Originally from Dispute Resolution Journal

The United States provides potentially broad access to U.S. discovery procedures to interested persons who seek evidence for use in a proceeding before a foreign or international legal tribunal. The statute in question, 28 U.S.C. § 1782, can thus be a powerful evidence gathering tool for foreign litigants, including parties to international arbitrations. However, there are significant questions about the availability of the statute in international arbitration cases, particularly in private commercial arbitrations. Indeed, in light of two recent appellate decisions, the applicability of the statute to private commercial arbitrations is less clear than ever. In this article, we review the necessary conditions to application of the statute and the discretionary factors that courts consider when deciding whether to grant an application for discovery in aid of foreign proceedings. We focus particularly on current debates of interest in connection with international arbitration: is a private international arbitration a “proceeding” for purposes of the statute? May a party to an arbitration invoke the statute without the approval of the tribunal? In short, we present the statute as a powerful and flexible tool for parties in international arbitrations, but we note the serious questions about its applicability to arbitration and the need for the tribunal’s approval.