Cert. Watch: Servotronics v. Rolls-Royce

Readers, I am keeping my eye on the cert. petition in Servotronics, Inc. v. Rolls-Royce plc, a case I’ve written about before, which raises the question whether § 1782 reaches private international arbitrations, or more specifically, whether such arbitrations are proceedings in a foreign or International tribunal, as the statute requires. The petition was filed in December. I’ve said before that given the existing circuit split, a well-drafted petition could be compelling. But I also have expressed some doubt about whether the parties could get the case teed up for the Supreme Court in time to avoid mootness, since under ordinary rules the arbitration still has to be pending for the Court to have jurisdiction to hear the case. (more…)

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Case of the Day: In re Newbrook Shipping

The case of the day is In re Newbrook Shipping Corp. (D. Md. 2020). Nardella Corp., a Nevis company, obtained an order from a South African court to arrest the M/V Falcon Traveller to provide security for a claim in an arbitration in Singapore regarding the arrest of another vessel, the M/V Falcon Carrier.. Newbrook challenged the arrest, and the South African court set it aside on the grounds that the Falcon Traveller was not associated with the Falcon Carrier, even though Nadella had acted in good faith. Later, Newbrook obtained a similar order in South Africa to arrest the M/V Falcon Confidence, and Falcon Confidence Shipping sought to set the arrest aside. The court denied that motion.

Newbrook and Falcon Confidence Shipping then brought a § 1782 application to seek evidence GMS, a Maryland company alleged to be Nadella’s registered agent, and Anil F. Sharma, alleged to own Nadella. They wanted to get evidence about Nadella’s claims in South Africa that the Falcon Traveller and the Falcon Confidence and about Nadella’s corporate structure.

The court granted the ex parte application. GMS then moved to strike service, quash the subpoenas, and dismiss the action. (more…)

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Case of the Day: Banca Pueyo v. Lone Star Fund IX

The case of the day is Banca Pueyo S.A. V. Lone Star Fund IX (US), LP (5th Cir. 2020). The case addresses an important point about § 1782 procedure, namely, when a decision is sufficiently final to permit an appeal. I preface the discussion by saying that if you find yourself in a § 1782 appeal, you’re probably not where you want to be. If you’re the applicant appealing, the time available in the foreign proceeding for offering evidence may be short enough that an appeal can’t give you effective relief. If you’re the respondent appealing, you probably need to make a pretty good showing in order to get a discovery order stayed pending appeal. As in any other litigation, the time and expense are good reasons to work out as much as you can with your adversary. (more…)

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Case of the Day: Servotronics v. Rolls-Royce

The case of the day is Servotronics, Inc. v. Rolls-Royce PLC (7th Cir. 2020). I wrote about a related Fourth Circuit case earlier this year. The case deepens the circuit split on whether Section 1782 reaches private foreign arbitrations. The Fourth and Sixth Circuits have recently said “yes.” The Second and Fifth Circuits had said “no.” Now the Seventh Circuit has taken the Second Circuit view, setting up a very strong candidate for Supreme Court review (assuming the arbitration will still be pending a year from now). (more…)

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Case of the Day: In re Gorsoan Ltd.

The case of the day is In re Gorsoan Ltd. (SDNY 2020). Gorsoan, a Cyprus company, and Gazprombank, the Russian bank, sued dozens of defendants, including Janna Bullock, in Cyprus, alleging a $25 million fraud. The Cyprus court issued a worldwide asset freeze injunction and requiring the defendants, including Bullock, to disclose their assets. Bullock did not comply with the order. So in 2013, Gorsoan obtained an order under § 1782 for issuance of a subpoena to Bullock. Although the court granted the application and the Second Circuit affirmed, “Bullock did not produce much, if any, discovery.” The judge, on Gorsoan’s motion, ordered a second deposition under judicial supervision, but at that deposition, Bullock invoked her right against self-incrimination and refused to testify.

In 2018, Gorsoan brought a second § 1782 application seeking leave to serve subpoenas on Zoe Bullock Remmel and Eugenia Bullock, Janna Bullock’s daughters, Zoya Kuznetsova, her mother, and Stuart Sundlun. The court granted the application, and Gorsoan moved to compel. Janna Bullock then moved to intervene, and after leave was granted, she moved to vacate order allowing the discovery and to quash the subpoenas. In January 2020, the court granted the motion to compel and denied the motion to vacate and to quash. 435 F. Supp. 3d 589. (more…)

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Case of the Day: In re Hanwei Guo

Longtime readers know that one of the big open questions in Section 1782 practice is whether the statute reaches private international arbitrations. Is an arbitration of a typical business dispute a proceeding before a “foreign or international tribunal,” such that an interested person can seek discovery in the United States? The circuits are split, with the pre-Intel decisions (from the Second and Fifth Circuits) holding that the statute does not reach private arbitration, and the post-Intel decisions (from the Fourth and Sixth Circuits) holding that it does. In today’s case, In re Hanwei Guo (2d Cir. 2020), the Second Circuit adhered to its own precedent, setting the stage for a pretty compelling cert. petition in the coming year. (more…)

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1782 to Watch: In re Republic of the Gambia

You may be interested in a § 1782 application just filed in Washington by the Republic of the Gambia, which is prosecuting a case against Myanmar in the International Court of Justice concerning the situation of the Rohingya people. This brings to mind my last visit to the Hague in December, when I arrived early in the morning at the Peace Palace for a talk I was giving at a Hague Conference event. There were large crowds chanting slogans and waiving flags outside the Peace Palace grounds. Surely they weren’t there out of an interest in the Service Convention? It turned out they were Burmese people there to support their President, Aung San Suu Kyi, who was there to present Myanmar’s case before the ICJ. The photograph that goes with this post is my photo of the demonstrators as I was entering the Peace Palace. (more…)

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