September 13, 2021
September 13, 2021

International Arbitration: U.S. Supreme Court Will Not Resolve Circuit Split Over Applicability of Section 1782 Discovery

By Jordyn Mitzman, Attorney At Law
By Jordyn Mitzman, Attorney At Law

U.S. discovery rules are generally more liberal and expansive than those in other countries. United States Statute 28 USC § 1782 provides a powerful tool for litigants engaged, or about to be engaged, in a foreign proceeding to utilize U.S. discovery rules to build and litigate their case.

Under Section 1782, federal district courts have the power to order individuals and entities located in the U.S. to provide “testimony or statement [including depositions] or to produce a document or other thing for use in a foreign or international tribunal.”

This statute allows foreign litigants to seek discovery of any non-privileged matter that is relevant to any party’s claim or defense.

Successful Section 1782 applicants may obtain discovery that they would not have otherwise received in the foreign forum as there is no requirement that the evidence is discoverable under the laws of the foreign court.

There is a split of authority among U.S. Circuit Courts of Appeal over the statutory meaning of “foreign or international tribunal” and whether this includes private international arbitrations.

In March of this year, the Supreme Court agreed to resolve this ongoing debate and address whether Section 1782 authorizes district courts to order discovery for use in private international arbitration. This decision would have had a significant impact on private international arbitrations.

It was recently announced that this case will no longer be proceeding. It, therefore, remains uncertain whether parties to a private arbitration located outside of the U.S. can obtain discovery under Section 1782.

Whether engaged in litigation or arbitration, it is important to know and understand what tools are available for building, negotiating, or litigating your case.

Our team of multilingual attorneys across three continents are here to advise you on international arbitration and dispute resolution matters.

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