Expanding Disclosure in International Arbitration: Sixth Circuit Rules That 28 U.S.C. § 1782 Permits Parties to Pursue Discovery in Support of Private Commercial International Arbitrations

Abdul Latif Jameel Trans. Co. v. FedEx Corp., No. 19-5315 (6th Cir. Sept. 19, 2019).

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Albert Bates Jr.
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Robert A. Gallagher
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R. Zachary Torres-Fowler

In the world of international arbitration, where document disclosure is already relatively limited compared to practices in federal and state court, 28 U.S.C. § 1782 — titled “Assistance to foreign and international tribunals and to litigants before such tribunals” — has been a commonly overlooked tool for obtaining useful evidence in support of an international arbitration. In broad strokes, the statute permits a federal district court to require a person within the district to provide documents or testimony for use in a proceeding in a “foreign or international tribunal.”

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New York Appellate Court Affirms Decision to Deny Motion to Compel Arbitration in Multi-Billion Dollar Construction Dispute

BML Properties Ltd. v. China Construction America Inc., et al., 101 N.Y.S. 3d 597 (N.Y. App. Div. 2019)

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R. Zachary Torres-Fowler
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Ryan R. Deroo

On July 2, 2019, a New York appellate court upheld a lower court ruling by Justice Saliann Scarpulla, denying a state-backed Chinese contractor’s attempt to compel international arbitration arising out of a dispute involving the construction of the multibillion Baha Mar mega-resort in the Bahamas.  As a result of the ruling in BML Properties Ltd. v. China Construction America Inc., et al., 101 N.Y.S. 3d 597 (N.Y. App. Div. 2019), aff’ing No. 657550/2017 (N.Y. Sup. Ct. Jan. 24, 2019), the $2.25 billion lawsuit alleging “one of the largest construction-based frauds in this hemisphere” will remain in the New York courts.  As explained below, for those in the international construction industry, the case will be worth following.

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New Conventions, New Problems?: A Pair of Recently Announced International Conventions Aim to Replicate the Success of the New York Convention

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Zachary Torres-Fowler

As many owners and contractors involved in the international construction industry are aware, international arbitration is a popular dispute resolution device for international construction disputes because, in part, international arbitration awards are, broadly speaking, enforceable in practically every jurisdiction in the world. This facet of international arbitration has been set out in the U.N. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) — a multilateral convention that requires the courts of the contracting states to recognize and enforce arbitration awards made by tribunals seated in other contracting states. Now, with 160 signatory states and the increasing popularity of international arbitration around the world, the New York Convention is widely viewed as one of the most successful international conventions ever.

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