Irish High Court Assistance for Foreign-Seated Arbitration: Enforcing an Arbitrator’s Letter of Request to Compel a Non-Party Deposition under Article 27 Model Law

1. Introduction

This decision concerns the Irish High Court’s power to assist an arbitration seated outside Ireland—here, a US arbitration administered by JAMS in San Francisco—by compelling a person believed to be resident in Ireland to give sworn testimony for use in that arbitration.

The claimant in the arbitration (TikTok Inc.) sought recognition and execution in Ireland of an arbitrator’s request for judicial assistance (letters rogatory/letter of request), aimed at obtaining deposition testimony (and related procedural directions) from a non-party witness, Mr Saari, at a Dublin address. The application was made ex parte, as permitted by Order 56, rule 4(4) RSC, and was brought with the arbitrator’s permission and at her request, with the respondent’s consent recorded in the request.

The dispute in the underlying arbitration is a commercial contract/tort dispute arising from a Master Services Agreement for works connected with data halls; the witness was said to have been involved via a subcontractor (Conatech LLC) in addressing design issues after rejection of equipment by a County Fire Marshal.

2. Summary of the Judgment

• The High Court held it had jurisdiction under Article 27 of the UNCITRAL Model Law (as given the force of law by s.6 Arbitration Act 2010) and s.15 Arbitration Act 2010 to assist a foreign-seated arbitral tribunal in taking evidence in Ireland.
• The Court recognised and gave effect in Ireland to the arbitrator’s letter of request and ordered the witness to attend for examination on oath/affirmation (including cross-examination-style questioning) before a court-appointed commissioner.
• Although the application arose under the Model Law/2010 Act (not the 1856 legislation), the Court treated as satisfied the four conditions identified by Hogan J in Cornec v. Morrice [2012] 1 I.R. 804 (relevance, non-oppressiveness, no override of privilege/protection, and admissibility in the requesting forum).
• The Court granted detailed procedural directions on duration, confidentiality (via an arbitral protective order), stenography, video recording, remote attendance, reservation of objections for the arbitrator, costs allocation, and service (including by WhatsApp), and ensured fairness by granting the witness liberty to apply to set aside on notice.
• No order was made as to the costs of the Irish application.

3. The Orders Made (Practical Output of Article 27 Assistance)

4. Analysis

4.1 Statutory and procedural architecture: Article 27 + s.15 + RSC

The Court’s reasoning is anchored in a tightly interlocking framework:

• Article 27 UNCITRAL Model Law empowers an arbitral tribunal (or a party with tribunal approval) to request assistance from a “competent court” in taking evidence; the court executes the request within its competence and under its own evidence-taking rules.
• Section 15 Arbitration Act 2010 removes any doubt that Article 27 extends to tribunals conducting proceedings “in a place other than the State”. This is the crucial statutory bridge to foreign-seated arbitrations.
• Order 56 r.4(4) RSC permits an Article 27 request to be made ex parte on affidavit and applies Order 39 (taking of evidence) mutatis mutandis.
• Order 39 RSC supplies the domestic mechanics: examination on oath (r.4), witness expenses (r.8), presence/cross-examination (r.10), and the method for recording depositions and handling objections (r.11).

The decision’s practical significance lies in showing how a foreign arbitral request is “translated” into enforceable Irish court orders using established RSC tools designed for commissions/depositions.

4.2 Jurisdiction to obtain evidence from a non-party witness in Ireland

A recurring uncertainty in arbitration support litigation is whether court powers can reach non-parties. The Court was satisfied it had jurisdiction to make the orders sought, notwithstanding that the witness was not a party to the arbitration, and notwithstanding the foreign seat.

While Barniville P. noted the absence of a prior reported Irish decision “dealing with a previous application for similar orders made on foot of letters of request pursuant to Article 27 of the Model Law and s. 15 of the 2010 Act”, he treated the statutory text (Article 27 and s.15) and the RSC machinery as sufficient to ground jurisdiction.

4.3 Importing the “Cornec conditions” into the Article 27 context

A central feature is the Court’s reliance on the four conditions identified by Hogan J in Cornec v. Morrice [2012] 1 I.R. 804—a case under the Foreign Tribunals Evidence Act 1856, not the Model Law.

Barniville P. accepted that the applicant’s affidavit evidence satisfied the following conditions (as framed in the judgment):

1. Relevance of the proposed evidence to the foreign proceedings.
2. Non-oppressiveness of the request to the proposed witness.
3. No override of any established privilege or protection available to the witness.
4. Admissibility of the evidence in the requesting state/forum.

The jurisprudential move matters: it suggests that, even where the statutory basis is Article 27, the High Court will likely expect applicants to satisfy (and evidence) safeguards akin to those applied in letters rogatory practice—thereby embedding a structured discretion-limiting checklist into Model Law assistance applications.

4.4 Confidentiality: arbitral protective orders and Irish court processes

The Court granted a confidentiality regime aligning Irish court compulsion with the parties’ confidentiality expectations in arbitration, by expressly subjecting the deposition and resulting materials to the arbitrator’s protective order.

The judgment also acknowledged a broader arbitration norm: while the Arbitration Act 2010 does not codify confidentiality, arbitrations are “routinely treated as confidential” absent agreement to the contrary, and the applicant pointed to the All Ireland Arbitration Rules 2020 (Chartered Institute of Arbitrators, Irish Branch) as an example of that practice.

Importantly, confidentiality was also integrated into the service directions: the Court required that any confidential material served on the witness (including the request) be kept strictly confidential, while preserving the witness’s ability to consult legal counsel—balancing arbitration confidentiality with basic procedural fairness.

4.5 Procedure design: accommodating US-style deposition features within Irish rules

The Court’s directions resemble a US deposition more than a traditional Irish commission, but are expressly routed through Order 39 powers: defined hours “on the record”, stenography, video recording, and reservation of objections to be decided later by the arbitrator.

Particularly notable is the order that privileges and duties not to give evidence be “the same as if” the witness were testifying under California law (including the California Code of Civil Procedure). This is a pragmatic attempt to ensure the evidence-gathering exercise produces material usable in the forum where the arbitration is seated and governed (California law/JAMS rules), while still being executed through Irish procedural competence.

The decision thus functions as a template for “procedural interoperability”: Irish compulsion powers + Irish supervision (commissioner) + foreign-law deposition expectations to maximise admissibility and utility in the arbitration.

4.6 Ex parte nature and fairness: liberty to set aside

Because the application was made without the witness present, the Court emphasised fairness by granting liberty to apply to set aside the order on 72 hours’ notice, and a general liberty to apply for implementation issues. This is consistent with the idea that the court’s assistance should not become oppressive and that the witness should have a meaningful opportunity to challenge scope, burdensomeness, or privilege issues.

4.7 Service innovations: WhatsApp service

The Court directed service not only by post but additionally by WhatsApp message. In practical terms, this recognises that a compelled witness may be difficult to engage through conventional means and that effective notice is a precondition to any fair and enforceable compulsion order—particularly under tight arbitration timetables.

5. Precedents Cited and Their Role

5.1 Cornec v. Morrice [2012] 1 I.R. 804

Although decided under the Foreign Tribunals Evidence Act 1856, Cornec supplied the operative safeguard framework. Barniville P. treated those four conditions as applicable and found them satisfied on the affidavit evidence. The case thereby operates as a controlling analogue for Irish courts when asked to compel evidence for external adjudicative processes, including (as here) foreign-seated arbitration.

5.2 Narooma Ltd v. Health Service Executive [2020] IEHC 315

Barniville P. referred to his earlier brief (obiter) observations about Article 27 and Order 39, including the possibility that they might extend to obtaining evidence from non-parties. The present decision moves beyond that earlier caution by making concrete orders compelling non-party evidence in aid of arbitration.

The judgment also notes that Narooma drew attention to English authority on comparable issues (see below), without reaching conclusions at the time.

5.3 A and B v. C, D and E [2020] EWCA Civ 409

This English Court of Appeal decision was referenced in Narooma (and recalled here) in connection with the scope of court powers to order evidence from non-parties in arbitration-related contexts (in England, via s.44 Arbitration Act 1996). While not applied directly, its mention situates the Irish approach within a broader common law conversation: how far courts will go to support arbitral fact-finding where third parties hold relevant evidence.

5.4 Ocean Point Development Company Limited (in Receivership) v. Patterson Bannon Architects Limited & Ors [2019] IEHC 311

This case was referenced for its description of Article 27’s mechanism (tribunal request or party request with tribunal approval). In Ocean Point, non-party evidence issues arose in a different doctrinal setting (Article 8 and whether an arbitration agreement was “incapable of being performed”). In the present case, the Court uses Article 27 for its intended operational purpose: obtaining evidence with court assistance.

6. Complex Concepts Simplified

• Article 27 (Model Law) assistance: A Model Law tool allowing courts to help an arbitration gather evidence (documents/testimony) when the tribunal cannot compel it directly, especially from third parties.
• Letters rogatory / letter of request: A formal request from one adjudicative authority (here, an arbitrator/tribunal) to a court in another country asking it to use its coercive powers to obtain evidence.
• Examination on commission (Order 39): A High Court-supervised process for taking sworn evidence outside a courtroom setting, before a nominated “examiner”/commissioner, with a written (and here also video) record.
• Protective order: A binding confidentiality regime (typically made by a tribunal/court) restricting how testimony and documents may be used or disclosed.
• Reserved objections: Objections are noted during questioning but not ruled on by the commissioner; they are determined later by the adjudicator who will decide admissibility (here, the arbitrator).
• Liberty to apply: A built-in permission to return to court to vary/set aside or resolve implementation disputes—especially important where orders are made ex parte.

7. Impact and Significance

• Pro-arbitration judicial support with structure: The High Court confirmed it will actively facilitate foreign-seated arbitration evidence-gathering via Article 27/s.15, while controlling discretion through the Cornec safeguards.
• Roadmap for practitioners: The decision provides a workable template for future applications: (i) tribunal-approved request; (ii) affidavit evidence addressing relevance/oppression/privilege/admissibility; (iii) proposed commissioner and deposition logistics; (iv) confidentiality plan; (v) service plan; (vi) witness fairness via liberty to apply.
• Enhanced utility of Irish seat as an evidence forum: Even where Ireland is not the arbitral seat, parties may use Irish courts to access evidence located in Ireland, improving Ireland’s practical importance in cross-border disputes.
• Likely future focus areas: Subsequent cases may test the limits of (a) imposing foreign-law privilege regimes through Irish orders, (b) the scope of confidentiality protections in court-assisted processes, and (c) proportionality where third-party burdens are significant.

8. Conclusion

Tik Tok Inc. v Rosendin Electric Inc. (Approved) [2026] IEHC 555 confirms that the Irish High Court can and will use Article 27 of the UNCITRAL Model Law (as extended by s.15 Arbitration Act 2010) and the RSC evidence-taking machinery to compel a non-party witness in Ireland to give sworn deposition testimony for use in a foreign-seated arbitration.

The Court’s approach is both enabling and disciplined: it facilitates effective arbitral fact-finding under tight procedural timetables, while grounding the exercise of discretion in the Cornec safeguards, embedding confidentiality protections, and ensuring fairness through liberty to apply to set aside ex parte orders.