Judicially-Aided Discovery, Provisional Relief In International Arbitration: UK & US

In A and B v. C, D and E [2020] EWCA Civ 409 the English Court of Appeal resolved the long-standing controversy in the UK whether the English court can make orders under the Arbitration Act 1996 for the taking of evidence from a non-party to arbitration proceedings, in support of private commercial arbitrations outside the UK. The court ordered deposition evidence from a UK resident in aid of a New York arbitration, and opened the door to obtaining other forms of interim relief against third parties under  the 1996 Act, such as evidence preservation orders and interim injunctions, including English-style worldwide freezing orders (with asset disclosure directions) against non-party asset holders, even where the assets are located outside the UK. Meanwhile, in the US, the courts of appeals are split on whether 28 U.S.C. sec. 1782 authorizes the court to order discovery in aid of a private commercial arbitration pending outside the US. The US Supreme Court has been asked to hear the issue. The panel will discuss these current developments, comparing the UK and US approaches to judicially-authorized discovery and provisional relief in aid of arbitration abroad.