Court Assistance in Taking Evidence

Article 27
Court Assistance in Taking Evidence

shahla ali and odysseas g. repousis
The arbitral tribunal or a party with the approval of the arbitral tribunal may
request from a competent court of this State assistance in taking evidence.
The court may execute the request within its competence and according to its
rules on taking evidence.
1. Background and Travaux Préparatoires

Article 27 concerns the assistance of courts in evidentiary matters.
Obtaining the support of national courts in the taking of evidence can
be important, although this cooperation must certainly not curtail the
efficiency of arbitration.1
The jurisdiction of the arbitral tribunal originates in the arbitral
agreement between the parties. As a result, arbitral tribunals often lack
the power to compel discovery through calling or compelling attendance
of witnesses, requiring the production of documents, or ordering inspec-
tion of goods or premises. Some national laws expressly allow the arbitral
tribunal to seek court assistance in the taking of evidence.2 Consistently
with this approach, article 27 of the Model Law allows courts to render
assistance in these cases. In this regard, similar to a number of Model Law
provisions, article 27 deals with the interaction between arbitration and
court procedures, and the intervention of the courts in the arbitral
process.3
At the initial drafting stage, it was generally agreed that court assis-
tance in enforcing procedural decisions of the arbitral tribunal would be
beneficial to the proper and efficient functioning of international
1
CLOUT Case 68, Delphi Petroleum Inc. v. Derin Shipping and Training Ltd, unrep.
2
UNCITRAL, Note by the Secretariat: Possible Further Features and Draft Articles of a
Model Law, UN Doc. A/CN.9/WG.II/WP.41 (12 January 1983), para. 27.
3
UNCITRAL, Report of the Working Group on International Contract Practices on the
Work of Its Third Session, UN Doc. A/CN.9/216 (23 March 1982), para. 61.
718
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1 . b a c k g r o u n d a n d t ra v a u x p r épa ra toir es 719
commercial arbitration.4 However, there were divergent views as to

whether the Model Law should deal with this issue at all.5 While it was
pointed out that it was possible to include such a provision in a general
form, or in a detailed manner,6 there were also arguments against such a
provision arising out of concern for the difficulties of integrating the
arbitral process with existing court procedures, cross-border court assis-
tance and the possibilities of abuse. The fact that the procedures of court
assistance formed an integral part of the procedural law of the adopting
jurisdictions had to be taken seriously into account.7 Moreover, it was
thought that the Model Law might not be able to provide such assistance
when the arbitral tribunal sought court assistance in a country other than
the one in which the arbitration took place.8 In such circumstances, court
assistance by foreign courts would normally be governed by international
instruments, such as bilateral and multilateral treaties on recognition of
foreign judgments, and not merely be based upon the application of the
Model Law.9 It was suggested that court assistance should not be made
automatic as it might create the possibility of abuse and, as a result,
require a certain degree of supervision.10 For these reasons, it was
suggested that the issue of court assistance in enforcing procedural
decisions should not be dealt with in the Model Law.
The Working Group suggested several ways to overcome the aforemen-
tioned difficulties.11 To minimise the impact on existing national rules and
procedure, it was proposed that the Model Law should only contain basic
provisions in relation to the request for court assistance, the method of
taking evidence and the conditions for refusing the requested assistance.12
It was also suggested that relevant domestic rules of procedure would apply
when the arbitral tribunal sought court assistance in taking evidence.13 A
simpler formulation was favoured in subsequent drafts.14
4
Ibid.
5
Ibid.
6
Ibid.
7
Ibid., para. 61(a).
8
Ibid., para. 61(b).
9
Ibid.
10
Ibid., para. 61(c).
11
UN Doc. A/CN.9/WG.II/WP.41 (n. 2), para. 28.
12
Ibid.
13
Ibid.
14
UNCITRAL, Working Papers Submitted to the Working Group at Its Seventh Session,
Composite Draft Text of a Model Law on International Commercial Arbitration, UN
Doc. A/CN.9/WG.II/WP.48 (6–17 February 1984), art. 27, fourth draft.
720 a r t i c l e 27 : c o u r t as s i s t a n c e i n t a k i n g e v i d e n c e
As regards the second difficulty, where court assistance is required in a

country other than the State where the arbitration is seated, it was
suggested that the Model Law might require that a court treat such
requests in the same way as a similar request from foreign courts.15 As
such, a State would be obliged to execute such requests if relevant cross-
border enforcement instruments were binding.16 In this regard, no
detailed procedural rules were necessary because the existing rules for
assistance to foreign courts could be applied.17
One concern that was raised was the possibility of courts becoming too
interventionist in taking evidence going against the private nature of
arbitration, and creating the possibility of undesirable court intrusion in
arbitral proceedings.18 However, it was generally agreed that the provision
of court assistance would facilitate international commercial arbitration
and therefore it was important that it be regulated in the Model Law.19
A more ambitious formulation suggested that the Model Law provide
for an obligation that the enacting State should, regardless of the degree
of assistance provided to foreign courts, execute requests from foreign
arbitral tribunals.20 Enacting States would not accept this proposal read-
ily because they might not be prepared to provide assistance to courts of
all other States.21 It was pointed out that States might be less reluctant if
the obligation were subject to reciprocity, but it was noted that this would
likely lead to substantial difficulties in practice.22 The Working Group
recognised that international court assistance ‘could not be established
unilaterally through a model law since the principle of reciprocity and
bilaterally or multilaterally accepted procedural rules were essential con-
ditions for the functioning of such a system’.23
Rather than a detailed provision outlining all situations under which a
request for assistance might be refused,24 the final draft included
15
16
Ibid.
17
Ibid.
18
Work of Its Fifth Session, UN Doc. A/CN.9/233 (28 March 1983), para. 32.
19
Ibid.
20
21
Ibid.
22
Ibid.
23
Work of Its Sixth Session, UN Doc. A/CN.9/245 (29 August–9 September 1983), para. 43.
24
H. Holtzmann and J. Neuhaus, A Guide to the UNCITRAL Model Law on International
Commercial Arbitration: Legislative History and Commentary (Kluwer, 1989), p. 735.
1 . b a c k g r o u n d a n d t ra v a u x p répa ra toir es 721
permissive language encouraging support for such requests ‘according to

[a country’s] rules on taking evidence’.
To discourage abusive or dilatory tactics on the part of parties to
arbitration, the Secretariat proposed that only the arbitral tribunal be
allowed to request court assistance.25 It was also proposed that the court
should be allowed to refuse to give such assistance.26 The final wording
was considered to be a compromise allowing both the arbitral tribunal
and parties to make a request, where parties must obtain prior approval
from the arbitral tribunal before making such a request to the courts.27
Article 27 does not attempt to interfere with, or override, domestic
civil procedure rules in taking or obtaining evidence.28 Domestic proce-
dural rules hence also play an important role in determining whether
judicial assistance will be granted for the purposes of taking evidence in
arbitral proceedings.29
It should be noted that before the Commission considered article 27,
the Hague Conference on Private International Law examined whether
the scope of the Convention on the Taking of Evidence Abroad in Civil or
Commercial Matters should be extended to arbitral proceedings.30 A
special commission confirmed the feasibility of such an extension, but
doubted its utility.31
Article 27 was not amended in 2006, and thus case law and other
interpretative material on article 27 remains relevant.
In terms of its territorial scope, the original drafters in 1985 used the
language ‘in arbitral proceedings held in this state or under this Law’,
suggesting an extended territorial scope of application, but later a balance
was struck such that article 27 remains local in its application. In view of
the strengthened international dimension of enforcement of interim
measures under the 2006 amendments to the Model Law, it remains to
be seen whether or not the approach to article 27 in 1985 needs to be
revisited – particularly in light of the potential overlap between article 27
and interim measures concerning evidence preservation.32
25
26
Ibid., para. 33.
27
Work of Its Seventh Session, UN Doc. A/CN.9/246 (6 March 1984), para. 98.
28
Ibid., para. 94.
29
Holtzmann and Neuhaus (n. 24), p. 737.
30
UN Doc. A/CN.9/SR.325, para. 57.
31
Ibid.
32
See e.g. art. 17(2)(d).
722 a r t i c le 27 : co ur t as s i s t a n c e in t a k i n g ev i d en c e
Article 27 encourages parties to provide evidence as required. While

originally it was suggested that article 27 explicitly stipulate that if any
party refuses to comply with an evidentiary order, such non-cooperation
be interpreted in favour of the other party,33 such an explicit inference
was not included in the final text.
Moreover, in the face of non-cooperation, although the arbitral tribu-
nal is empowered to continue the proceedings as stated by the provision,
it also contains an implication that the tribunal is equally empowered not
to continue, or discontinue the proceedings, until evidence is provided,
or the party appears.34 This aspect of article 27 may be drawn from article
25(c), which states that:
… if, without showing sufficient cause … any party fails to appear at a
hearing or to produce documentary evidence, the arbitral tribunal may
continue the proceedings and make the award on the evidence before it.
2. Request for Assistance from Court – Approval

of the Tribunal
In order for a request for judicial assistance in taking evidence to be valid,
the application must be made by the arbitral tribunal per se or by a party
with the approval of the arbitral tribunal, as article 27 explicitly provides.
Where a party does not have such approval, it may be an abuse of the
court’s power to provide such judicial assistance.
Such an abuse is illustrated by a 2007 case in which the High Court of
Delhi, India, prevented a party from seeking judicial assistance without
the approval of the arbitral tribunal. The petitioner in the case filed an
application for summoning two witnesses, one of which had already been
dismissed by the arbitrator as the application was found to be without
merit. The petitioner then filed under section 27 of the Arbitration &
Conciliation Act 1996 for the same witness to be summoned. The court
dismissed the application, holding that ‘the petitioner had not obtained
the approval of the arbitral tribunal before moving the court seeking its
assistance for taking evidence’.35
33
UNCITRAL, Analytical Compilation of Comments by Governments and International
Organizations on the Draft Text of a Model Law on International Commercial
Arbitration, UN Doc. A/CN.9/263 (19 March 1985), art. 23, para. 6.
34
Ibid., para. 3.
35
SH Satinder Narayan Singh v. Indian Labour Cooperative Society Ltd and Others, 2008 (1)
ARBLR 355 Delhi.
3 . ex er cis e of t he c ourt ’s di s c r e t i o n 723
One issue this case raises is whether or not the power of the arbitral
tribunal to approve such requests may be sufficiently scrutinised by the
courts. Given the critical nature evidence plays in the resolution of
disputes, this is a significant matter. However, it must be borne in mind
that arbitral tribunals are bound by article 18 to ensure the parties are
given equal treatment in the presentation of their cases. Although under
article 27 parties cannot bypass the arbitral tribunal and seek evidential
assistance from the courts directly, parties may still apply to set aside an
arbitral award within three months by virtue of article 34 if there is any
procedural unfairness or if there are other reasonable grounds to object.
Similarly, in a Singaporean case,36 a party to arbitral proceedings applied
for a subpoena before the arbitral tribunal, but was refused. Later the party
made the same application to the Singapore High Court. The High Court
refused the application and confirmed that the arbitral tribunal was well
within its discretion to determine the relevance and materiality of the
witness being subpoenaed. The High Court treated the application as an
abuse of process, as it appeared to be an attempt to circumvent the arbitral
tribunal. It was recognised by the High Court that the arbitral tribunal
possesses the power to determine procedural and substantive issues, accord-
ing to article 19, including the admissibility, relevance, materiality and
weight of any evidence, and that the courts would not intervene in a matter
merely because they might have resolved the issue in question differently.37
3. Exercise of the Court’s Discretion and Scope of Assistance

After a party obtains approval from an arbitral tribunal to seek judicial
assistance in respect of an evidentiary matter, the party then pursues the
appropriate court procedure (whether by application or otherwise) to
seek the court’s assistance.
Article 27 states that parties may seek judicial assistance from the
competent court with the approval of the arbitral tribunal. As article 27
does not impose any requirement on the courts to grant such assistance,
the court is not obliged to assist. Rather, the granting of assistance is an
independent exercise by which the court examines the reasonableness of
the request in accordance with the laws of the relevant jurisdiction and
the practices of the court.38 Generally speaking, a court should grant
36
ALC v. ALF [2010] SGHC 231.
37
Soh Beng Tee & Co. Pte Ltd v. Fairmount Development Pte Ltd [2007] 3 SGCA 28.
38
Jardine Lloyd Thompson Canada Inc. v. SJO Catlin [2006] ABCA 18 (CanLII).
724 article 27: court assi stance in taking evi dence
evidentiary orders by considering various factors, including policy rea-

sons for supporting the arbitration process, and the preservation of party
autonomy to ensure procedural fairness.39
3.1 Specificity
As illustrated by English case law, the specificity of documents requested
by a party will be one of the factors considered by a court in determining
whether to provide assistance on evidentiary matters.40 In an English
case, the seller of a business was engaged in arbitral proceedings over false
and fraudulent misrepresentations overstating the value of his business,
and sought to obtain a witness statement from a third-party auditor. The
High Court dismissed the application because it was too widely framed –
the party needed to ask for specified documents instead of a wide
category of documents,41 reflecting the general principles of discovery
in the United Kingdom.
3.2 Timeliness
Apart from specificity, the Federal Court of Canada, among others, also
considered the timeliness and relevance of evidence sought by a party
pertinent in granting evidential assistance. The plaintiff was dissatisfied
with the amount of the demurrage costs set out by the arbitral tribunal and
applied for an interim order to secure the evidence of a witness. The court
held that the amount of demurrage had been set out by the arbitral tribunal
already. It was thus too late for the plaintiff to seek judicial assistance in
respect of evidence at such a late stage. Furthermore, the information that
was to be provided by the witness was not demonstrably relevant to the
other issues raised by the plaintiff in the application. The court dismissed
the application because the plaintiff had not sought evidence from wit-
nesses that ‘may have information on an issue in the action’.42
4. Pre- and At-Trial Evidence

According to the wording of article 27, court assistance must be con-
cerned with the ‘taking of evidence’. One critical issue is whether filing
39
ALC v. ALF (n. 36).
40
BNP Paribas and Others v. Deloitte & Touche LLP [2003] EWHC 2874.
41
Ibid.
42
CLOUT Case 68 (n. 1).
4 . p re - an d at - tr ial e vide n ce 725
the request to the court for an evidentiary order against a person for
documents and other testimony during the pre-trial phase falls within the
scope of article 27. In other words, whether discovery or disclosure of
materials, which may not be used as evidence at trial, constitute evidence
for the purposes of article 27. This distinction is often also referred to as
‘pre-trial’ and ‘at-trial’ evidence.
In 2003, the Commercial Court in England confirmed, under similar
statutory provisions, that article 27 dealt with ‘the taking of evidence’, but
stated that ‘there was nothing in the Model Law which suggests that the
court should assist with the process of disclosure’.43 The court distin-
guished the ‘taking of evidence’ from the ‘process of disclosure’ as two
distinct concepts, whereby seeking evidentiary orders during the pre-trial
phase was treated as a form of disclosure, and hence did not fall within
the ambit of article 27.
Conversely, the Alberta Court of Appeal in Canada interpreted the
meaning of ‘evidence’ in a different way. ‘Evidence’ was interpreted as
relevant material gathered by way of discovery, both at trial and pre-trial
discovery applications. It pointed out that in light of its objects and
purposes, article 27 was meant to assist the tribunal in its search for the
truth, and no distinction should be made between ‘pre-trial’ and ‘at the
trial’.44 If the court is entitled to have pre-trial discovery per se, there is no
reason why the arbitral tribunal would have any less of a desire or need
for the truth to reach a fair and proper result than a court of law. More
importantly, if the draftsmen of article 27 wished to distinguish between
the two, the provision would have included the wording ‘at the hearing’
with a view to confining its applicability. The final draft did not contain
such wording or limitations. As the Alberta Court noted, article 27
‘speaks of assistance in taking evidence’ and it would be improper ‘to
add, by implication or otherwise, the words “at the hearing”’ and ‘[i]f the
drafters of Article 27 had intended that assistance would only be given for
taking evidence at the hearing, they could have expressly said so’.45
In Hong Kong, the High Court did not seek to define evidence as pre-
trial or at-trial, and preferred a different approach. In the relevant case,
the plaintiff appealed against an order setting aside its subpoena for the
production of certain documents before the arbitral tribunal. The court
dismissed the application on the ground that it contravened the local
43
BNP Paribas (n. 40), para. 13.
44
Jardine Lloyd Thompson (n. 38).
45
Ibid.
726 ar tic l e 27: cour t assis ta n ce in taking evi d enc e
system of civil procedure, and the application was made far too early.46 In
other words, the court did not dismiss the application directly because
pre-trial discovery was not allowed, but on the basis of its local con-
straints and its determination that the pre-trial period should not be
extended so far ahead of the hearing. It follows that a court may choose to
avoid such issues by granting exceptions, and by treating ‘pre-trial’ and
‘at-trial’ evidence in a uniform manner. The validity of applications may
thus turn to factors of substance rather than the nature of ‘pre-trial’ or ‘at-
trial’ evidence.
5. Witnesses
Article 27 may also be employed in order to compel the attendance of
witnesses.47 In those cases, the procedural requirements of the law of the
seat should be taken into account. For example, if the law of the seat does
not allow arbitral tribunals to administer oaths to witnesses and experts,
tribunals should refer the discharge of those acts to the competent
national court.48
6. Abuses of Process
Further to the aforementioned considerations, a court may also refuse an
application for evidentiary assistance in order to prevent possible dilatory
tactics.49 For instance, in the Delphi case, the court determined that the
plaintiff may have been abusing the evidence-taking procedure in order
to delay payment of the demurrage, and the courts should generally try to
avoid such gamesmanship.
It has been suggested that the courts need not examine an application
for evidential assistance that has been approved by an arbitral tribunal,
and merely act to assist the tribunal in carrying out an order that the
tribunal itself could not enforce.50 This may arguably be the case if ‘the
Court had before it a carefully reasoned decision of a tribunal composed
of experienced and knowledgeable counsel who have determined that
46
Vibroflotation AG v. Express Builders Co. Ltd [1994] HKCFI 205.
47
See generally I. Bantekas, An Introduction to International Arbitration (Cambridge
University Press, 2015), pp. 148–149.
48
See e.g. s. 26 of the Swedish Arbitration Act, which does not allow tribunals to administer
oaths and truth affirmations to witnesses and experts.
49
CLOUT Case 68 (n. 1).
50
Ibid.
8. assis tance fro m non-s tate c ourts? 727
such discovery evidence is necessary for purposes of the arbitration

proceedings and in accordance with discovery practice’ of the seat of
the arbitration.51
Ultimately, courts have discretion as to whether or not to accept an
application for judicial assistance. Such decisions should be based upon
established principles and reasonable grounds, such as specificity, rele-
vance and timeliness, as well as policy reasons relating to the support of
the arbitral process by courts informed by the principle that ‘limiting the
scope of examinations for discovery in arbitration proceedings cannot be
justified on the basis that arbitration is not a parallel to the court
system’.52
7. Types of Assistance
Article 27 of the Model Law does not provide a comprehensive list
detailing the types of assistance that may be obtained from a court. One
addition that may be made in adopting article 27 is the inclusion of such a
list.
8. Assistance from Non-State Courts?

Applications for judicial assistance become more complex where evi-
dence from outside the seat of the arbitral proceedings is sought. During
the drafting of article 27, such an international dimension was not
contemplated53 and was considered to be in contradiction with other
principles laid down in article 1(2), namely that: ‘the provision of this law,
except articles 8, 9, 17H, 17I, 17J, 35 and 36, apply only if the place of
arbitration is in the territory of this State’. It is interesting to note, for
example, that interim measures of protection granted under articles 9,
17H, 17I and 17J may have an international dimension under article 1(2),
whereas assistance in respect of taking evidence may not, particularly as
interim measures include the definition in article 17: ‘[orders to] [t]ake
action that would prevent, or refrain from taking action that is likely to
cause, current or imminent harm or prejudice to the arbitral process itself
… [or] preserve evidence that may be relevant and material to the
resolution of the dispute’.54 Given article 27’s minimalist approach,
51
Jardine Lloyd Thompson (n. 38).
52
Ibid.
53
UN Doc. A/CN.9/216 (n. 2), para. 61(b).
54
UNCITRAL Model Law on International Commercial Arbitration 2006, art. 17(2)(b), (d).
728 a r t i c le 27 : co ur t as s i s t a n c e in t a k i n g ev i d en c e
setting out only a broad principle that the arbitral tribunal (or the party
with the approval of the tribunal) can request court assistance and
domestic rules should apply, there is much room for adopting countries
to make alterations at the implementation stage. For example, the
Hungarian Arbitration Act allows only the arbitral tribunal to make
such a request and it also demonstrates how interim measures of protec-
tion granted under articles 9 and 27 can be incorporated into a single
provision.55
In the course of drafting article 27, the Commission held the view that
it was ‘excessive to oblige a state to grant the benefit of assistance in the
event of arbitral proceedings taking place outside its territory’.56 This
view was based on the notion that the Model Law informs domestic
legislation and therefore cross-border assistance should be regulated by
other international laws.57
In relation to the calling of witnesses, a party may obtain a writ of
subpoena ad testificandum or a writ of subpoena duces tecum to compel a
non-party to give evidence or produce documents to the arbitral tribunal,
but the court’s power is limited to persons within the territory of the
Islands of Bermuda. However, by virtue of section 35(5)(a), the courts of
Bermuda may issue a letter of request to a foreign court for the examina-
tion of a witness out of the jurisdiction.
Canada’s interpretation of article 27 has evolved from a strict reading
suggesting that article 27 did not grant power to the arbitral tribunal to
seek court assistance from another jurisdiction (i.e. outside of the State or
jurisdiction the arbitration was being held)58 to a more liberal approach59
suggesting that the matter of cross-border assistance should be decided
by the courts vested with such powers of compulsion and, if the applica-
tion is sound, such assistance should be provided.
In fact, the case law of Model Law jurisdictions exhibits a tendency to
construe article 27 more liberally, thus allowing requests from foreign
arbitral tribunals.60 It is nevertheless not certain how each particular
55
Act LXXI of 1994 on Arbitration, s. 37.
56
UN Doc. A/CN.9/263/Add.3 (n. 33), para. 32.
57
UNCITRAL, Analytical Commentary on the Draft Text of a Model Law on International
Commercial Arbitration, UN Doc. A/CN.9/264 (25 March 1985), art. 27, para. 4.
58
Re. Corporación Transnacional de Inversiones SA de CV and Others v. STET Intl SpA and
Others [1999] CanLII 14819 (ONSC).
59
R. v. Zingre [1981] 2 SCR 392; US District Court v. Royal American Shows [1982] 1 SCR
414; Republic of France v. De Havilland Aircraft of Canada Ltd and Byron-Exarcos (1991)
3 OR (3d) 705.
60
See UNCITRAL, ‘2012 Digest of Case Law’, p. 119.
8. assistance from non-state c ourts? 729
Model Law jurisdiction will approach this issue, considering that it

largely rests on the applicable rules of statutory interpretation.61
Looking at non-Model Law jurisdictions, it is relevant to note that the
Swiss Federal Private International Law Act (PILA) limits the scope of
requests for the taking of evidence to the court of the seat of the
arbitration.62
On the other hand, section 44(1) of the English Arbitration Act 1996
provides that the competent court has ‘for the purposes of and in relation
to arbitral proceedings’ the ‘same power’ of making evidentiary orders.
This provision should be read together with section 43 of the Arbitration
Act, which allows a ‘party to arbitral proceedings’ to ‘use the same court
procedures’ that ‘are available in relation to legal proceedings to secure
the attendance before the tribunal of a witness in order to give oral
testimony or to produce documents or other material evidence’.
It is interesting to note that both sections 43 and 44 may have extra-
territorial scope,63 although courts may refuse to exert this power where
inappropriate.64
It follows that unlike article 27 of the Model Law, section 44 of the
English Arbitration Act is in principle not territorially limited, but
English courts may refuse to exercise powers in support of arbitral
proceedings seated outside England and Wales, if this makes it ‘inap-
propriate to do so’. And vice versa, in English-seated arbitrations, section
44 allows urgent requests for the preservation of evidence even where the
evidence sought to be preserved is outside the seat of the arbitral pro-
ceedings ‘if for practical reasons the application can only sensibly be
made there, provided that the proceedings are not a disguised attempt to
outflank the arbitration agreement’.65
Documentary disclosure in the hands of third parties may also lead
to the involvement of foreign courts, and in particular may lead
61
Ibid.
62
See PILA, art. 184(2). H. Frey, X. Favre-Bulle and M. Aebi, ‘Arbitration Procedures and
Practice in Switzerland: Overview’ (2016), https://uk.practicallaw.thomsonreuters.com/5–
502-1047?transitionType=Default&contextData=(sc.Default)&firstPage=true&comp=pluk&
bhcp=1.
63
Arbitration Act, s. 2(3).
64
Ibid.
65
In re. Chevron Corp., No. M-19-111, 2010 US Dist. LEXIS 47034, at 15 (SDNY, 10 May
2010); U&M Mining Zambia Ltd v. Konkola Copper Mines Plc [2013] EWHC 260
(Comm.), para. 63. In that case, the English High Court held that it was not inappropriate
to seek interim relief in Zambia’s courts relating to matters at a Zambian mine in respect
of a London-seated arbitration.
730 ar tic l e 27: co ur t ass ista nce in t aking ev idenc e
foreign courts to receive evidentiary requests from foreign-seated

tribunals. Section 1782 USC amply demonstrates this. Section 1782
is a US federal statute that enables litigants in foreign proceedings to
seek discovery from third parties that are either based or do sub-
stantial business in the United States. It has lately become an impor-
tant tool that is increasingly used in arbitral proceedings seated
outside the United States. Typically, this involves ex parte applica-
tions to US federal district courts. An application made pursuant to
section 1782 must satisfy three requirements:
(1) the person from whom the discovery is sought resides or is found in
the district of the district court to which the application is made, (2) the
discovery is for use in a foreign proceeding before a foreign tribunal, and
(3) the application is made by a foreign or international tribunal or ‘any
interested person’.66
The jurisprudence on the applicability of section 1782 to foreign arbi-

tral proceedings is still evolving, but the Supreme Court’s decision in
Intel67 changed the federal courts’ prior rulings to the effect that section
1782 could not be used in aid of arbitration. This is an important
development, because where potential evidence is available in the
United States, section 1782 can be a powerful tool to obtain US-style
discovery that goes far beyond what is typically permitted under the
Model Law, international arbitration rules and soft law instruments,
such as the IBA Rules on the Taking of Evidence. For example, in In Re.
Ex Parte Application of Kleimar NV, the District Court for the Southern
District of New York held that the London Maritime Arbitration
Association arbitrations seated in London qualified as proceedings
before a ‘foreign tribunal’.68
In the face of an increasingly liberal approach of courts in some
jurisdictions to apply article 27 to foreign-seated arbitrations, the impor-
tance of provisions such as section 1782 in international arbitration, as
well as the international dimension in the enforcement of interim mea-
sures under the amendments to the Model Law in 2006 and the inclusion
of measures for the preservation of evidence and prevention of harm to
the arbitral process, it remains to be seen whether or not the approach
under article 1(2) may need to be revisited to include article 27. Among
66
Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76, 80 (2nd Cir. 2012).
67
Intel Corp. v. Advanced Micro Devices, Inc., 542 US 241 (2004).
68
In Re. Ex Parte Application of Kleimar NV, No. 16-MC-355, 2016 WL 6906712 (SDNY, 16
November 2016).
8. assistance from non-state courts? 731
others, it may be somewhat contradictory that parties may apply under

the new provisions of article 17 for interim measures to preserve evi-
dence, which would be enforced by the courts even outside the seat of the
arbitration, but may not if a similar application was made for assistance
in respect of taking evidence under article 27.

Court Assistance in Taking Evidence

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Article 27

Court Assistance in Taking Evidence

1. Background and Travaux Préparatoires

commercial arbitration.4 However, there were divergent views as to

As regards the second difﬁculty, where court assistance is required in a

permissive language encouraging support for such requests ‘according to

Article 27 encourages parties to provide evidence as required. While

2. Request for Assistance from Court – Approval

3. Exercise of the Court’s Discretion and Scope of Assistance

evidentiary orders by considering various factors, including policy rea-

4. Pre- and At-Trial Evidence

such discovery evidence is necessary for purposes of the arbitration

8. Assistance from Non-State Courts?

Model Law jurisdiction will approach this issue, considering that it

foreign courts to receive evidentiary requests from foreign-seated

The jurisprudence on the applicability of section 1782 to foreign arbi-

others, it may be somewhat contradictory that parties may apply under

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