Discovery Under § 1782 in International Commercial Arbitration: Recent Developments From A ‎Comparative Perspective

Abstract

Title 28 U.S.C. § 1782 empowers American federal courts to order persons in the United States ‎to give testimony or to produce documents “for use in a proceeding in a foreign or international ‎tribunal.” However, disagreement persists, both in the courts and among commentators, as to ‎whether the phrase “international tribunal” in § 1782 includes “private” international commercial ‎arbitral tribunals, and the issue is now before the United States Supreme Court. The circuit split ‎that has emerged in this regard and the lack of a uniform approach across the United States have ‎created uncertainty and unpredictability in international commercial arbitration practice, which ‎are not conducive to orderly international commercial transactions and dispute resolution. In this ‎article, I approach the debate from a comparative perspective that has thus far been underutilized ‎in the literature. Given that one of the main purposes of § 1782 is to promote comity and ‎cooperation among nations, I undertake a detailed examination of recent jurisprudential and ‎legislative developments in two jurisdictions — the United Kingdom and New Zealand — with ‎respect to judicial assistance in the taking of evidence from persons located in their territory for ‎use in private international commercial arbitration. Notwithstanding differences in their general ‎approach to discovery, these, and other, jurisdictions are increasingly allowing for such judicial ‎assistance. Therefore, I argue that American courts should similarly interpret § 1782 to allow, in ‎principle, discovery in relation to private international commercial arbitrations. Courts should ‎then exercise their discretion in enforcing the provision in accordance with clear and uniform ‎criteria that will promote the goals of both § 1782 and international commercial arbitration and ‎prevent abuse and unnecessary judicial intervention. ‎