Prof. Dr. H. Ercument Erdem
Document production requests in international arbitration play an important role, since they ensure that the parties have access to documents that are not in their possession, in order to provide sufficient proof for their claims. In parallel with this important role, document production requests are closely related to the parties’ right to due process, since the documentation of an issue may totally depend on a document production request.
Last week, the Kardashian sisters lost their bid in the United States Court of Appeals for the Eleventh Circuit to compel Kroma Makeup EU, LLC (“Kroma EU”) to arbitrate a dispute. As background, Lee Tillett, Inc. (“Tillett”) developed and registered a trademark more than a decade ago for a line of cosmetics known as “Kroma” cosmetics. Tillett gave Kroma EU the exclusive right to sell the Kroma cosmetics line in the United Kingdom and European Union, as well as the right to use the Kroma trademark. The licensing agreement between Tillett and Kroma EU contained an arbitration provision requiring these two parties to arbitrate all “disputes arising between them” under the licensing agreement.
According to a new Eleventh Circuit opinion, Feggestad v. Kerzner Int’l Bahamas, Ltd., foreign businesses that employ online purchase or reservation systems to sell goods or services to U.S. customers can enforce so-called “forum selection” clauses—contract clauses that designate the geographic location of the court that will hear disputes arising from the transaction—found in online purchase confirmations in order to avoid having to defend lawsuits in courts in the United States. In the Feggestad case, the Eleventh Circuit upheld dismissal of a complaint filed in the United States District Court in the Southern District of Florida by a U.S. citizen for injuries sustained at the Atlantis Resort in The Bahamas.
Expert Witnesses in International Commercial Arbitration
In international arbitration, a party may submit evidence in different categories. Opinions of expert witnesses forms one of these categories. Expert opinions are mostly relied upon in complex cases that require special knowledge, such as construction, oil and gas, and insurance disputes, or in cases where damages quantum needs to be determined.
The Bahamas Supreme Court gave an important judgement regarding the efficacy of foreign arbitral awards for being relied upon as the basis of a statutory demand to evidence insolvency of the debtor in the liquidation case of In the Matter of BHP International Markets Limited 2016/COM/bnk/0038. The Court held that prior enforcement of the foreign award under the Arbitration (Foreign Arbitral Awards) Act, 2009 was not necessary and it dismissed opposition to the statutory demand.