Part VI Discovery and Document Production, 16 Discovery in Arbitration: Can Parties Use 28 USC § 1782 to Circumvent the Process Ordered by the Arbitral Tribunal?

Subject(s):

Jurisdiction — Arbitrators — Claims — Recognition and enforcement — International courts and tribunals, procedure

This chapter focuses on Section 1782 of Title 28 of the United States Code (USC). One of the stated purposes of 28 USC § 1782 (‘section 1782’) is to provide ‘judicial assistance to foreign or international tribunals’. However, the profound differences between the broad form of discovery available under section 1782 and the narrow form of discovery generally available in international arbitration may create the possibility of conflicts between the process envisioned by the arbitral tribunal and the process made available to parties by the US judiciary. It argues that section 1782 is subject to a strong presumption in favour of discovery. When a foreign litigant wants discovery, but the foreign tribunal may not, courts typically err on the side of the foreign litigant.