U.S. Discovery and Foreign Private Arbitration: The Foreign Lawyer’s Perspective

Abstract

For many years U.S. case law has effectively ruled out judicial assistance in the taking of evidence for foreign private arbitration according to 28 U.S.C. section 1782. In 2004, however, the U.S. Supreme Court ruled that section 1782 applies to all foreign and international tribunals if they act as adjudicatory bodies. In the wake of this decision two district courts granted discovery orders in aid of foreign arbitration proceedings. After these judgments concerns were raised in the United States that the application of section 1782 to foreign private arbitration would lead to a procedural disparity between U.S. parties and non–U.S. parties, since for U.S. parties the access to information and evidence in foreign countries is usually much more limited than in the United States. This article demonstrates that these fears are unfounded. It shows that a flexible and well–balanced application of section 1782 to private international arbitration in line with the U.S. Supreme Court’s interpretation and strong policy considerations does not affect the discovery dynamics of international arbitration. To the contrary, it is the only mechanism to grant access to evidence located in the United States, thus ensuring the procedural equality in the taking of evidence in international arbitration.