Hans Smit - Stanley H. Fuld Professor of Law, and Director, Center for International Arbitration and Litigation Law, Columbia University. The author provided the text of this article to counsel in the Intel v. AMD case before they delivered their oral arguments before the Supreme Court. Regrettably, he did not manage to have it published before the Supreme Court rendered its decision. It is now published with a Postscript that identifies to what extent the Supreme Court has now definitely settled questions that Section 1782, despite its clear text, has raised.
Since its revision in 1963, Section 1782 of Title 28 of the United States Code has engaged the persistent interest of courts, practitioners and commentators. This interest has led to conflicting decisions and views. The most recent instance is the decision of the Ninth Circuit in Intel Corporation v. Advanced Micro Devices, Inc.1
In this case, Advanced Micro Devices, Inc. (AMD), a U.S. based corporation, filed with the European Union Commission a complaint alleging violation of European Union antitrust rules by Intel, also a U.S. based corporation. Relying on Section 1782, AMD then sought evidence located in the United States relating to the conduct complained of. This request raised the following issues: (1) is AMD an “interested person” in the sense of Section 1782; (2) are the proceedings before the E.U. Commission proceedings before “a foreign or international tribunal;” (3) must the information sought be discoverable or admissible under the law of the foreign or international tribunal; and (4) should the district court, in exercising the discretion given by Section 1782, grant the request?2