United States Case Law Developmentsunder 28 U.S.C. §1782 with Regard toInternational Arbitration Proceedings

Abstract

One of the most significant and well-known differences between litigation and arbitration proceedings in the United States (U.S.) and the same proceedings in many civil law traditions is discovery. With regard to its scope and methods, it is very unique. It may, however, be used by foreign litigants, outside the U.S. as well. When an arbitration proceeding abroad involves a connection to the U.S., an application for seeking evidence in the U.S. under 28 U.S.C. §1782 can be made to benefit from U.S. style discovery. 28 U.S.C. §1782 permits any party or other “interested person” involved in proceedings before a “foreign or international tribunal” to make a request to a U.S. federal district court for an order compelling discovery from a person or entity that resides or is found in the district in which the U.S. court sits. There have been two recent notable lower court developments redefining the scope of 28 U.S.C. §1782. First, the applicability of 28 U.S.C. §1782 was clarified with regard to evidence located outside the U.S., i.e., extraterritorial discovery. Then, several U.S. Courts of Appeals have rendered decisions regarding the applicability of 28 U.S.C. §1782 in private international arbitration proceedings, i.e., arbitration proceedings conducted outside of arbitration institutions, resulting in a veritable circuit split. The chapter explains the different approaches taken with regard to an interpretation of 28 U.S.C. §1782, including the filing of a writ of certiorari with the U.S. Supreme Court.