Use of Section 1782 in Aid of International Arbitration - Part 3 Chapter 20 - The Practice of International Litigation - 2nd Edition
Lawrence W. Newman has been a partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of 4 works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
Section 1782 of Title 28 of the U.S. Code is a powerful, but probably much underutilized, weapon in the arsenal of those who practice in the international litigation arena. Over the past few years, there has been much written about whether Section 1782 may be used in connection with an international arbitration proceeding. Recently, the International Commercial Disputes Committee of the City Bar Association (of which the authors are members) issued a report that analyzed this issue and recommended a number of “best practices.” This article discusses certain highlights of that Report.
The Background of Section 1782
First, some background. As the Report describes, the history of Section 1782 can be traced to an 1855 statute that provided that, in response to a letter rogatory from a foreign court, a circuit court was authorized to “designate” a “commissioner” to “compel . . . witnesses to appear and depose in the same manner as to appear and testify in court.” Later, a second strand of legislation developed that authorized members of certain “international tribunals” to issue subpoenas to compel testimony and the production of documents.
In the late 1950s, Congress called for a complete overhaul of Section 1782, resulting, in 1964, in a new Section 1782(a), which remains at the heart of the current version of the statute. Section 1782 provides, broadly speaking, that if discovery is sought in a federal district court for use “in a proceeding in a foreign or international tribunal,” the court is authorized to order the production of documents, as well as depositions of witnesses, located within that court’s district. An application under Section 1782 may be brought by “an interested person” (including a party to the foreign proceeding) and is typically made ex parte. The statute does not require that the foreign proceeding be pending at the time of the application.
The question has arisen as to whether an arbitral tribunal qualifies as an “international tribunal” under Section 1782. In Nat’l Broad. Co., Inc. v. Bear Stearns & Co., Inc., the Second Circuit answered this question in the negative. The Fifth Circuit, in Republic of Kazahkstan v. Beidermann, reached the same conclusion, holding that Section 1782 had been drafted to facilitate discovery for international government-sanctioned tribunals, not private arbitration tribunals.