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The Use of Evidence Obtained in US-American Discovery in International Civil Procedure Law and Arbitration in Switzerland
Journal
ASA Bulletin
ISSN
1010-9153
ISSN-Digital
2210-3716
Type
journal article
Date Issued
2009-06-15
Author(s)
Abstract
The gathering of evidence is a key element in legal proceedings. Contrary to the regulations in Switzerland, the US legal order allows for pre-trial discovery, i.e. the parties are entrusted with the collecting of evidence at an early stage. This diverging approach becomes relevant in civil proceedings or arbitral proceedings in Switzerland with a linkage to the USA. The question arises if and how parties may profit from the US-American discovery procedure. This paper wants to answer the question by examining the use of evidence gathered in US-American discovery in international proceedings before Swiss courts as well as arbitral tribunals located in Switzerland. Part one concentrates on the possibilities and limitations of legal assistance pursuant to 28 U.S.C. § 1782. In part two the utilization of evidence collected in discovery procedure in Switzerland, in the event of a party seeking legal assistance individually, is evaluated. Thereby, special consideration is given to the Hague Evidence Convention and the Swiss ordre public. The paper concludes with a short summary of the author's findings and rationalizations why evidence collected in discovery proceedings should be admitted.
Language
English
Keywords
International Civil Procedure
International Arbitration
Evidence
HSG Classification
contribution to scientific community
Refereed
No
Publisher
Kluwer Law International
Publisher place
Alphen aan den Rijn
Volume
27
Number
2
Start page
196
End page
212
Pages
17
Subject(s)
Division(s)
Eprints ID
54359