Originally from European International Arbitration Review (EIAR)

The article from Karl Hennessee, which follows this commentary, is an essential article to read for European arbitrators and arbitration counsel, both in-house and outside.

Actually, the dilemma surrounding the application of 28 USC 1782, which is so well described by the author, may not be sufficiently appreciated by European arbitrators and counsel, which may look at it as an “American” problem, foreign to the European arbitration culture.

It is true that the issues raised by the author are rooted in a common law system, while the civil law jurisdictions offer different solutions to them. However, it is equally true that the problem is not only “American”, as many arbitrators and counsel on this side of the Atlantic have certainly been involved in arbitrations between US companies and European opponents and can, thus, use 28 USC 1782 within the limits and with the problems described by the author.

The author, with the support of a rich and sometimes ambivalent case law, first qualifies as a “myth” the difference between litigation and arbitration and, then, concludes that there is room for both litigation focused and arbitration-oriented lawyers to make their case as to whether or not 28 USC 1782 should be used.

There is a lot to learn from this article. Its author does not try to teach a lesson to arbitration practitioners, as one could be tempted to do. He simply draws the attention of the practitioners to the dilemma, as he calls it. There is little for me to comment on this article, as it deals with an issue with which I, admittedly, was only vaguely familiar before reading it. I wish only to observe that 28 USC 1782 is substantially about document production. I think, then, that it might be useful to make certain general observations about the way the document production process, with its related pitfalls, is generally perceived among European international arbitration practitioners, because such perception will undoubtedly have a bearing on how members of the European arbitration community could possibly react, when faced with the dilemma as to whether or not to use 28 USC 1782, should one of the parties be based in the US. I will only make considerations drawn from my personal experience. As the author of the article, I do not mean to teach lessons to anyone.