Leveraging Discovery in International Arbitration: Managing Potentials and Perils
Under 28 U.S.C. Section 1782, U.S. federal courts are authorized to order or withhold discovery “for use in a proceeding in a foreign or international tribunal.” However, due to the existing disparity in arbitral proceedings, discovery assistance proceeds with varying conclusions among circuit courts. As a result, debates continue to emerge on the use of Section 1782, considering the Freedom of Information Act (FOIA) requests given to private entities in collecting evidence for foreign arbitrations.
With the emerging trends and developments in managing foreign disputes, lawyers and practitioners should always be equipped with the best practices and strategies to address these issues and challenges.
In this LIVE Webcast, a panel of distinguished professionals and thought leaders will help the audience understand the latest and most pressing issues in international arbitration. Speakers, among other things, will offer helpful insights on how to successfully manage foreign or international disputes in light of the rapidly evolving legal climate.
Key topics include:
- Discovery in International Arbitration: Emerging Trends and Developments
- Managing Potentials and Perils
- Notable Court Decisions
- Best Litigation Practices
- What Lies Ahead
Justin P. Lee, Counsel
Wuersch & Gering LLP
- Increasing trend to use 28 USC §1782 in cross-border disputes;
- Growing circuit split in the United States relating to the availability of Section 1782 in private commercial arbitration; and
- The use of Section 1782 as a tool for evidence gathering in cross-border disputes will continue as the international arbitration community awaits a definitive decision from the US Supreme Court relating to its application in private commercial arbitration.
Penny Madden QC, Partner
Gibson, Dunn & Crutcher LLP
- Disclosure Obligations in International Arbitration
- IBA Rules on Taking Evidence in International Arbitration
- Disclosure Obligations - Institutional Differences
- Practical Questions
- Managing Your Client’s Disclosure
- Managing a Recalcitrant Respondent
Ana C. Reyes, Partner
Williams & Connolly LLP
- Limits of Discovery in International Arbitration
- Non-Traditional Means of Obtaining Discovery
- Arbitration Clause
- Pre-Demand Discovery
- Sunshine Laws
- Former Employee
- Enemy of My Enemy Is My Friend
John Michael McNutt, Senior Litigation Advisor & Of Counsel
Lazareff Le Bars
- Parallel proceedings: (French)
- IBA Rules on Taking Evidence in International Arbitration
- IBA Guidelines on Party Representation in International Arbitration 2013
- Tribunal members past conduct relevant & consider when appointing
- Disclosure Obligations in International Arbitration
Who Should Attend:
- Arbitration Lawyers and Practitioners
- Cross-Border Litigation Lawyers
- Dispute Resolution Lawyers
- Corporate Attorneys
- Legal Counsel
- International Arbitrators
Penny Madden is an English qualified Queen’s Counsel and partner in the London office of Gibson, Dunn & Crutcher. She has a wide range of experience in all key aspects of international arbitration with particular expertise in shareholder, telecommunications, SPA, energy, international trade and insurance disputes. In addition to representing clients as counsel and advocate, Ms. Madden regularly sits as an arbitrator. Ms. Madden also has significant experience in high court litigation, enforcement proceedings and regulatory investigations, and frequently advises European companies registered in the United Kingdom and/or the United States on complex multi-jurisdictional regulatory enforcement issues.
She is a member of the LCIA, CIArb, the Financial Sector Arbitration Group and the editorial board of Commercial Dispute Resolution. She writes and lectures on a wide variety of arbitration issues and is the international arbitration specialist for the Diplomatic Book and Website for foreign Embassies and High Commissions.
Penny Madden is an English qualified Queen’s Counsel and partner in the London office of Gibson, Dunn & Crutcher. She …
Ana Reyes Co-Chairs the firm’s International Disputes practice group and focuses her practice on complex litigation and international arbitration. She has handled matters involving foreign governments, foreign officials, multi-national corporations, and international organizations, representing clients throughout the world. Along with her admissions to Bars of the United States, Ana is listed on the Roll of Solicitors in England and Wales. And she is a Clinical Visiting Lecturer at Yale Law School, where she co-teaches Advocacy in International Arbitration.
In 2017, Ana was named as the D.C. Women’s Bar Association’s Woman Lawyer of the Year in recognition of her international litigation practice and for her efforts in representing the rights of those seeking asylum in the United States. She has also been named by Benchmark Litigation as a "Local Litigation Star" in International Arbitration (2019-2020), and she has been named by The National Law Journal in its Winning Litigators list, which recognizes trial attorneys who, “scored great results for clients in high-stakes matters” (2018).
Ana was born in Montevideo, Uruguay, and grew up in Louisville, Kentucky. She received her B.A., summa cum laude, from Transylvania University in 1996. She received her J.D., magna cum laude, from Harvard Law School in 2000, where she was an editor of the Harvard Law Review. In 2014, Ana also received a Master’s in International Public Policy, with distinction, from the Johns Hopkins University, School of Advanced International Studies.
Ana Reyes Co-Chairs the firm’s International Disputes practice group and focuses her practice on complex litigation and international arbitration. She …
Michael is a Senior Litigation Advisor & Of Counsel with more than 20 years practice in investment and commercial arbitration.
Michael McNutt has been assisting in settlement of investment disputes and complex arbitrations for over 20 years in the World Bank (ICSID), ICC, UNCITRAL and as well as in domestic proceedings in UK High Court, French, United States, and New Zealand courts.
Michael has significant experience in relevant offshore jurisdictions, including most UK offshore centers (IOM, Jersey, BVI, Cayman Islands, etc.), Caribbean jurisdictions, Malta, Cyprus and the United Arab Emirates during the same period. Relevant investor State cases in which Michael was lead strategist together with lead counsel include Noble Ventures v Romania, EDF v Romania, Emmis Radio v Hungary, Novera v Bulgaria, Mezzanine & Danubius v Hungary and a pending Strasbourg case (and related investment treaty claim) against Hungary. Michael is also actively involved in commercial litigation and enforcement cases involving UAE, Senegal, United States, France, Italy, Ireland, Bulgaria and Isle of Man, Cayman Islands, Cyprus and others.
A former US and EU-based investment banker as well as a manager/director based in Europe with two of the ‘Big Four’ accountancy firms, Michael possesses extensive knowledge and experience in the formulation of investment strategies (including PPP or other State Aid schemes), post-acquisition restructuring and its implementation, as well as accountancy (IAS, US GAAP etc.) and valuations/damages assessment.
Michael’s investment and privatisation advisory experience involving both Investor – State contracting as well as commercial merger & acquisitions in transition and developing economies is relevant in particular for understanding the financial basis for the dispute and quantification of damages. Prior to the commencement of a dispute, Michael often works with the client to confirm an estimated quantum of damages that may be used as a benchmark for settlement discussions. In addition, and in the event settlement is not possible, Michael routinely assists testifying damages experts in the formulation of the damages model, collection and providing evidence to support the model collected from the client and ensuring that such evidence (including witness evidence) complements the evidence used to support the legal claim prepared by legal counsel.
Michael has been particularly effective in providing valuable insight for the construction of the settlement and litigation strategy to ensure that evidence and witness collection is relevant, time efficient and cost effective for clients. His experience and understanding how transition economies developed with foreign aid and attraction of investments combined with such dispute- sensitive witness mapping and evidence collection supports the legal strategy with the strong evidentiary tools and insight into the origin of the dispute and mitigating or complicating factors.
In certain instances, Michael has acted as interim manager of the domestic legal entity which may be required to litigate as claimant and to ensure that corporate managers can be redeployed by firms which aids in limiting the risk of intimidation or harassment of management that may occur during the dispute. As a result, Michael has also testified before courts and arbitration panels on various occasions in support of claims or in the defense against claims.
His negotiation skills are relevant and Michael has been particularly effective in settlement of disputes related to investments involving a partner from a more mature market dealing with either governments or firms locally executing a commercial arrangement in a dynamic local legal environment (i.e. Hungary, Romania, Mongolia, Brazil, Russia, etc.).
Michael is responsible for assisting clients in preparing case investment budgets, managing the execution of case investment model and where required to assist in the payment of all 3rd party experts, administration and other expenses. Working therefore systematically with the client, support for the claiming of litigation expenses and confirmation to the client for internal or audit purposes of dispute expenditure and forecasted expenditure is possible and can greatly reduce the time that client management
Michael is a Senior Litigation Advisor & Of Counsel with more than 20 years practice in investment and commercial arbitration. …
Justin is a dispute resolution attorney who represents domestic and international clients in arbitration and business litigation matters across a number of sectors, including banking, finance, technology, construction, oil and gas, mining, casino gaming, and factoring.
Justin began his legal career as an appellate attorney at the nationally acclaimed Public Defender Service for the District of Columbia where he managed all aspects of appellate litigation in Public Defender Service cases before the District of Columbia Court of Appeals. His next two roles were as a litigation associate at Hogan Lovells US LLP, where he managed complex disputes and investigations for Fortune 500 companies, and as a foreign associate in the international arbitration group at Philippi, Prietocarrizosa, Ferrero DU & Uría, where he managed domestic arbitrations and international arbitrations for clients with disputes in Chile. His most recent position was as an associate in the international arbitration group at White & Case LLP, where he was responsible for managing commercial and investor-state arbitrations, including ICC, ICSID, SIAC, AAA and JAMS.
Justin is licensed to practice law in England & Wales, New York, and Washington, D.C.
Justin is a dispute resolution attorney who represents domestic and international clients in arbitration and business litigation matters across a …
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Method of Presentation:
General knowledge of international arbitration laws
NY Category of CLE Credit:
Areas of Professional Practice
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About Gibson, Dunn & Crutcher LLP
Gibson Dunn is a full-service international law firm that advises on the most significant transactions and complex litigation around the world. Consistently achieving top rankings in industry surveys and major publications, Gibson Dunn is distinctively positioned in today’s global marketplace with more than 1,400 lawyers and 20 offices, including Beijing, Brussels, Century City, Dallas, Denver, Dubai, Frankfurt, Hong Kong, Houston, London, Los Angeles, Munich, New York, Orange County, Palo Alto, Paris, San Francisco, São Paulo, Singapore, and Washington, D.C.
About Williams & Connolly LLP
Williams & Connolly is recognized as one of the world’s premier litigation firms. Our lawyers successfully handle significant civil and criminal matters in courts across the country and forums around the world. We bring a unique blend of talent, tenacity and teamwork to every case we handle in the relentless pursuit of the best possible outcomes for our clients.
About Lazareff Le Bars
Lazareff Le Bars is a boutique firm specialized in international dispute resolution.
Our teams are involved in institutional and ad hoc arbitration, spanning from traditional and complex legal proceedings, institutional mediation and conciliation, to alternative dispute resolution (dispute board, expert opinions, etc.).
To this day, our professionals have been involved in over 250 ad hoc and institutional arbitration proceedings (including ICC, LCIA, ICSID, CCJA, UNCITRAL, ICDR/AAA, CEPANI, SIAC, HKIAC, DIAC, MIAC).
Our lawyers have a thorough understanding of ADR (alternative dispute resolution) and have successfully led several mediations and conciliations, including disputes involving governments and state entities.
Our lawyers draw on their in-depth experience to allow each client to settle their dispute amicably and encourage parties, when appropriate, to maintain their business relationships.
About Wuersch & Gering LLP
Wuersch & Gering LLP (or the “Firm”) is an international boutique dedicated to providing legal services to domestic and international clients who seek practical solutions for their legal challenges in the United States. The Firm’s clients enjoy the personal attention of our experienced attorneys. By focusing on core competencies, Wuersch & Gering is able to advise clients with a sophistication usually only found at much larger firms. Yet, thanks to the Firm’s lean organization our efficiency is unmatched by our larger competitors. Wuersch & Gering has a deep understanding of the differences between U.S. and foreign business practices and legal concepts, making the Firm uniquely qualified to build a bridge between different cultures. Many Wuersch & Gering attorneys are fluent in foreign languages, including German, French, Italian, Russian, and Spanish. This enables us to communicate effectively with our foreign clients and their advisors.