Taking Advantage of Discovery Rules in the United States to get Documents and Information for Foreign Proceedings – Finally, the U.S. has something to offer Foreign Courts

Types : Bylined Articles

Much has been written over the past year about whether a U.S. statute, 28 U.S.C. Sec. 1782 (or just “1782”) allows parties to a foreign arbitration proceeding, in say London or Singapore, to obtain documentation and information, including testimony of witnesses, that may otherwise not be accessible through the rules of the governing arbitration rules. The courts in the U.S. were split on whether the language of “1782” allowed parties to a foreign arbitration to take advantage of the statute. While 1782 uses the language that it is applicable to a proceeding “in a foreign or international tribunal,” some courts have ruled that the intent of Congress was not to extend the U.S. law to private commercial arbitral proceedings. There was great expectation that the split in the Circuit Courts in the U.S. would be resolved by the Supreme Court when they accepted to hear a case titled Servotronics Inc., v. Rolls-Royce PLC. However, only weeks before oral argument was scheduled for October 5, the case was settled by the parties. The Supreme Court has now accepted a similar case for review of the issue, ZF Automotive, but it is not known how long it will take that case to work its way up the chain for a decision by the Court.

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