November 24, 2020 Articles

Seventh Circuit Joins Second and Fifth in Holding No U.S. Discovery in Aid of International Commercial Arbitration

The ruling creates a minority view out of the Fourth and Sixth Circuits’ opposite holding, further necessitating Supreme Court review of the issue.

By J. Joan Hon

Compared with the U.S., most jurisdictions abroad permit very limited discovery in their dispute resolution processes, therefore making 28 U.S.C. § 1782 a unique and potentially powerful tool when there is a U.S. angle in an overseas proceeding. Since fall 2019, a number of circuit courts have had an opportunity to examine the specific question as to whether section 1782 applies to international commercial arbitrations, resulting in an even split of opinion between the Second and Fifth Circuits, holding in the negative, and the Fourth and Sixth Circuits, holding the opposite view. We previously reviewed these decisions at length in the Summer 2020 issue of Alternative Dispute Resolution in Sunu M. Pilai’s “What Is a “Tribunal”? Circuit Courts Disagree.”

Premium Content For:
  • Litigation Section
Join - Now