On March 2, 2026, Justice Cohen of the New York County Commercial Division issued a decision in Shell NA LNG LLC v. Venture Global Calcasieu Pass, LLC, 2026 NY Slip Op. 30753(U), holding that discovery is available in a proceeding to vacate an arbitral award, although denying the application in this proceeding, explaining:
Unlike in a plenary action, where discovery is available as of right, CPLR 408 provides that in a special proceeding such as this one leave of court shall be required for disclosure except for a notice [to admit.
Although VGCP suggests that discovery generally should not be permitted in special proceedings concerning arbitral awards, CPLR 408 does not distinguish among the various types of special proceedings when it comes to the availability of discovery. That said, context matters. While some courts have exercised discretion to permit discovery in post-arbitration proceedings, it does appear (from the paucity of authority cited by the parties) that doing so is relatively rare, perhaps due in part to the courts’ generally deferential role in reviewing arbitral awards. In any event, requests for leave to take discovery in a special proceeding must be decided based on the particular facts and circumstances.
Here, Shell’s request for CPLR 408 discovery suffers from the additional complication that it seeks essentially the same supplemental discovery it repeatedly but unsuccessfully sought from the Tribunal during the evidentiary hearing. Thus, its request essentially requires the Court to second-guess the arbitrators’ determinations with respect to the scope of discovery, something courts are understandably reluctant to do.
Deference to the Tribunal’s discovery rulings is particularly appropriate in this case given the circumstances in which the issue was presented. The arbitrators themselves witnessed the direct and cross-examination of the Independent Engineer, as well as the “careful” statements of VGCP’s counsel on which Shell now focuses much attention. Thus the arbitrators were in a far better position than this Court to assess whether, in light of the extensive discovery process they themselves oversaw, on balance there was a need for additional discovery in the midst of the evidentiary hearing or any concerns about the credibility of VGCP’s reputable counsel.
Shell’s reliance on Eletson Holdings, Inc v Levona Holdings Ltd (2024 WL 4100555 [SDNY 2024]) is misplaced. In that case, the court permitted post-arbitration discovery only after subsequent bankruptcy proceedings revealed the existence of previously undisclosed materials, notwithstanding that an application seeking the same materials had been rejected during the arbitration. Indeed, the court had initially refused to permit any further discovery, holding that the respondent had already been afforded a full opportunity to present its case and was not entitled to a second bite at the apple. Here, Shell’s sole support for its motion consists of the hearing transcript itself, amplified by conclusory and speculative accusations of misrepresentation by VGCP’s counsel. To the extent Shell sought to test opposing counsel’s representations, it was afforded ample opportunity by the Tribunal to do so, but the Tribunal was not persuaded.
Ultimately, Shell now seeks a third bite at the apple—making an essentially identical application to this Court in the hope of obtaining a different outcome and using it to relitigate the arbitration. That is not a persuasive basis for seeking post-arbitration discovery.
To be sure, there is some tension between respecting the Tribunal’s discovery decisions and the otherwise reasonable instinct to give a petitioner latitude to develop the evidentiary basis of its contentions. But that tension is of Shell’s own creation. To grant Shell’s discovery request would be to permit the very discovery rejected by the Tribunal on the speculative basis that perhaps the Tribunal did not accurately assess the risk that relevant documents were being withheld. As described in greater detail below, that is exactly the type of judicial second guessing that is not permitted in a proceeding under CPLR 7511. By contrast, the few cases that have permitted discovery in aid of a petition to vacate an arbitration award have focused on allowing the petitioner to develop challenges based on facts external to the panel’s decision on the merits.
(Internal quotations and citations omitted).