Originally from American Review of International Arbitration - ARIA

Preview Page

I.  INTRODUCTION

Since at least 1989, courts and commentators have debated whether 28 U.S.C. § 1782, which allows parties to a proceeding before a “foreign or international tribunal” to request assistance from U.S. district courts in obtaining evidence, is available in a private arbitration.   The main disputed questions have been (a) whether assistance for private arbitration is contemplated by the term “foreign or international tribunal” and § 1782’s legislative history; and (b) whether § 1782 helps or hinders international arbitration in light of (i) the possibility that parties will apply for assistance without the arbitrators’ approval and (ii) the differences between disclosure in U.S. courts and in international arbitration.

These issues are now before the United States Court of Appeals for the first time since the Supreme Court’s 2004 decision that sparked the latest round of the debate, Intel Corp. v. Advanced Micro Devices, Inc.   This article attempts to contribute to a resolution of the controversy by arguing as follows:

Judicial assistance in obtaining evidence is needed in order for international arbitration to be effective.  Section 1782, as applied by some courts, offers the necessary assistance, but also threatens to disrupt arbitral proceedings by allowing parties to request assistance without the arbitrators’ approval. Also, the unresolved questions about § 1782’s applicability to private arbitration create a risk that if arbitrators prevent assistance under § 1782, enforcement of the arbitral award will be refused on the ground that the party that requested disclosure in the United States was denied the right to present its case in the arbitration.  Therefore, the question of § 1782’s applicability to private arbitration needs to be resolved.  (Section II)

The language and legislative history of § 1782 suggest that it was not intended to be used for private arbitration.  (Section III.A)  The absence of such intent is also suggested by evidence, first addressed in this article, of the state of U.S. law on international arbitration when the modern version of § 1782 was enacted in 1964.  Most importantly, at that time the United States had declined to join the U.N. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) because of fundamental misgivings about international commercial arbitration, as expressed by the U.S. delegation to the 1958 U.N. arbitration conference.  (Section III.B)  The delegation’s Official Report, previously unpublished, is reproduced in this issue of the Review.

Section IV proposes changes to the law on international assistance in taking evidence for arbitration—in federal legislation or court rules, state law, the Hague Evidence Convention, the UNCITRAL Model Law on International Arbitration, arbitration procedure rules and other private agreements.

.