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Remarks by Carrie Shu Shang

Published online by Cambridge University Press:  24 March 2023

Extract

Increasingly, issues are arising regarding transnational access to evidence in electronic formats in dispute resolution proceedings. Currently, there is not a comprehensive solution to cross-border gathering of electronic stored information and regulations in the area remain a patchwork of divergent instruments. Over the past few years, private practitioners and in-house counsel have had to familiarize themselves with various discovery rules, data privacy laws, and data localization laws to ensure that they transfer data in ways that are compliant with strict cross-border data transfer requirements. Further, the current private international law framework seems outdated for the rapidly changing transnational e-evidence discovery needs. This Panel, organized by the ASIL Private International Law Interest Group (PILIG), addressed issues concerning cross-border conflicts of e-evidence in party-managed processes and whether there is a “best practice” for adjudicators and parties to co-develop such a protocol. As the Co-Chair of PILIG, I had the pleasure of moderating the Panel.

Type
Transnational Discovery of E-Evidence: Is There a Best Practice?
Copyright
Copyright © The Author(s), 2023. Published by Cambridge University Press on behalf of The American Society of International Law

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Footnotes

This panel was convened at 3:30 p.m. on Friday, April 8, 2022, by its moderator Rekha Rangachari of New York International Arbitration Center, and Carrie Shu Shang of California State Polytechnic University, Pomona, who introduced the speakers: Vivian Curran of University of Pittsburg School of Law; and Megan Crowley of Covington & Burling LLP.

References

1 General Data Protection Regulation, Regulation (EU) 2016/679, Art. 44.

2 Wangluo Anquan Fa (网络安全法) [Cybersecurity Law], Art. 21 (promulgated by the Standing Comm. Nat'l People's Cong. Nov. 7, 2016; effective June 1, 2017).

3 Shuju Anquan Fa (数据安全法) [Data Security Law], Arts. 21, 27, 30 (promulgated by the Standing Comm. Nat'l People's Cong. June 10, 2021; effective Sept. 1, 2021).

4 Fan Waiguo Zhicai Fa (反外国制裁法) [Anti Foreign Sanctions Law], Art. 14 (promulgated by the Standing Comm. Nat'l People's Cong. June 1, 2021; effective June 1, 2021).

5 The Circuit split has since been resolved in the consolidated decision of ZF v. Luxshare and AlixPartners v. Fund for Protection of Investors’ Rights in Foreign States, where the U.S. Supreme Court held that judicial assistance afforded under 27 USC § 1782 was not to be extended to foreign commercial arbitration proceedings. ZF Automotive US, Inc. v. Luxshare, Ltd. (argued Mar. 23, 2022, opinion delivered June 13, 2022).