Originally from:
The Practice of International Litigation - 2nd Edition - Looseleaf
The Practice of International Litigation - 2nd Edition - Electronic
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Use of Section 1782 in Aid of International Arbitration
Lawrence W. Newman and Michael Burrows
Section 1782 of Title 28 of the U.S. Code is a powerful, but
probably much underutilized, weapon in the arsenal of those who practice
in the international litigation arena. Over the past few years, there has been
much written about whether Section 1782 may be used in connection with
an international arbitration proceeding. Recently, the International
Commercial Disputes Committee of the City Bar Association (of which the
authors are members) issued a report that analyzed this issue and
recommended a number of “best practices.” This article discusses certain
highlights of that Report.
The Background of Section 1782
First, some background. As the Report describes, the history of
Section 1782 can be traced to an 1855 statute that provided that, in
response to a letter rogatory from a foreign court, a circuit court was
authorized to “designate” a “commissioner” to “compel . . . witnesses to
appear and depose in the same manner as to appear and testify in court.”
Later, a second strand of legislation developed that authorized members of
certain “international tribunals” to issue subpoenas to compel testimony
and the production of documents.
In the late 1950s, Congress called for a complete overhaul of
Section 1782, resulting, in 1964, in a new Section 1782(a), which remains at
the heart of the current version of the statute. Section 1782 provides,
broadly speaking, that if discovery is sought in a federal district court for
use “in a proceeding in a foreign or international tribunal,” the court is
authorized to order the production of documents, as well as depositions of
witnesses, located within that court’s district. An application under Section
1782 may be brought by “an interested person” (including a party to the
foreign proceeding) and is typically made ex parte. The statute does not
require that the foreign proceeding be pending at the time of the
application.
The question has arisen as to whether an arbitral tribunal qualifies
as an “international tribunal” under Section 1782. In Nat’l Broad. Co., Inc. v.
Bear Stearns & Co., Inc., the Second Circuit answered this question in the
negative. The Fifth Circuit, in Republic of Kazahkstan v. Beidermann, reached
the same conclusion, holding that Section 1782 had been drafted to
facilitate discovery for international government-sanctioned tribunals, not
private arbitration tribunals.
Lawrence W. Newman has been a partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of 4 works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
