It is through arbitration that a great many of the world’s major commercial disputes are heard. Businesses want to avoid courts that they may perceive as being corrupt, biased or slow and they like having the opportunity to choose at least one of their arbitrators—and many like having their proceedings kept confidential. In eschewing national courts, international arbitration runs counter to the current political environment of nationalism in favor of a more international process. Recent case developments concerning how international commercial arbitration is conducted permit one to perceive greater openness by courts both in the United States and elsewhere in the world to accepting procedural measures involving arbitration that are not confined to national borders and practices.

A recent case in England, A & B v. C, D & E, [2020] EWCA Civ. 409, has, for the first time, made available discovery in England from third parties upon the request of arbitrators in a proceeding in another country. In that case, decided on March 19, 2020, the Court of Appeal overruled a lower court’s denial of an application for testimony to be taken of a witness in England for use in an arbitration in New York that involved a dispute as to whether certain payments made by two of the parties to a joint venture (Parties C and D in the English appeal) were properly deductible as legitimate expenses for purposes of determining profit-sharing, or whether they were non-deductible bribes. The person with knowledge of the circumstances of the payments was an individual referred to in the appeal as Party E, who had negotiated the payments with one G, who was acting on behalf of an Asian government and who was thereafter indicted in the United States for violation of the Foreign Corrupt Practices Act.

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