Discovery From Non-Parties (Third-Party Discovery) in International Arbitration

International arbitration rules and many arbitration laws usually provide procedures that permit tribunals to order parties to disclose documents and other materials to the other parties.1 More complex are the rules that determine opportunities to obtain discovery from persons that are not party to the arbitration (third-party discovery). This article will review third-party discovery under the Federal Arbitration Act (FAA) and the provisions of the US Code s.1782 that authorise US courts to act in aid of actions before foreign tribunals. Section 1782 has unique interest at this time because it figured prominently in the EU antitrust investigation of Intel that was initiated on request from Advanced Micro Devices (AMD). Early in that investigation, AMD filed a s.1782 request in the US District Court to obtain evidence from US sources for submission to the DG-Competition of the European Commission (EC). This request ultimately led to the Supreme Court’s decision in Intel Corp v Advanced Micro Devices Inc2 which appeared to significantly expand the scope of s.1782. Ironically, after AMD won on key legal issues in the Supreme Court, the District Court on remand exercised its discretion and denied the request for judicial assistance. This paper first describes the FAA non-party discovery rules and the split among the federal appellate courts concerning the authority of arbitrators to order prehearing discovery from non-parties. Next, it provides an analysis of the meaning of the terms “interested party” and “tribunal”—terms that were controversially interpreted by the Supreme Court in Intel and are essential to the application of s.1782. Finally, it discusses the “discretionary” factors used by the federal courts in deciding whether to grant a s.1782 request even when the statutory criteria are met. The opportunity to exercise this discretion seems to rebut the argument that the Supreme Court’s interpretation of s.1782 gives participants before foreign tribunals more discovery rights in the United States than are available to the parties in arbitrations covered by the FAA

Discovery From Non-Parties (Third-Party Discovery) in International Arbitration

International arbitration rules and many arbitration laws usually provide procedures that permit tribunals to order parties to disclose documents and other materials to the other parties.1 More complex are the rules that determine opportunities to obtain discovery from persons that are not party to the arbitration (third-party discovery). This article will review third-party discovery under the Federal Arbitration Act (FAA) and the provisions of the US Code s.1782 that authorise US courts to act in aid of actions before foreign tribunals. Section 1782 has unique interest at this time because it figured prominently in the EU antitrust investigation of Intel that was initiated on request from Advanced Micro Devices (AMD). Early in that investigation, AMD filed a s.1782 request in the US District Court to obtain evidence from US sources for submission to the DG-Competition of the European Commission (EC). This request ultimately led to the Supreme Court’s decision in Intel Corp v Advanced Micro Devices Inc2 which appeared to significantly expand the scope of s.1782. Ironically, after AMD won on key legal issues in the Supreme Court, the District Court on remand exercised its discretion and denied the request for judicial assistance. This paper first describes the FAA non-party discovery rules and the split among the federal appellate courts concerning the authority of arbitrators to order prehearing discovery from non-parties. Next, it provides an analysis of the meaning of the terms “interested party” and “tribunal”—terms that were controversially interpreted by the Supreme Court in Intel and are essential to the application of s.1782. Finally, it discusses the “discretionary” factors used by the federal courts in deciding whether to grant a s.1782 request even when the statutory criteria are met. The opportunity to exercise this discretion seems to rebut the argument that the Supreme Court’s interpretation of s.1782 gives participants before foreign tribunals more discovery rights in the United States than are available to the parties in arbitrations covered by the FAA

Accelerating the assessment agenda: thinking outside the black box

Over the last 10 years, learning and teaching in higher education have benefited from advances in social constructivist and situated learning research (Laurillard, 1993). In contrast, assessment has remained largely transmission orientated in both conception and in practice (see Knight & Yorke, 2003). This paper examines a number of recent developments, which exhibit innovation in electronic assessment developed at the UK's Open University. This paper argues for the development of new forms of e-assessment where the main driver is that of sound pedagogy rather than state of the art technological know-how and where open source products can move the field forward

Strategies for Successfully Marketing and Stabilizing the Occupancy of Mixed-Income/Mixed-Race Properties: A Case Study of Cedar Road Apartments in Vista, California

Cedar Road is a 40-unit mixed income, mixed-race property in Vista, California. Vista is a fast growing city 35 miles north of San Diego. Its population grew 29 percent between 1990 and 2003 and almost all of that growth has been in the Hispanic population that now represents 41 percent of the city's population.Cedar Road is divided between very-low (30 percent) and low-income (70 percent) households. Most of the very low-income households are part of a transitional housing program for homeless families that uses 10 of the 40 units.Cedar Road was completed in 1996 as the first phase of a two-phase project. The second phase, Nettleton Road, contains 28 units and was completed in 1999. Although this study is about Cedar Road, the two phases are operated as one property and together encircle a central courtyard. The properties are located in a modest residential neighborhood of small single-family homes and conventional apartment complexes that are in fair condition. It is directly across from one of the best elementary schools in the City and is close to a busy thoroughfare of strip malls. It is the most attractive complex in the area

False Promises: Migrant Workers in the Global Garment Industry

This document is part of a digital collection provided by the Martin P. Catherwood Library, ILR School, Cornell University, pertaining to the effects of globalization on the workplace worldwide. Special emphasis is placed on labor rights, working conditions, labor market changes, and union organizing.CCC_2012_False_Promises_Global.pdf: 1782 downloads, before Oct. 1, 2020

The Death Knell and the Wild West: Two Dangers of Domestic Discovery in Foreign Adjudications

Under 28 U.S.C. § 1782(a), parties to foreign legal proceedings can obtain discovery orders from United States federal courts. In other words, if a foreign party needs physical evidence located in—or testimony from a person residing in—the United States to support their claim or defense, they can ask a district court to order the production of that evidence. For almost two decades, § 1782(a) practice has operated as a procedural Wild West. Judges routinely consider § 1782(a) applications ex parte—that is, without giving the parties subject to the resulting discovery orders a chance to oppose them—and grant those applications at a staggering rate: more than 90% of the time. In its June 2022 decision in ZF Automotive US, Inc. v. Luxshare, Ltd., the Supreme Court transformed § 1782 jurisprudence for the worse. The Court held that private arbitral tribunals do not fall under § 1782(a)’s scope and that, as a result, parties cannot obtain discovery for use in foreign private arbitration under the provision. This Note argues that, after ZF Automotive, § 1782(a) jurisprudence contains two dangers: (1) it subjects some parties to burdensome discovery orders with few procedural safeguards, and (2) it prevents parties who have chosen to arbitrate rather than litigate from obtaining discovery entirely. This Note contributes to existing scholarship by proposing structural changes that would improve § 1782(a) practice. Specifically, it argues that courts cannot root out the procedural flaws that plague § 1782(a), and that, consequently, Congress should enact a new and improved § 1782 to address these manifold problems

Dynamics of filament formation in a Kerr medium

We have studied the large-scale beam breakup and filamentation of femtosecond pulses in a Kerr medium. We have experimentally monitored the formation of stable light filaments, conical emission, and interactions between filaments. Three major stages lead to the formation of stable light filaments: First the beam breaks up into a pattern of connected lines (constellation), then filaments form on the constellations, and finally the filaments release a fraction of their energy through conical emission. We observed a phase transition to a faster filamentation rate at the onset of conical emission. We attribute this to the interaction of conical emissions with the constellation which creates additional filaments. Numerical simulations show good agreement with the experimental results