What is the Effect of International Arbitral Rules on the Availability of Assistance in the Production of Evidence Pursuant to 28 U.S.C § 1782? - WAMR 2010 Vol. 4, No. 3

David Orta is a Partner at Arnold & Porter LLP
and a commercial litigator and trial lawyer with
many years of experience handling international
arbitrations and complex, commercial litigation.
He is a member of Arnold & Porter LLP’s
international arbitration and litigation practice groups and
devotes most of his time to representing clients in international
disputes. He has a particular emphasis in investor-state
arbitration under bilateral and multilateral investment treaties
administered under the auspices of the International Centre for
Settlement of Investment Disputes (ICSID). He also has handled
ad hoc arbitrations administered under UNCITRAL Rules and
international arbitrations administered by the International Court
of Arbitration of the International Chamber of Commerce (ICC) as
well as the International Centre for Dispute Resolution
(ICDR/AAA). Mr. Orta also acts as lead counsel in international
litigations for U.S. and foreign clients.

Giselle Fuentes is an associate at Arnold & Porter
LLP in the firm’s Washington, D.C. office where
she is a member of the firm’s international
arbitration, litigation, and Latin America groups.
Ms. Fuentes focuses her practice on the
representation of foreign sovereigns in international arbitration
disputes. She has particular experience representing Latin
American sovereigns in arbitrations before the International
Centre for the Settlement of Investment Disputes (ICSID) in
matters filed under the auspices of free trade agreements and
bilateral investment treaties. She has also recently represented a
Central-American state-owned power company in an UNCITRAL
ad hoc arbitration against a foreign investor.

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WHAT IS THE EFFECT OF INTERNATIONAL

ARBITRAL RULES ON THE AVAILABILITY OF
ASSISTANCE IN THE PRODUCTION OF
EVIDENCE PURSUANT TO 28 U.S.C § 1782?

David M. Orta, Giselle Fuentes*

I. INTRODUCTION

International arbitration practitioners may be aware of a
powerful tool that can be utilized to obtain documents and/or
testimony from opposing parties, possible witnesses, or other
third parties that may possess relevant information and who
reside or can be found in the United States. That tool is found in
Title 28 of the United States Code under section 1782 (“Section
1782”).1

This Article examines the inter-relationship between Section
1782 and the rules under which international arbitrations are
generally governed, including the arbitration rules for the
International Centre for Settlement of Investment Disputes
(“ICSID”),2 the newly-revised arbitration rules of United Nations
Commission on International Trade Law (“UNCITRAL”),3 the
arbitration rules of the International Chamber of Commerce
International Court of Arbitration (“ICC”),4 the international
dispute resolution procedures of the International Centre for
Dispute Resolution in the American Arbitration Association
(“AAA/ICDR”),5 the arbitration rules of the London Court of
International Arbitration (“LCIA”),6 the Stockholm Chamber of
Commerce Arbitration Rules (“SCC”),7 and the newly-revised
International Bar Association Rules on the Taking of Evidence in
International Arbitration (“IBA Rules”).8 In particular, this Article
examines the extent to which the parties’ consent to arbitrate
disputes under such rules affects or limits a party’s ability to
resort to Section 1782 to seek the production of evidence for use
in arbitral proceedings and attempts to provide a framework for
analyzing this important issue.