The US courts recently confirmed in In re Roz Trading Limited 469 F. Supp. 2d 1221 (N.D. Ga., 2006) that Section 1782 of the Federal Rules of Civil procedure is available to parties in international arbitration. This allows US District Courts to grant "discovery" (known in England as disclosure) orders in support of foreign litigation proceedings.
The claimant in an arbitration in Vienna applied to the US courts under Section 1782 for discovery of documentation upon which it wished to rely. The documents were held by the parent company of the respondent, a company located in the USA, and as the parent company was not a party to the arbitration, the Tribunal could not compel production of the documents.
In order for Section 1782 to apply, the proceedings in support of which discovery is sought must be before an "international Tribunal". The US courts had previously ruled that a private arbitral Tribunal did not constitute an international Tribunal, partly on the basis that the use of Section 1782 would be prejudicial to the arbitration process.
However, in the case of Intel Corporation v. Advanced Micro Devices Inc. 542 U.S. 241 (2004), the Supreme Court considered the definition of "international Tribunal" in detail and held that where a foreign body acted as a "first-instance decision maker", it should be considered an international Tribunal. Then, in December 2006, the Eleventh Circuit District Court in In Re Roz Trading applied this reasoning to arbitral Tribunals specifically and found that they were indeed international Tribunals for the purposes of Section 1782.
For clients engaged in arbitration with a US element, Section 1782 could provide a useful and powerful tool in cases of "last resort" (such as where the discovery target falls outside the immediate jurisdiction of the Tribunal). However, engaging in lengthy discovery procedures which delay and add considerable cost to the arbitration process will rarely be in the interests of the parties, so any application under Section 1782 should be considered carefully. In particular, attention should be paid to three important criteria laid down by the Supreme Court in Intel, which stressed that Section 1782 was discretionary, would generally only be available if the target of the discovery request was a non-party to the proceedings, and should be applied with the nature of the particular foreign Tribunal and the character of the proceedings before it in mind.