• Journal of Arbitration Studies
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• v.25 no.3
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• pp.59-90
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• 2015

Since 1855, the federal courts of the United States have been empowered to assist in the gathering of evidence for use before foreign tribunals. Today, the source of that authority is 28 U.S.C. ${\S}1782$ which permits the courts to order a person "to give [ ] testimony... or to produce a document ... for use in a proceeding in a foreign or international tribunal${\cdots}$ ." It was generally assumed, until the United States Supreme Court's decision of Intel Corp. v. Advanced Micro Devices, Inc. in 2004, that arbitration tribunals were not "foreign tribunals" for purposes of 28 U.S.C. ${\S}1782$. While the issue in Intel did not involve an arbitration tribunal, a statement by the Supreme Court in dicta has called into question the exact parameters of the words "foreign tribunal," resulting in a split of opinion among the federal courts of the United States. This article explores the legislative history of 28 U.S.C. ${\S}1782$, examines the United States Supreme Court decision in Intel, and discusses the split among the courts of the United States regarding the interpretation of "foreign tribunal." The article further surveys emerging issues: is an arbitration tribunal in a case involving foreign parties and seated in the United States a "foreign tribunal"; does agreeing to the use of the IBA Rules on the Taking of Evidence in International Arbitration circumscribe the use of 28 U.S.C. ${\S}1782$; can a party be ordered to produce documents located outside the United States; and is there a role for judicial estoppel in determining whether an application pursuant to 28 U.S.C. ${\S}1782$ should be granted?

• Journal of Arbitration Studies
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• v.32 no.3
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• pp.29-46
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• 2022

Until recently, there has been a circuit split as to whether parties to foreign private arbitral proceedings could seek assistance from the U.S. courts for discovery pursuant to 28 U.S.C. §1782. The circuit courts have differed on the issue of whether a private arbitral proceeding may be considered a "proceeding in a foreign or international tribunal" in terms of the statute, which would ultimately allow or disallow judicial assistance in taking of evidence by the U.S. district courts for use in the requested proceedings. While the U.S. Supreme Court has addressed the applicability of §1782 in its Intel decision in 2004, it had not established a test as to what constitutes a foreign or international tribunal for the purposes of §1782, thereby leaving it open for lower courts to continue to interpret §1782 in their own ways, as requests for judicial assistance in taking of evidence are filed. In the recent decision of ZF Auto. US, Inc., v. Luxshare, Ltd., the Supreme Court has finally clarified that in order for an arbitral panel to be a "foreign or international tribunal" under §1782, such panels must exercise governmental authority conferred by one nation or multiple nations. Therefore, private commercial arbitral panels are not "foreign or international tribunal(s)" for the purposes of §1782 because they do not constitute governmental or intergovernmental adjudicative bodies. Such holding is necessary and legitimate for interested parties in international arbitration, as well as, potential parties of arbitration who are contemplating alternative dispute resolution for their dispute(s).

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.36
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• pp.87-109
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• 2007

This Comment explores the ICSID case of CMS Gas Transmission Company v. Argentine Republic, awarded on May 12, 2005. The Part II of this Comment first describes the relevant facts of the case including the some background for readers' understanding and the Part III summaries the claimant's requests and the decisions rendered by the Arbitral Tribunal in the Award. At Part IV, the Comment addresses the issue of determinating laws applicable to the merits of dispute in case that the parties of the case have not chosen a governing law, and at Part V, takes a close look into three main issues of (i) the indirect expropriation of the investment, (ii) the breach of fair and equitable treatment and (iii) the protections under umbrella clauses. In this CMS case, we see first that while the Tribunal affirmed that any indirect expropriation can occur from incidental interference depriving the foreign investor of the use or reasonable-to-be-expected economic benefit even if not necessarily to the obvious benefit of the host State, the Tribunal denied the occurrence of indirect expropriation in this case by holding that the Government of Argentina has not breached the standard of protection laid down in the Treaty. Secondly, however, regarding the issue of fair and equitable treatment, we see that the Tribunal, finding Argentina's breach of obligations, affirmed that the foreign investor can expect the host State to act in a consistent manner, free from ambiguity and totally transparently in its relations with the foreign investor, which can give the foreign investor certain degree of foreseeability. Thirdly and finally, we see that, on base of the effect of the umbrella clause, the Tribunal recognized the obligation of the host State undertaken not to freeze the tariff regime or subject it to price controls and not to alter the basic rules governing contracts between the foreign investor and the host State without the first's written consent. However, the protection under the umbrella clause is available only when there is a specific breach of rights and obligations under BIT or a violation of contract rights protected under BIT.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.43
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• pp.481-507
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• 2009

Along with continuous increase in international investments encouraged by wide spread bilateral investment treaties (BIT) including free trade agreements (FTA), international investment disputes have been also increasing. This means that a host State, an importer of foreign investments, and a investor who exports its investment to foreign State, need to take measures to prevent international disputes arising from international investment or to prepare for the arbitration for resolving the disputes. Under these circumstances, this paper compares ICSID arbitration rules and UNCITRAL arbitration rules in respect of (i) the institution of arbitration, (ii) the appointment of arbitrators and the composition of arbitral tribunal, and (iii) the procedures for, and the form of, arbitral awards. On base of this comparison, this paper further suggests certain practical issues that the host State's government and the foreign investors should be aware of in order to be ready for the resolutions of disputes by ICSID or UNCITRAL arbitrations.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.13
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• pp.131-149
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• 2000

In connection with international commercial arbitration the need to seek interim relief is generally recognized. Interim reliefs address the requirements of a party for immediate and temporary protection of rights or property pending a decision on the merits by the arbitral tribunal. The most common forms of interim relief are attachments and injunctions. If the arbitral tribunal has not yet been appointed, an application for interim relief must usually be addressed to the local courts at the place of commercial arbitration. If the arbitral tribunal has been appointed, the application for interim relief is first made to the arbitral tribunal. Interim relief by the arbitral tribunal is in the form of a direction to the parties. Since the arbitral tribunal has no enforcement power, it may be necessary to have a arbitral tribunal's direction confirmed by a local court which can enforce its order. The New York Convention does not provide for interim reliefs. The question is whether Article II(3) of the New York Convention that the court "shall, at the request of one of the parties, refer the parties to arbitration" denies jurisdiction to courts to grant interim reliefs in international commercial arbitration. Some cases have indicated that the U. S. court have no power to grant interim relief. Other cases have indicated that the U. S. courts do have the power to grant interim relief. It is unlikely that a U. S. court will order interim relief in relation to an commercial arbitration in a foreign country. Article 26 of the UNCITRAL Arbitration Rules provides with respect to interim measures of protection. Section 1 of Article 26 of UNCITRAL Arbitration Rules provides that the arbitral tribunal may take any interim measures it deems necessary in respect of the subject matter of the dispute, including measures for the conservation of the goods forming the subject matter in dispute. This article gives the arbitral tribunal the broadest authority, not limited to safeguarding property. Article 17 of the UNCITRAL Model Law on International Commercial Arbitration provides that the arbitral tribunal may order any party to take such interim measure of protection as the arbitral tribunal may consider necessary in respect of the subject matter of the dispute. It may be noted that the article does not deal with enforcement of such measures. The International Chamber of Commerce Rules of Conciliation and Arbitration do not expressly empower the arbitral tribunal to grant interim reliefs. However, Article 8.5 of the ICC Rules of Conciliation and Arbitration provides that the parties shall be at liberty to apply to any competent judicial authority for interim measures. In conclusion, the power of the arbitral tribunal to provide interim reliefs is generally recognized in the arbitration rules of arbitral institutions. However, the arbitral tribunal's authority is limited by its lack of enforcement mechanisms. It is generally recognized that the local courts have power to grant interim reliefs in aid of an commercial arbitration. However, local courts are reluctant to grant interim reliefs if that decision requires an adjudication of issues within the special competence of the arbitral tribunal.

• Journal of Arbitration Studies
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• v.20 no.1
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• pp.109-131
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• 2010

Investment Agreement is to be a part of FTA, as negotiating together both trade and investment. For example, it has a separate chapter about investment in KORUS FTA contract and is more detailed and inclusive than BIT contents which are traditional investment provisions. It is called to the investment norm of FT A. The investment agreement lures a foreign investment by providing the environment which is stable to the foreign investors. Hence, it plans in goal for the economic development of the home country. In international investment, the arbitration award cases are coming out to be divided into two parts applying MFN provisions in investor protective principles and dispute resolution process; the tendency of broad interpretation and the tendency of limited interpretation. In the case of RosInvest Co UK Ltd v. the Russian Federation awarded in 2007, the arbitration tribunal interprets that the application scope of MFN provisions contain the more lucrative dispute provision than other BITs without limitations in entity right of the investor. This judgment is the same view as arbitration tribunal position of Maffezini case. The arbitration tribunal of Plama case has kept out an assertion magnifying the arbitration tribunal's jurisdiction. That is, for applying more inclusive investor-nation resolution method from different treaty, tribunal mentioned that MFN provision had to see clearly a point of applying the investor-nation dispute resolution method. Dispute resolution process providing inclusive MFN provision has both the tendency of broad interpretation and the tendency of limited interpretation. It needs ceaselessly to do the monitoring about cases of arbitration award. In conclusion, the point where MFN provisions are applied conclusively is recognized, but it is still controversial whether or not to magnify the jurisdiction of arbitration tribunal applying MFN provisions. Therefore, it does not exist clear principle in the theory or in the award eases about the application scope for entity protection provision of MFN. Hence, The Korean government of Korea and local autonomous entities needs to keep their eyes on the trend of the international arbitration award cases in relation to the investment dispute for the future. Also, Korean government or local self-governing group must consider MFN provisions when they make a contract of international investment treaty such as writing concretely the application of MFN provisions from KORUS FTA.

• Journal of the Korean Society of Marine Environment & Safety
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• v.8 no.2
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• pp.71-78
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• 2002

For the first Maritime Accident Inquiry System in Korea, Central Marine Accidents Inquiry Committee were founded in Seoul and District Marine Accidents Inquiry Committee in Busan city In 1963 to determine the circumstances of the accidents and causes. At the present day, it was settled as Maritime Safety Tribunal tough several revision of the Law and regulations regarding the Maritime Accident Inquiry System. In Korea, there occurred about m cases of marine accident, and as a result, about 200 people were lost human lives in average per year. In accordance with the change of circumstances such as traffic increasing and being bigger in size, being faster in speed, etc., the causes of the marine accidents become complicated year by year. Accordingly, in this moment, it is meaningful that the introduction of the Research Official who assists the Judges probing the cases fair and square. In this Paper, with the consideration of the several kinds of Research Official System, such as the Research Official of the Korean Supreme Court, the Supreme Public Prosecutors' Office and the Constitutional Court, Japanese Supreme Court, Law Clerk in USA, etc., the selection, numbers, duty of the Research Official were studied. The results of the study are as follows; 1. The Research Official to be appointed among the person having long enough career as a Judge, Investigator engaged in the Maritime Safety Tribunal due to he sho띨d have capability to confirm perfectly logical judgement and to collect enough material for the conclusion of the causes of the case. The one who understands the foreign language is preferred for the study of the foreign cases; 2. It will be logical to post 3 joint Research Officials in Korea Maritime Safety Tribunal in Seoul after due consideration the cases treated a year; 3. It will be logical for the Research Official to perform the collection of material and inspection of the scene for the trial and inquiry of the cases, to attend the cases filed suit to the Supreme Court, to make commentarial papers regarding the judged cases, to collect statistics of marine accidents and to devise a reform measure through in-depth analysis of the accidents frequently occurred, to study for the improvement of the Maritime Accident Inquiry System;

• Journal of Arbitration Studies
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• v.31 no.4
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• pp.51-70
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• 2021

Chinese courts seem to be indifferent or ignorant of truncated arbitration. In other words, the Chinese court canceled the arbitration award made by truncated arbitration except for the Pingdingsan Case among the four arbitration cases related to the domestic arbitration award reviewed in this paper on the ground that it violated the composition of the arbitral tribunal or the arbitration procedure. A Chinese court has canceled the arbitration award by judging only based on the composition of the arbitral tribunal and the legal process of the violation of the arbitration procedure not by determining whether the domestic arbitration award made by the truncated arbitration meets the conditions for the application of truncated arbitration as stipulated in the Arbitration Rules. Moreover, it seems that the Chinese court made a serious error in the application of the relevant regulations in the Pingdingsan Case, which ruled that the truncated arbitration did not violate the legal process. In this case, the Chinese court admitted truncated arbitration under logic process that it was not necessary to wait until the final hearing to apply the truncated arbitraion because one arbitrator was absent before the final hearing, but the truncated arbitrator had already formed his/her opinion before the absence. However, in the case of Marshall Investment Corporation, a case related to foreign arbitration, the Chinese court rejected the approval and execution of the truncated arbitration award by strictly applying the laws and timing of the truncated arbitration. Since only one case has been identified in the main text, it is difficult to make a definitive judgment, but considering these cases, it seems to be that the Chinese courts apply different standards to domestic and foreign arbitration awards to determine the legality of truncated arbitration.

• Journal of Arbitration Studies
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• v.16 no.1
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• pp.187-217
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• 2006

This study has the purpose to investigate other countries' arbitrator systems to compare with the current KCAB's system and to find their merits and demerits so that we can make up for the demerits of KCAB's arbitrator system and to make the most use of its merits. The most important factor of arbitral procedure is the arbitrator. If we compare clauses related with the arbitrator to KCAB's arbitration rules, expand the merits of it and apply the merits of other arbitrating organs, KCAB's arbitration can avoid criticism which it has got so far while it was handling the international cases. Also, we may need to grow up the role of the executive office in the range of respecting the self-government of the concerned party for the rapid proceeding of arbitral procedure. According to the foreign countries' international arbitration rules, they go with the process that they firstly give the concurrence period to the concerned parties, especially related with the arbitral procedure such as selection of arbitrator or filling the vacancy of the arbitrator, and as for the concerned party who doesn't fulfill within that period, the arbitrating organ or the other one corresponding to the pertinent arbitrating organ in case of the ad-hoc arbitration rules fulfill instead.

• Journal of Arbitration Studies
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• v.24 no.3
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• pp.79-103
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• 2014

In light of increasing international trade in recent years, international arbitration has been more widely used by international parties to resolve their conflicts. Thus, the need for reliable and effective enforcement of foreign arbitral awards has amplified. To facilitate the enforcement of foreign arbitral awards, the New York Convention lists grounds for the refusal of recognition and enforcement in Article V. This paper examines prominent U.S. case law on Article V(1)(b), which is put in place to ensure that arbitration proceedings are conducted properly in accordance with due process requirements: proper notice to parties and an opportunity to a fundamentally fair hearing. This examination of case law conveys that U.S. courts refuse to enforce foreign arbitral awards pursuant to Article V(1)(b) only when due process rights of the party against whom the award is to be enforced are clearly violated by the arbitral tribunal. This paper also reveals that U.S. courts mainly defer to arbitral tribunals' discretion, especially as to evidentiary matters. Therefore, it is predicted that U.S. courts will likely continue to narrowly construe the grounds in Article V to facilitate reliable and effective enforcement of foreign arbitral awards in the U.S.