Taking of evidence by way of deposition from a non-party witness in aid of foreign arbitration proceedings - A and B v C, D and E [2020] EWCA Civ 409

Published: 8/4/2020

The late Frank Sinatra sang “Start spreading the news, I'm leaving today, I want to be a part of it, New York, New York”. His advice was not followed by the third respondent in A and B v C, D and E [2020] EWCA Civ 409 who, based in England, refused to give evidence in arbitration proceedings, seated in the New York, to which he was a third party.

On 19 March 2020, the Court of Appeal handed down judgment, holding that section 44(2)(a) of the Arbitration Act 1996 (the "Arbitration Act" or the "Act"), which provides for the Court's powers in respect of the taking of evidence of witnesses, does give the Court power to order the deposition of a non-party witness in England, in support of an arbitration seated in and being conducted in a foreign jurisdiction. This decision and its interplay with the controversial decisions in Cruz City 1 Mauritius Holdings v Unitech Limited [2014] EWHC 3704 (Comm) and DTEK Trading SA v Morozov [2017] EWHC 94 (Comm) is discussed by associate Jonas Habert.

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