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Lars Bauer

The Withdrawal of the Kudrin Subpoena in Response to the US Departments of State and Ju... - 0 views

www.khodorkovskycenter.com/...nts-state-and-justice-submissi

28-usc-1782 cases usa russia immunity subpoena Khodorkovsky Kudrin-Alexei

shared by Lars Bauer on 30 Jun 09 - Cached
  • Lars Bauer on 30 Jun 09
     
    "A subpoena for the testimony of Russian Finance Minister Alexei Kudrin was withdrawn after a US State Department opinion that Mr. Kudrin was a part of a special diplomatic mission at the time. In withdrawing the subpoena, it is important to note that this decision leaves open the possibility of future subpoenas when special diplomatic circumstances do not apply."
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

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

Jenner & Block LLP - December 2008 Update: Arbitration - 0 views

www.jenner.com/...news_item.asp

arbitration discovery 28-USC-1782

shared by Lars Bauer on 12 Mar 09 - Cached
  • Pre-Hearing Discovery From Non-Party To An Arbitration Disallowed.The Second Circuit has held that Section 7 of the Federal Arbitration Act does not authorize an arbitrator to compel pre-hearing document discovery from non-parties to an arbitration.  Life Receivables Trust v. Syndicate 102, 549 F.3d 210 (2d Cir. 2008).  Reversing the district court’s grant of a motion to enforce a discovery subpoena, the court of appeals concluded that documents are discoverable in arbitration proceedings only when brought before the arbitrators by a testifying witness.  The court declined to find exceptions for either closely-related entities or for parties to the arbitration agreement that are not parties to the arbitration itself.  In reaching this result, the Second Circuit followed the Third Circuit, but split with the Eighth Circuit.
  • Discovery On Behalf Of Foreign Tribunals Does Not Encompass Arbitrations.The Southern District of Texas has held that 28 U.S.C. § 1782, which authorizes a district court to order persons residing in the district to give discovery “for use in a proceeding in a foreign or international tribunal,” does not encompass private, international arbitration proceedings.  La Comision Ejecutiva Hidroelecctrica Del Rio Lempa v. El Paso Corp., No. H-08-335, 2008 WL 5070119 (S.D. Tex. Nov. 20, 2008).  The court declined to follow the other district courts that have held to the contrary.  In holding section 1782 inapplicable, the court noted that arbitration is intended as a speedy and economical means of dispute resolution, and that extensive discovery through federal courts would harm international comity.
Lars Bauer

Section 1782 Discovery. District court grants motion to quash subpoenas as improperly i... - 0 views

bakerxchange.com/...page=15

28-USC-1782 case-notes

shared by Lars Bauer on 08 Mar 09 - Cached
  • Lars Bauer on 08 Mar 09
     
    Baker & McKenzie, International Litigation & Arbitration, March 2008, Vol. 8, Issue 3. Case note on In re Godfrey, 526 F. Supp. 2d 417 (S.D.N.Y. 2007)
Lars Bauer

Federal District Court Refuses to Enforce Subpoena for Foreign Insurance Arbitration (A... - 0 views

insurancecoverage.typepad.com/...e-to-private-arbitrations.html

28-usc-1782 arbitration case-notes cases

shared by Lars Bauer on 30 Jun 09 - Cached
  • The named insured and named party in a London reinsurance arbritration requested that the district court order a non-party witness to testify in the arbitration.
  • The non-party argued that the scope of 28 U.S.C. §1782 was limited to only governmental entities.
  • While the District Court conceded that the court’s powers under 28 U.S.C. §1782 have been expanded over the past several years, the Intel decision did not specifically reference private arbitrations as one of those areas in which the statute granted authority.  The District Court, therefore, declined to follow several subsequent decisions which interpreted the Intel decision to apply to private arbitrations.
  • ...1 more annotation...
  • The court distinguished between "state-sponsored arbitral bodies" (i.e. UNCITRAL) and "purely private arbitrations." In so doing, it adopted the minority position on the issue.
  • Lars Bauer on 30 Jun 09
     
    In re an Arbitration in London, England between Northfolk Southern Corp. et al v. ACE Bermuda LTD (Northern District Ill., June 15, 2009). -- With link to fulltext PDF of the decision
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