Yes We Can: The Door Opens in the Second Circuit to Discovery in Aid of International Commercial Arbitration
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A Federal court in New York recently opened the door there for U.S.-style discovery of evidence in aid of foreign or international commercial arbitrations, in accordance with a unique American statute – 28 United States Code (“U.S.C.”) § 1782.
When 28 U.S.C. § 1782 was enacted in 1948 (and amended slightly in 1949), it was intended to set an example for international judicial cooperation in a world where international trade was recovering from the effects of World War II and the United States was the dominant exporter in many areas. With this statute, the United States made available its Federal courts for discovery in aid of foreign judicial proceedings. And unlike virtually all provisions elsewhere for cross-border judicial cooperation, there was no reciprocity requirement in this statute. The U.S. courts were made available for document and deposition discovery in the U.S., insofar as provided in the statute, notwithstanding that a requesting party might be a citizen or domiciliary of a country, or might be litigating in a country, that did not offer the same to U.S. citizens or domiciliaries. The U.S. hoped to inspire other countries to be as generous and cooperative. (That quest appears to be, at best, a work in progress.)
In 1964, Section 1782 was amended to provide that that U.S. judicial assistance would be made available in connection with “a proceeding in a foreign or international tribunal,” rather than in connection with “any judicial proceeding pending in any court in a foreign country,” as the statute originally read. Subsection “a” of the statute now provides in pertinent part that
“The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal…. The order may be made… upon the application of any interested person…. To the extent the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with Federal Rules of Civil Procedure.”
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