Originally from the ICDR Handbook on International Arbitration Practice - Second Edition

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This article explores the case law addressing whether Section 1782 discovery is available to private or governmental international arbitral tribunals, or both.  It discusses the lessons from the case law and the issues involved in planning to make a Section 1782 application.

I.    Factors to Consider in Light of U.S. Case Law

Broad and expansive discovery distinguishes litigation in the United States from litigation in almost every other nation.  This comparatively unchecked pre-trial procedure has often driven parties to resolve their cross-border commercial disputes in international arbitration, where discovery and prehearing procedures can be streamlined.  This raises the question of whether the discovery allowed by Section 1782 of Title 28 of the United States Code applies to international arbitral tribunals, particularly those created under private arbitration agreements.  There are many articles discussing the case law on this issue and this article covers some of the same ground.  But what makes this article different is that it discusses some practical considerations concerning Section 1782 that parties should take into account when: (1) negotiating a dispute resolution clause (for example, whether to limit Section 1782 discovery in the arbitration agreement or prescribe particular procedures, and where to seat the arbitration), (2) preparing to arbitrate (such as what to look for in selecting the arbitrators), and (3) contemplating making a Section 1782 request in court (for instance, where to file the request—i.e., the district court in which to file and the timing of the request).