Originally from American Review of International Arbitration - ARIA

Preview Page

THE EXTRATERRITORIAL REACH OF 28 U.S.C. § 1782 IN
AID OF FOREIGN AND INTERNATIONAL LITIGATION
AND ARBITRATION
Tyler B. Robinson∗

I. INTRODUCTION

Section 1782 of Title 28 of the United States Code affords federal district
courts in the United States discretion to order persons “resid[ing]” or “found” in
the United States to give testimony or produce documents or other things “for use
in a proceeding in a foreign or international tribunal . . . upon the application of
any interested person.”1 Section 1782 is a powerful tool – broadly available to
foreign and international tribunals, foreign litigants, and any other “interested
person”2 – to obtain discovery of documents and testimony from individuals or
business entities located in the United States.3 The statute’s principal objective, as
illuminated by the United States Supreme Court, is “to assist foreign tribunals in
obtaining relevant information that the tribunals may find useful but . . . cannot
obtain under their own laws.”4 A majority of U.S. courts have held that at least
some species of international arbitral tribunals qualify as “a foreign or
international tribunal” within the meaning of § 1782, thus making the construction
and application of § 1782 in the U.S. courts a topic of considerable interest among
practitioners of international arbitration.5

In this latter connection, many courts have expressed doubts about whether
§ 1782 authorizes a U.S. court to order a person “residing” or “found” in the
United States to produce documents within that person’s possession, custody or
control that are located outside the United States.6 These courts, some of them