Does a Private International Arbitration Fall Within "Foreign or International Tribunal" in 28 U.S.C. І 1782? - Part 2, Chapter 7 - AAA Yearbook on Arbitration and the Law - 23rd Edition
Dana C. MacGrath is Senior Counsel in the litigation and international arbitration group of Allen & Overy LLP in New York. She represents clients in international commercial arbitrations under various arbitration rules and subject to different substantive and procedural laws. Dana also has served as an arbitrator in ICC arbitrations. Her experience covers industries such as oil and gas, telecommunications, finance and joint ventures. Dana represents parties in litigation regarding the enforceability of arbitration agreements and arbitral awards under the New York Convention, disputes regarding forum selection and choice of law clauses, sovereign immunity and discovery in the international context. Dana is “[p]raised by both clients and peers for ‘her high-quality legal advice and commitment to clients.’” Chambers USA 2010. She teaches a seminar on International Commercial Arbitration at Brooklyn Law School and coaches the Brooklyn Vis Moot team. Dana received her J.D. from New York University School of Law.
E. Rainbow Willard is an Attorney in the Litigation and International Arbitration Group of Allen & Overy LLP in New York. Her practice focuses on representation of parties in international commercial arbitrations and in U.S. court proceedings. Rainbow is fluent in Spanish and Kaqchikel Maya and has lived and worked in Guatemala and Mexico. Rainbow obtained her law degree, with high honors, from Emory University School of Law. During law school, she spent a semester studying international and Mexican law at the Universidad Panamericana in Mexico City. Prior to law school, Rainbow received a Master’s in Linguistics from the University of California, Berkeley.
Parties to an international arbitration outside the United States may want to seek court assistance to obtain documents and/or testimony from witnesses within the United States pursuant to 28 U.S.C. § 1782. Section 1782 authorizes a district court to order a person to "give his testimony" or "produce a document" for "use in a proceeding in a foreign or international tribunal."1 There has been a long-standing debate as to proceedings. The debate over the scope of Section 1782 has centered on the interpretation of the term "tribunal" in the statute.
Prior to the 2004 Supreme Court decision in Intel Corp. v. Advanced Micro Devices, Inc.,2 the Second and Fifth Circuits had decided that private international arbitration did not fall within the statute’s definition of "tribunal."3 District courts across the country followed suit. Then, in 2004, the Supreme Court considered the application of Section 1782 to a proceeding under the Directorate-General for Competition of the European Commission ("DG-Competition"), an antitrust enforcement body of the European Union.4 The Supreme Court discussed the meaning of "tribunal" in Section 1782 extensively, and concluded that the proceeding under the European competition body fell within the meaning of the term. While Intel did not specifically consider whether a private international arbitration fell within the definition of "tribunal" under Section 1782, commentators urging a broader reading of "tribunal" were optimistic that Intel would expand judicial interpretation of Section 1782.