September 10, 2019 Practice Points

What Is the Wayback Machine?

The website archive has the capability of challenging the credibility of a witness on cross-examination.

By David Y. Loh

The Wayback Machine is a little-known tool which allows users to view screenshots at particular points in time. It is maintained by a nonprofit organization known as the Internet Archive. Alas, it is not a complete record of the entire Internet, but this organization tries to preserve as much of the internet as is feasible. Use of this device creates the possibility of retrieving screenshots created years ago, especially prior to the threat of any litigation, when incentives of individuals and companies might be different.

This judgment arises from a petition filed by Shanghai Lan Cai Asset Management Co, Ltd. (SLC) for confirmation of an arbitration award issued by the Beijing Arbitration Commission.

In issuing the judgment, the presiding judge did not provide a well-reasoned decision to explain his reasoning. In fact, the judge simply adopted the proposed final judgment prepared by SLC’s counsel. As a result, we do not gain any insight into the court’s thinking as to why it issued the judgment.

Having said that, this decision is interesting because it effectively confirms a Chinese arbitration award. In the United States, we tend to question the impartiality of the Chinese legal system, and it is unusual to see Chinese arbitration awards or civil judgments being confirmed or enforced in the United States. By comparison, the undersigned is unaware of any U.S. arbitration award or civil judgment being enforced in a Chinese proceeding. Perhaps Chinese judges will, in the future, be more willing to consider enforcing a U.S. award or judgment.

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David Y. Loh is a member with Cozen O'Connor in New York City, New York.

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