onerous from non-parties. For instance, in Canada, discovery will only be allowed if a) the moving party has been unable to obtain the information from other persons, b) it would be unfair to require the moving party to proceed to trial without the opportunity to obtain the discovery and c) the discovery will not entail unreasonable expenses or unfairness to the non-party.
  • Canadian courts have viewed the use of Section 1782 favorably in proceedings pending there.
  • In CC Chemicals Ltd. v. Sternson Ltd., (1980) 116 D.L.R. (3d) 239 (S.C.), the court permitted Section 1782 to fill a procedural gap since it did not otherwise interfere with the Canadian action.
  • ...1 more annotation...
  • In Penty v. Law Society of British Columbia, (1999) 69 B.C.L.R. (3d) 159 (S.C.), the court concluded that a Canadian court will generally be reluctant to prevent a party from gathering evidence extraterritorially. Efforts to gather evidence in the US did not present a comity concern nor an overriding issue of unfairness.
Lars Bauer

Obtaining Evidence from U.S. Courts for Use in Cross-Border Disputes (Alcott, Autumn 20... - 0 views

www.nysba.org/...template.cfm

28-USC-1782 articles 2008

shared by Lars Bauer on 17 Jun 09 - Cached
  • Lars Bauer on 30 Jun 09
     
    by Mark H. Alcott, in: NYSBA International Law Practicum, Vol. 21, No. 2, Autumn 2008, pp. 118-123
Lars Bauer

Does 28 U.S.C. § 1782 Allow U.S. Courts to Order Discovery for Use in Private... - 0 views

www.kelleydrye.com/...0478

28-USC-1782 arbitration articles

shared by Lars Bauer on 16 May 09 - Cached
  • Lars Bauer on 16 May 09
     
    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."
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