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U.S. Judicial Discovery Assistance for Private Foreign Arbitrations: The Fifth Circuit ... - 0 views

arbblog.lexmarc.us/...ions-the-fifth-circuit-says-no 28-USC-1782 arbitration discovery case-notes Comision-Ejecutiva
shared by Lars Bauer on 27 Aug 09 - Cached
  • Lars Bauer on 27 Aug 09
     
    The Fifth Circuit U. S. Court of Appeals last week reaffirmed its position that 28 U. S. C. 1782, which provides for federal assistance in obtaining discovery for use in foreign and international tribunals, does not apply to private commercial arbitration tribunals. El Paso Corp. v. La Comision Ejecutiva Hidroelectrica del Rio Lempa, 2009 U. S. App. LEXIS 17596 (5th Cir. Aug. 6, 2009).
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Discovery Available for ICC International Arbitration | by Jane Wessel and Peter Eyre, ... - 0 views

www.crowell.com/...-International-Arbitration.pdf 28-USC-1782 arbitration discovery USA case-notes
shared by Lars Bauer on 27 Aug 09 - No Cached
  • Lars Bauer on 27 Aug 09
     
    Notes on Babcock Borsig and the two Comision Ejecutiva cases
  • Lars Bauer on 27 Aug 09
     
    Notes on Babcock Borsig and the two district court decisions in Comision Ejecutiva
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5th Circuit Affirms Denial Of Request To Use Discovery In Arbitration (El Paso Corp. v.... - 0 views

www.mealeysonline.com/...articleSearch.do 28-USC-1782 arbitration cases Comision-Ejecutiva
shared by Lars Bauer on 27 Aug 09 - Cached
  • Lars Bauer on 27 Aug 09
     
    24-8 Mealey's Intl. Arb. Rep. 7 (2009), Volume 24, Issue #8 (August 2009) -- NEW ORLEANS - The Fifth Circuit U.S. Court of Appeals on Aug. 6 affirmed a district court's ruling granting reconsideration and vacating an order granting an ex parte application to obtain discovery to be used in a private international arbitration in relation to disputes over a contract to construct a power plant and provide power in El Salvador (El Paso Corporation v. La Comision Ejecutiva Hidroelectrica Del Rio Lempa, et al., No. 08-20771, 5th Cir.; 2009 U.S. App. LEXIS 17596).
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Judge Finds Panel Does Not Qualify As Foreign Tribunal Under Section 1782 (Operadora DB... - 0 views

www.mealeysonline.com/...articleSearch.do 28-USC-1782 arbitration cases Operadora
shared by Lars Bauer on 27 Aug 09 - Cached
  • Judge Finds Panel Does Not Qualify As Foreign Tribunal Under Section 1782, ORLANDO, Fla. -, Mealey's International Arbitration Report, August 2009, 24-8 Mealey's Intl. Arb. Rep. 8 (2009), Volume 24, Issue #8
  • Lars Bauer on 27 Aug 09
     
    Mealey's International Arbitration Report, Volume 24, Issue 8, August 2009, p. 8 -- ORLANDO, Fla. - A Florida federal judge on Aug. 4 refused to adopt a portion of a magistrate judge's recommendation that the court order discovery for use in an arbitration proceeding over franchise rights in Mexico, finding that the private arbitral panel did not qualify as a foreign or international tribunal under 28 U.S. Code Section 1782 (In re: Application of Operadora DB Mexico S.A. DE C.V., No. 6:09-cv-383-Orl-22GJK, M.D. Fla.; 2009 U.S. Dist. LEXIS 68091)
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US judge refuses to compel testimony under section 1782 | by Uzma Balkiss Sulaiman, Glo... - 0 views

www.globalarbitrationreview.com/...18386 28-USC-1782 arbitration case-notes
shared by Lars Bauer on 25 Aug 09 - Cached
  • Lars Bauer on 25 Aug 09
     
    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.
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Pendulum swings in section 1782 cases? | by Kyriaki Karadelis, Global Arbitration Revie... - 0 views

www.globalarbitrationreview.com/...18609 28-USC-1782 arbitration case-notes
shared by Lars Bauer on 25 Aug 09 - Cached
  • Lars Bauer on 25 Aug 09
     
    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.
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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.
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Fifth Circuit Rules on Section 1782 Discovery Motion for International Arbitration Case... - 0 views

www.karlbayer.com/blog 28-USC-1782 arbitration case-notes
shared by Lars Bauer on 19 Aug 09 - Cached
  • The court noted that in Republic of Kazakhstan v. Biedermann International, 168 F.3d 880 (5th Cir. 1999), the court held that “a ‘tribunal’ within the meaning of § 1782 did not include a private international arbitral tribunal, and thus § 1782 did not apply to discovery sought for use in such a tribunal.”
  • the Fifth Circuit was not persuaded by CEL’s argument.  The Court concluded that the issue of whether a private international arbitration tribunal  qualifies as a “tribunal” under § 1782 was not before the U.S. Supreme Court in Intel.
  • Accordingly, the court denied El Paso’s motion to dismiss the appeal as moot and affirmed the district court’s grant of the Rule 60(b) motion.
  • ...1 more annotation...
  • In  El Paso Corporation v. La Comision Ejecutiva, (No. 08-20771) (5th Cir. Aug. 6, 2009), La Comision Ejecutiva Hidroelectrica Del Rio Lempa (”CEL”) is a state-owned utility company in El Salvador and Nejapa Power Company (”NPC”) is a utility company related to  El Paso Corporation (”El Paso”), an  energy corporation based in Houston, Texas.
  • Lars Bauer on 19 Aug 09
     
    Note on El Paso Corporation v. La Comision Ejecutiva, No. 08-20771 (5th Cir. Aug. 6, 2009) where the United States Court of Appeals for the Fifth Circuit held that section 1782 does not apply for a discovery motion for use in a private international arbitration (arbitration in Geneva under the UNCITRAL Arb. Rules)
  • Lars Bauer on 19 Aug 09
     
    Note on El Paso Corporation v. La Comision Ejecutiva, No. 08-20771 (5th Cir. Aug. 6, 2009) in which the United States Court of Appeals for the Fifth Circuit held that section 1782 does not apply for a discovery motion for use in a private international arbitration (arbitration in Geneva under the UNCITRAL Arb. Rules)
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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.
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More U.S. Courts Permit Discovery in Aid of Foreign Arbitrations, But Texas D... - 0 views

www.klgates.com/...Detail.aspx 28-USC-1782 arbitration case-notes newsletters
shared by Lars Bauer on 02 Jul 09 - Cached
  • In the Summer 2007 edition of Arbitration World, we noted that, after Intel, federal courts in New Jersey (In re Oxus Gold) and Georgia (In re Roz Trading) had interpreted Section 1782 to apply to international arbitrations. Recently, courts in Minnesota, Massachusetts and Delaware have followed suit, while a court in Texas has disagreed.
  • Although the weight of post-Intel legal authority suggests that participants in foreign arbitrations can now successfully apply for discovery in the U.S. under Section 1782, there remains a conflict in the federal district courts. Until the scope of Section 1782 is clarified by Circuit Courts of Appeals or the United States Supreme Court, a party to foreign arbitration who hopes to discover evidence in the U.S. cannot predict with certainty whether it will meet the first requirement: a recognition of the arbitral body as a “tribunal.” However, based upon the recent trend, it is likely that this hurdle will be cleared – unless the evidence lies in Texas
  • Lars Bauer on 02 Jul 09
     
    by Abram I. Moore - short notes on Hallmark Capital, Babcock Borsig and the two decisions in Comision Ejecutiva (Delaware and Texas)
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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."
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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
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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
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Beweise aus den USA verschaffen | German American Law Journal : US-Recht auf Deutsch on... - 0 views

anwalt.us/19 28-USC-1782 discovery usa japan case-notes
shared by Lars Bauer on 19 Jun 09 - No Cached
  • In Sachen Marubeni America Corporation v. LBA Y.K., Az. 08-3282, stellte die amerikanische Zeugin auf die Grenzen des japanischen Beweisrechts ab. Das Bundesberufungsgericht des zweiten US-Bezirks entschied jedoch nach der lesenswerten Erörterung der Präzedenzfälle, dass das US-Gericht nicht daran gebunden ist.
  • Lars Bauer on 30 Jun 09
     
    Marubeni America Corporation v. LBA Y.K., Case No. 08-3282 (2d Cir., June 17, 2009)
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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."
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Second Circuit Affirms Simpson Thacher Victory in Section 1782 Application for Discover... - 0 views

www.stblaw.com/siteContent.cfm 28-usc-1782 case-notes
shared by Lars Bauer on 30 Jun 09 - Cached
  • Lars Bauer on 30 Jun 09
     
    short note on Marubeni case
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