Using Section 1782 In International Arbitration

Abstract

This article is about a United States statute, 28 U.S.C. § 1782, that governs the taking of evidence located in the United States (e.g. documents, witnesstestimony) for use in proceedings in other countries. It has been regularly relied upon for the taking of evidence for use in actual or contemplated litigation outside of the United States. However, until recently, it had been settled for many years that section 1782 did not apply to the taking of evidence in the United States for use in an arbitration proceeding. That all changed when, a few months ago, a U.S. Court held that section 1782 could be used to take evidence for use in an international arbitration proceeding in Austria. This decision, if adopted by other courts, could potentially impact arbitration proceedings anywhere in the world, by giving parties to those proceedings the opportunity to take evidence in the United States. This article sets forth the key elements of section 1782, outlines what practitioners in the field of international arbitration need to know about it in order to advise their clients, and discusses whether the use of section 1782 in international arbitration is a good or bad development for the field.