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American Review of International Arbitration - ARIA - Vol. 14 No. 4 2003
American Review of International Arbitration - ARIA - (U.S. Price)
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ARIA Vol. 14 No. 4 2003
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I. INTRODUCTION
Since its revision in 1963, Section 1782 of Title 28 of the United States Code
has engaged the persistent interest of courts, practitioners and commentators. This
interest has led to conflicting decisions and views. The most recent instance is the
decision of the Ninth Circuit in Intel Corporation v. Advanced Micro Devices,
Inc.1
In this case, Advanced Micro Devices, Inc. (AMD), a U.S. based corporation,
filed with the European Union Commission a complaint alleging violation of
European Union antitrust rules by Intel, also a U.S. based corporation. Relying on
Section 1782, AMD then sought evidence located in the United States relating to
the conduct complained of. This request raised the following issues: (1) is AMD
an “interested person” in the sense of Section 1782; (2) are the proceedings before
the E.U. Commission proceedings before “a foreign or international tribunal;” (3)
must the information sought be discoverable or admissible under the law of the
foreign or international tribunal; and (4) should the district court, in exercising the
discretion given by Section 1782, grant the request?2
Hans Smit - Stanley H. Fuld Professor of Law, and Director, Center for International Arbitration
and Litigation Law, Columbia University. The author provided the text of this article to
counsel in the Intel v. AMD case before they delivered their oral arguments before the
Supreme Court. Regrettably, he did not manage to have it published before the Supreme
Court rendered its decision. It is now published with a Postscript that identifies to what
extent the Supreme Court has now definitely settled questions that Section 1782, despite
its clear text, has raised. The author gratefully acknowledges the assistance rendered by
Christos Ravanides, LL.M 2004, J.D. class 2006, Columbia Law School.
