The High Court recently confirmed that the Arbitration Act 2010 can be used to obtain orders compelling a witness in Ireland to give evidence by deposition for use in overseas arbitration proceedings.[1] The decision also confirms the requirements to be met as part of an application to take this evidence. While similar relief for foreign court proceedings has long been available under the Foreign Tribunals Evidence Act 1856, and more recently under Regulation (EU) 2020/1783 for proceedings in other EU Member States, this is the first reported occasion where the Arbitration Act 2010 has been used for this purpose. The decision is important because it definitively confirms there is an effective statutory basis to take evidence in Ireland in support of foreign arbitral proceedings.
Background
The underlying arbitral proceedings concerned an agreement between TikTok and Rosendin for fit-out services for various data halls to be used by TikTok. Some of these services were sub-contracted by Rosendin. The relevant witness, a US citizen, was the founder of an Ohio registered subcontractor and was the lead project manager for its subcontracted work on the data halls. He had initially engaged with TikTok about giving evidence but ultimately ceased doing so. By that time, he was resident in Dublin. The arbitrator agreed to seek international judicial assistance by issuing a letter of request to the Irish court to obtain the proposed witness’s evidence for use at the arbitration hearing. With Rosendin’s consent, the arbitrator authorised TikTok to bring the necessary application to the Irish court.
The application
The application was brought ex parte (without notice to the other side) under the Arbitration Act 2010, Article 27 of the UNCITRAL Model Law, which has force of law in Ireland, and Order 39 of the Rules of the Superior Courts (RSC). It was heard by Mr Justice Barniville, the President of the High Court, who delivered an ex tempore ruling. He recited the background to the request, noting that the arbitrator had set out the subject matter about which the intended witness might give evidence. The request also identified confidentiality concerns and proposed safeguards for the witness’s evidence. It also addressed the scope of the evidence and who should cover the cost of the deposition. The ex parte application was supported by an affidavit sworn by the instructing solicitor. It set out the background to the engagement with the witness and outlined the specific requests made of the court. The affidavit also made specific statements with regard to the evidence required.
The law
Mr Justice Barniville began by reviewing the authority of the court to make the orders sought. Section 6 of the Arbitration Act 2010 gave the UNCITRAL Model Law the force of law in Ireland. Section 15 provided that a reference in Article 27 of the Model Law to an arbitral tribunal includes tribunals conducting arbitration proceedings outside of Ireland. Article 27 empowers courts to assist in taking evidence for arbitration purposes and, under Section 9 of the Arbitration Act, the High Court has jurisdiction for this purpose. He also cited Order 39 RSC: rule 4 which provides for examining witnesses under oath, while rules 8, 10 and 11 address practical aspects of taking evidence before an examiner. An examiner in this context is the person appointed by the court to administer the oath and before whom the examination/deposition is conducted. As referenced, the affidavit grounding the application made various statements about the evidence required. This was to address the requirements set by the High Court in Cornec v Morrice[2] in an application under the Foreign Tribunals Evidence Act 1856 for evidence in support of court proceedings. In that particular case, Mr Justice Hogan confirmed that, before an order could be made giving effect to assistance sought by another court, four matters needed to be met, namely that:
- The evidence proposed to be taken must be relevant to the foreign proceedings
- The application must not be oppressive
- The grant of the request must not override any established privilege or protection available to the prospective witness, and
- The evidence taken on commission must itself be admissible under the law of the requesting state.
Discussion
Mr Justice Barniville noted that there was no reported decision of a court having previously granted a similar order under Article 27 of the Model Law or Section 15 of the Arbitration Act 2010. However, his attention was drawn to two prior decisions where the jurisdiction was raised without being squarely decided upon.[3] Ultimately, he expressed the view that he was “quite satisfied” the court had jurisdiction to make the orders sought in this application. He also observed that the grounding affidavit had met the four requirements identified in Cornec v Morrice. He therefore progressed to make various orders regarding the taking of evidence of the witness. The orders included:
- Requiring the attendance of the witness to be deposed before the agreed examiner at a date to be agreed
- Providing for examination and cross-examination of the witness by the parties, and
- Expressly providing that the conduct of the deposition would be subject to the law of the arbitral seat.[4]
Since the initial order was obtained without notice to the witness, he was given the right to apply to set it aside. The parties were also given permission to return to court if needed. The costs of the deposition were dealt with as requested, and no order was made in respect of costs of the application itself.[5]
Conclusion
The decision is the first reported case where Article 27 of the Model Law and Section 15 of the Arbitration Act 2010 have expressly been relied on in making orders for the taking of evidence in support of foreign arbitral proceedings. Any previous uncertainty has been addressed and practitioners can now advise clients that there is a clear basis which has been successfully used to obtain evidence in support of overseas arbitrations. The decision also suggests that the four requirements from Cornec v Morrice, originally developed for court assistance under the Foreign Tribunal Evidence Act 1856, apply equally to arbitration-related applications. It is therefore important to ensure that the grounding affidavit for this type of relief under the 2010 Act will satisfy the court in those regards.
For more information and expert advice on commercial disputes, contact a member of our Commercial Disputes team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
[1] TikTok Inc v Rosendin Electric Inc. [2025] IEHC 357
[2] [2012] 1 IR 804
[3] Narooma Ltd. v. Health Service Executive [2020] IEHC 315 where brief reference to the powers under Article 7 was made, and Ocean Point Development Company Limited (In Receivership) v. Patterson Bannon Architects Ltd & Ors [2019] IEHC 311 where the issue for determination related to whether the arbitration agreement was incapable of being performed.
[4] This must be requested (as the default is that Irish procedural rules would apply), but makes sense where the deposition will usually be conducted by the lawyers instructed in the underlying proceedings.
[5] As is usual in respect of ex parte applications.
