US Courts Divided About Obligation to Provide Foreign Arbitrations with the Benefit of US Discovery Instruments. Will London Find the American Cupboard Bare?

Types : Bylined Articles

28 USC §1782 is a US statute that allows foreign parties to a totally foreign court proceeding to access U.S. courts with the purpose of obtaining evidence located in the United States that can assist the proceeding abroad. Given the broad scope of discovery tools allowed under US procedural law, this statutory provision can offer great benefit to the parties that decide to take advantage of this instrument, regardless of where they are located in the world, as long as the evidence they are seeking to gather is located within the US.

While this process of gathering evidence is routinely accepted for evidence sought in aid to a foreign court proceeding, US courts have traditionally resisted the idea that US style discovery could be compelled when the requesting parties were foreign arbitral tribunals, or parties to said arbitral proceedings. Following the U.S. Supreme Court decision in the Intel case, however, the tide seems to have changed with respect to the interpretation of 28 USC §1782.1 As will be described more in detail below, we might very well be on the eve of a historical pivot regarding the effectiveness of discovery tools available to parties to foreign arbitration, and US courts might soon become the best friends to parties to arbitration proceedings all around the world.

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