Originally from The Law and Practice of International Arbitration: Essays in Honor of John Fellas – Preview Page

The steady growth of international economic activity over the past decades has firmly established international arbitration as one of the leading methods for resolving cross-border disputes. A crucial element of any effective dispute resolution mechanism is its capacity to secure and access relevant evidence. However, when evidence is located in a jurisdiction different from the arbitral seat, or is held by third parties unwilling to cooperate, parties can face significant procedural hurdles.  

This essay examines and contrasts the legal frameworks for obtaining evidence in two key jurisdictions—the United States and the Netherlands—in support of international arbitration proceedings seated elsewhere.2 While both the United States and the Netherlands are significant players in international trade and arbitration, their respective approaches to how their national courts can and should assist in gathering evidence for use in foreign arbitrations have evolved differently and currently present distinct opportunities and challenges. 

By comparing these two jurisdictions, this essay aims to provide a brief overview of the frameworks that apply when parties seek to obtain evidence in the United States or the Netherlands in support of foreign arbitration proceedings. 

Section II of this essay will touch upon the regime for obtaining evidence in the United States, focusing on the historical application and recent limitations of Section 1782 of Title 28 of the United States Code (“Section 1782”), as well as potential alternative mechanisms. Section III will then outline the applicable legal landscape in the Netherlands, setting out the provisions of the Dutch Arbitration Act that permit court assistance for foreign arbitrations (Articles 1074a through 1074d Dutch Code of Civil Procedure (“DCCP”))3 and discussing the tools provided for in the new Dutch evidence law on civil proceedings, which entered into force on 1 January 2025. Finally, Section IV will offer some concluding remarks, summarizing the key distinctions between the two jurisdictions.