Herbert Smith Freehills review the August 2018 decision of the English Commercial Court, where the Court dismissed Dreymoor Fertilisers Overseas PTE Ltd’s application to continue an injunction preventing the enforcement of an order of a U.S. court granting discovery under section 1782 of the United States Code which required one of Dreymoor’s employees to be deposed and produce evidence for use in various international proceedings by Eurochem Trading GMBH against Dreymoor. Dreymoor argued that enforcing the Order would constitute unconscionable conduct as it would interfere with its preparation for arbitration proceedings against ECTG. While the Court accepted that the enforcement of the Order could potentially be unfair, as they would effectively provide an opportunity to cross-examine the same witness twice, whether to injunct the enforcement of such an order required a careful case-by-case analysis and based on various case-specific factors, the Court decided that it would not be unconscionable to allow ECTG to enforce the Order and dismissed Dreymoor’s application to continue the injunction.
The authors observe that the decision reaffirms past applicable case law, emphasising that enforcement of section 1782 orders (or other foreign orders) will only be prevented if their application would amount to unconscionable conduct and that whether the unconscionability threshold is reached requires an overall evaluation in the specific circumstances of a case. The decision is also consistent with the English courts’ past approach to preserve comity and ensure the mutual recognition of foreign judicial acts.