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Lars Bauer

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

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    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

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

  • The Use of Evidence Obtained in US-American Discovery in International Civil Procedure Law and Arbitration in Switzerland [Müller-Chen] (238 KB)
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    "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

EXTRADITION AND FOREIGN EVIDENCE: 28 USC 1782: Swiss party can use to obtain evidence - 0 views

  • The Appellants are shareholders in Itera Group, Ltd., a Cypriot corporation, who all reside in Jacksonville, Florida (“Florida shareholders”).
  • The Florida shareholders appeal the Magistrate Judge’s April 15, 2008 Order granting in part and denying in part Galina Weber’s Motion to Compel Discovery, and thedistrict court’s May 20, 2008 affirmance of that Order.
  • Weber is a citizen of Switzerland and a resident of Monaco. Like the Florida shareholders, she is a shareholder of Itera Group.
  • ...4 more annotations...
  • Weber is involved with two separate foreign legal actions. Both involve business transactions with Itera Group. Weber is the plaintiff in a Cypriot civil action. She is also the defendant in a Swiss criminal action, which Itera instituted against her, alleging that she received property embezzled from the company.
  • Weber filed a civil lawsuit in Cyprus against Itera Group, the CEO of Itera Group, Igor V. Makarov, and Sweet Water Intervest Corporation, which is a British Virgin Islands corporation that Weber alleges is controlled by Makarov.
  • After Weber instituted the Cypriot action, Gas Itera, an Itera Group subsidiary, filed criminal charges against Weber in Switzerland, alleging that Weber embezzled Itera Group assets.
  • The Supreme Court held in Intel that discovery under § 1782 is not limited to discovery that would be allowed under United States law “in domestic litigation analogous to the foreign proceeding.” See Intel, 542 U.S. at 263, 124 S. Ct. at 2483.
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    The Eleventh Circuit in Weber v Finker ruled that a Swiss national can use 28 USC 1782, and is not limited to the Swiss-US mutual legal assistance treaty, for purposes of obtaining evidence in Swiss proceedings, which include a Swiss criminal proceeding.
Lars Bauer

Current Legal News - Seattle Washington Criminal Defense Lawyer - Steve Karimi - 0 views

  • [01/15] Weber v. FinkerIn a case involving the authority of the federal district courts to assist litigants before foreign tribunals with the production of evidence in the U.S., partial grant and denial of petitioner's motion to compel discovery filed pursuant to 28 U.S.C. section 1742(a) is affirmed where: 1) the circuit court rejects a claim that petitioner should have brought her request for judicial assistance under The Treaty Between the United States of America and the Swiss Confederation on Mutual Assistance in Criminal Matters, as opposed to section 1782; 2) the district court was well within its discretion to order discovery pursuant to the Federal Rules of Civil Procedure; and 3) shareholders waived a claim that the district court erred in finding the motion to compel could be treated as a pretrial matter that could be referred to a Magistrate Judge.
Lars Bauer

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

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    "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

Thailand Law Forum: Treaty Between the US and Thailand on Mutual Assistance in Criminal... - 0 views

  • The Treaty will not require further implementing legislation and will utilize the existing authority of the Federal courts, particularly 28 U.S.C. 1782.
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