December 09, 2020 Feature

I. Alternative Dispute Resolution

John Jay Range and Armando Cordoves, Jr.

A. Introduction

This report addresses whether 28 U.S.C. § 1782(a)1 permits “any interested person” to apply to an appropriate United States district court to request discovery in a contemplated or pending private arbitration conducted by a “foreign or international tribunal.” This past year, a circuit split developed between the Second and Fifth Circuits, which have held since 1999 that such discovery was not available, and the Fourth and Sixth Circuits, which have recently held that § 1782(a) permits such discovery. The only Supreme Court case addressing § 1782(a), Intel Corp. v. Advanced Micro Devices, Inc.,2 construed the statute broadly in favor of discovery. But that case arose in the context of a governmental request by a quasi-judicial governmental body of the European Commission investigating an antitrust complaint. Section 1782(a) has long been understood to authorize discovery to assist foreign courts, administrative agencies, and quasi-judicial governmental tribunals obtain evidence. Some United States district courts have disagreed as to whether court-ordered discovery under § 1782(a) is available for use in private international arbitrations between commercial parties. But, until this past year, no circuit court had sanctioned use of the statute for that purpose.

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