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International Litigation & Arbitration: December 2017 Archives

Obtaining Discovery in the U.S. for Use in Foreign Tribunals

Foreign litigants recently successfully sought the assistance of the United States District Court for the District of Massachusetts in obtaining discovery of Massachusetts residents and a Massachusetts company for use in a foreign proceeding.  See In re Penner, No. 17-CV-12136-IT, 2017 WL 5632658 (D. Mass. Nov. 22, 2017).  The foreign litigants in that case relied on a Federal Statute, 28 U.S.C. ยง 1782, that permits U.S. District Courts to order discovery for use in foreign proceedings under certain circumstances.  Section 1782 provides, in pertinent part, "[t]he district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal."  In granting discovery pursuant to Section 1782, the Penner court relied upon the United States Supreme Court's analysis of that statute in Intel Corp. v. Advanced Micro Devices, Inc. 

International Arbitration War Wages Over Pineapples

The Court of Appeals for the Eleventh Circuit will be the next body to weigh in on a dispute between Del Monte International GmbH ("Del Monte") and Inversions y Procesadora Tropical INPROTSA, S.A. ("INPROTSA") over an exclusive sales agreement for pineapples. The case has been appealed to the Eleventh Circuit, and the appeal raises issues of the finality of international arbitration awards.

Massachusetts Superior Court Decides That Right to Arbitration was Waived Due to Litigation Conduct

In a recent Superior Court decision, a judge held that there is a presumption that courts, not arbitral tribunals, have exclusive jurisdiction over the issue of whether a party has waived a contractual right to arbitration by engaging in substantial litigation before a motion to compel arbitration was filed.

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