Letters Blogatory

The Blog of International Judicial Assistance | By Ted Folkman of Folkman LLC

Posts tagged “arbitration

COVID-19 and Arbitration Hearings

Posted on March 30, 2020

Last week I held a prehearing conference with counsel in a small international arbitration being administered under AAA domestic rules by agreement of the parties. We set a date for the hearing. I proposed setting the hearing down as an audio-visual hearing, with an option to change it to an in-person hearing if conditions warrant. Counsel for both parties favored an in-person hearing, but of course they understood the concern. So what we ended up with was the following: “The hearing will be held in-person. However, in light of the COVID-19 pandemic, the parties have agreed that the arbitrator will have the discretion to direct that the hearing will be held by audio-visual means if in his judgment conditions warrant.”

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Case of the Day: A v. C

Posted on February 20, 2020

The case of the day is A v. C, [2020] EWHC 258 (Comm). The dispute was between joint venturers in a central Asian oil field. The details are unimportant. The claimants demanded arbitration in New York, and the arbitration proceeded to an evidentiary hearing. The tribunal gave permission to the claimants to seek an order from an English court for the taking of evidence from a third party in that country. The interesting jurisdictional question was whether § 44 of the Arbitration Act 1996 gives the court jurisdiction to compel a third party to give evidence.

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Case of the Day: Kazakhstan v. Lawler

Posted on January 30, 2020

The case of the day is Republic of Kazakhstan v. Lawler (D. Ariz. 2020). Big Sky Energy Corp. commenced an arbitration against Kazakhstan before ICSID, asserting a claim under the US/Kazakhstan bilateral investment treaty. The treaty does not provide protection to “any company that is controlled by non-U.S. nationals if that company does not conduct substantial business activities in the United States.” Kazakhstan sought and received leave under 28 U.S.C. § 1782 to serve a subpoena on William Lawler, Blue Sky’s principal, in order to obtain evidence to assert the jurisdictional defense. Shortly after the subpoena was served, Big Sky produced, in the context of discovery in the arbitration, the documents the subpoena had sought. Lawler then moved to quash the subpoena.

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