On June 13, 2022, the Supreme Court issued its highly anticipated decision on the issue of whether 28 U.S.C. § 1782 permits district courts to order discovery for use in international commercial arbitration or ad hoc investment arbitration. See ZF Automotive, Inc. v. Luxshare, Ltd., 142 S.Ct. 2078 (2022). In a unanimous opinion authored by Justice Amy Coney Barrett, the Court held that section 1782 does not authorize discovery for use in those two forms of international arbitration because only a governmental or intergovernmental adjudicative body qualifies as a “foreign or international tribunal.”
On December 10, 2021, the U.S. Supreme Court granted certiorari in two cases to determine whether district courts can compel discovery proceedings in private foreign arbitrations. The two consolidated cases are ZF Automotive US, Inc., et al. v. Luxshare, Ltd. and AlixPartners, LLP, et al. v. The Fund for Protection of Investors’ Rights in Foreign States.
On August 12, 2021, the Ninth Circuit Court of Appeals decided whether Washington state law reverse-preempts the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”), in which case the state law would bar the enforcement of arbitration clauses in insurance contracts in states with similar anti-arbitration laws. CLMS Management Services LP et al. v. Amwins Brokerage of Georgia LLC et al., –F.4th—, 2021 WL 3557591 (9th Cir. 2021). While the Ninth Circuit agreed with the defendants that state law does not reverse-preempt the Convention, plaintiffs have indicated that they will seek review in the U.S. Supreme Court. Plaintiffs point to a circuit split, since the Second Circuit has previously held that an anti-arbitration provision in Kentucky insurance law trumps the New York Convention. If plaintiffs follow through with their intended petition for certiorari, and if the High Court grants review, the Court’s decision should provide insurance companies clearer guidance with respect to the arbitration clauses in their non-domestic policies, as companies should be able to determine whether they can invoke international arbitration in states that bar arbitration clauses in insurance contracts.
The travel bans imposed by the U.S. Government during the COVID-19 national pandemic created enormous logistical challenges for anyone seeking to fly to the U.S. from a country on the travel ban list. Even today, there is still a great deal of confusion regarding who is subject to the travel ban, what are the exceptions, and how to go about applying for a National Interest Exception (NIE) waiver. The checklist below is intended to help simplify an albeit complicated process. Of course, most U.S. Consulates are still operating at limited capacities so significant delays for waivers and visa stamping is still the norm.
On March 22, 2021, the U.S. Supreme Court granted certiorari in the case brought by Servotronics Inc., where it challenged the Seventh Circuit’s decision to reject discovery pursuant to 28 U.S.C. § 1782 for use in a private arbitration brought by Rolls-Royce PLC in London. The Supreme Court’s decision should resolve the current circuit split on the question of whether Section 1782 can be used for private international arbitration, which has been an ongoing topic of interest among international arbitration practitioners and scholars. Continue Reading
Throughout the coronavirus pandemic, parties to an arbitration agreement and arbitrators have grappled with the issue of the right to a live, in-person arbitration hearing. Is there a due process concern that flows from conducting remote proceedings over one side’s insistence on in-person hearing? For example, parties’ facility with presenting testimony and evidence remotely may be limited, arbitrators’ technical proficiency may be lacking, and they may be uncomfortable with taking evidence remotely. Then there is the difficulty of presenting the case effectively across different time zones and the potential unfair advantage to one party over another caused by requiring one party’s witnesses and evidence to be presented outside normal business hours. In some cases, there may be physical evidence that is difficult to present remotely or the need for a site visit. Continue Reading
The Singapore International Arbitration Centre (“SIAC”) opened its first office outside of Asia in New York on December 3, 2020. According to SIAC, US parties are consistently among the top foreign users of SIAC and in 2020 alone, over 500 US parties have arbitrated under SIAC’s Rules. According to SIAC’s 2019 Annual Report, U.S. was the fourth top foreign user of SIAC, coming after India, Philippines, and China. As an increasingly popular arbitral institution, not just amongst parties located in Asia but worldwide, SIAC has taken the leap to become a global institution, aiming to have a greater presence in the Americas. In 2020, despite the global pandemic, there have been more than 1,000 cases filed with SIAC, marking a new record for the institution since its establishment in 1991.
On June 1, 2020 the United States Supreme Court issued a unanimous decision in GE Energy Power Conversion Fr. SAS, Corp. v. Outokumpu Stainless USA, LLC, No. 18-1048, 2020 WL 2814297 (U.S. June 1, 2020), holding that the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) does not conflict with the enforcement of arbitration agreements by non-signatories through domestic equitable estoppel doctrines. Continue Reading
As discussed in our previous blog, many foreign companies favor private international arbitration for dispute resolution purposes in order to avoid being haled into a U.S. court and to avoid U.S.-style discovery. That calculus may change if the Supreme Court decides to consider whether a district court has authority to order discovery under 28 U.S.C. § 1782 for use in private commercial arbitration, which would resolve the current split amongst Circuit Courts. Continue Reading
The outbreak of the coronavirus has been an unprecedented event affecting every industry, including construction. To ensure their entitlement to an extension of time, costs, or even termination, parties to construction contracts need to carefully review the contract provisions that allocate risks. Below, we discuss a number of practical considerations that may arise under a standard form construction contract – such as the FIDIC Red Book – in light of the COVID-19 pandemic. Continue Reading