CLOUT
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The plaintiff, a charterer, had a dispute with the defendant, a shipowner, involving freight and demurrage costs. Pursuant to an arbitration clause contained in the charterparty the matter was submitted to a single arbitrator in New York who issued a final award.

The plaintiff, who was not satisfied with the award as far as the claim for demurrage costs was concerned, applied to the court for an interim order in order to secure the evidence of a witness with regard to that claim and a number of additional claims for unjust enrichment, quantum meruitand misrepresentation.

The court referred to the travaux préparatoiresof MAL (A/CN.9/264, article 9, paras. 1 and 4) pursuant to sections 4(2)(b), 5 and 6 of the International Commercial Arbitration Act and found that it had jurisdiction to grant an interim order pursuant to article 9 MAL. The court noted that it had a mandate to render assistance in matters of evidence in arbitration but it should avoid taking measures conducive to dilatory tactics of the parties (A/CN.9/264, article 27, paras. 5-6).

The court dismissed the plaintiff's application on the ground that it did not meet the test of rule 466.3(3)(a) of the Federal Rules of Procedure that the witness whose testimony is sought "may have information on an issue in the action" since the issue of demurrage had been decided upon by the arbitrator and the court was not satisfied that the evidence before it demonstrated that the witness had any information on the other issues raised in the application.

Additional Information published in later CLOUT issue (on "9 February 2000"):

Abstract published in English: [1996] Model Arbitration Law Quarterly Reports, Vol. 2, issue 1, 61

Text of the court decision published in English: [1996] Model Arbitration Law Quarterly Reports, Vol. 2, issue 1, 65

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