Unbeknown to many, Section 1782 of Title 28 of the US Code permits parties to obtain discovery in the United States in aid of non-US legal proceedings, including – in some instances – international arbitrations. Such discovery can include documents and sworn testimony (eg, depositions). In conducting an arbitration seated outside the United States (or other non-US legal proceedings), it is useful to understand the mechanics, requirements and key issues of Section 1782 discovery.
There are two principal treaties which govern the enforcement of international arbitral awards in foreign jurisdictions: the New York Convention and the Washington Convention. The success of international arbitration (both commercial and investment treaty arbitration) can be attributed in large part to the global enforcement regimes created under these treaties. While the New York Convention is broader in scope, it contains more grounds for resisting enforcement than the Washington Convention.
Third-party funding can provide access to justice for under-resourced parties and a more convenient financing structure for adequately resourced parties. However, despite the benefits, there are concerns about funding and there is a level of risk involved. Clear insight into the potential downsides and sufficient risk preparation are therefore essential when making a decision on funding.
Where parties in international arbitration come from different legal jurisdictions, disputes over what is privileged can be complicated by disagreement over which jurisdiction's rules of privilege apply. Whereas most countries recognise the concept of legal privilege, the precise rules vary across jurisdictions. How, then, are privilege issues resolved in international arbitration, where claimants, respondents and arbitrators may all come from different jurisdictions?
If properly drafted, a sealed offer can be a major incentive for parties to settle cases at an early stage of proceedings and can protect them against the costs consequences of arbitration. Parties should consider the advantages and disadvantages of a sealed offer, the consequences of accepting or rejecting a sealed offer and whether a tribunal is obliged to take a sealed offer into consideration.
The Third Circuit recently held that non-debtor subsidiaries cannot be liable for allegedly fraudulent transfers under the Delaware Uniform Fraudulent Transfer Act. The case arose out of a mining company's efforts to enforce a $1.2 billion arbitral award that it had obtained against the Bolivarian Republic of Venezuela. This decision is likely to be relevant to other proceedings, including the multiple pending proceedings against Venezuela arising out of its economic nationalisation from 2007 to 2011.