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

Preview Page

The United States provides potentially broad access to U.S. discovery procedures to interested persons who seek evidence for use in a proceeding before a foreign or international legal tribunal. The statute in question, 28 U.S.C. § 1782, can thus be a powerful evidence gathering tool for foreign litigants, including parties to international arbitrations. However, there are significant questions about the availability of the statute in international arbitration cases, particularly in private commercial arbitrations. Indeed, in light of two recent appellate decisions, the applicability of the statute to private commercial arbitrations is less clear than ever. In this article, we review the necessary conditions to application of the statute and the discretionary factors that courts consider when deciding whether to grant an application for discovery in aid of foreign proceedings. We focus particularly on current debates of interest in connection with international arbitration: is a private international arbitration a “proceeding” for purposes of the statute? May a party to an arbitration invoke the statute without the approval of the tribunal? In short, we present the statute as a powerful and flexible tool for parties in international arbitrations, but we note the serious questions about its applicability to arbitration and the need for the tribunal’s approval.

I.    The Statute

Section 1782(a) provides:

The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.