Section 1782 of the U.S. Code of Civil Procedure (the “Code”) allows district courts in the U.S. to assist foreign and international tribunals with disclosure and evidence-gathering.
Section 1782(a) provides that a district court may order any person within its district to:
- give his testimony or statement to; or
- produce a document or other thing for use in a proceedings before,
- a foreign or international tribunal. Such an order may be made pursuant to a letter rogatory or a request by a foreign or international tribunal, or upon application of any interested person.
Potential advantages of section 1782
If section 1782 of the Code extended to private international arbitration panels, parties to such proceedings could go beyond the usual procedural parameters of evidence-gathering in arbitration proceedings. In particular, using section 1782 in international arbitration would offer three advantages over the normal proceedings:
It would empower U.S. courts to compel persons located in their district to produce evidence to be used in an arbitration having its seat outside the jurisdiction in which they are competent. This is in stark contrast to the typical intervention of domestic courts in arbitration proceedings; intervention by domestic courts is usually restricted to arbitration proceedings taking place within the jurisdiction of that court.
An application could be made without the applicant first needing to obtain an order from the tribunal. This contrasts with most international arbitration statutes and rules which provide that the arbitral tribunal determines whether or not there is to be pre-hearing disclosure.
The person in possession of the evidence sought could be either a party or a non-party to the arbitration proceedings. This means that, even though an individual does not accept an arbitration panel’s authority, he could still be compelled to assist with evidence-gathering in an international arbitration. Considering the contractual nature of arbitration – which usually means that arbitration panels only have powers towards the parties to the arbitration agreement – the prospect of using section 1782 in international arbitration could have significant practical consequences.
Indeed, international disputes frequently involve third parties who are in possession of evidence potentially relevant to the case. By way of example, consider:
- a broker in a dispute between an insurer and an insured;
- a parent corporation in a dispute involving one of its subsidiaries;
- a supplier of one party to a dispute over a sale or construction contract;
- a sub-contractor of one party to a dispute;
- a carrier of the goods in a dispute over a sale contract.
The key question is whether international arbitration panels are foreign tribunals within the meaning of section 1782. The controversy around this question, which has endured for several decades, might be settled in the near future.
1. The pre-Intel case law: U.S.Courts resisting the application of section 1782
Until Intel Corp. v. Advanced Micro Devices, Inc. in 2004, most U.S. courts refused to extend the scope of section 1782 to international arbitration, relying upon various different arguments. In In Re Application of Technostroyexport, the District Court for the Southern District of New York dismissed a discovery application based on section 1782 because of the absence of the arbitral tribunal’s consent. That said, the Court did find that arbitration panels were foreign tribunals for the purposes of section 1782 (although it did not cite any authority supporting this view).
Three years later, in Medway Power Limited v. TBV Power Ltd and Marubeni Europower Ltd, the same District Court refused to hold its decision in In Re Application of Technostroyexportas a binding precedent. Instead, the District Court relied on the legislative history behind section 1782 to conclude that it was intended to exclude private international arbitration. Moreover, in that case, the Court indicated that it did not have the power to compel non-parties to the arbitration proceedings; raising concerns whether extending discovery mechanisms to non-parties was consistent with the contractual nature of arbitration. In the Court’s view, any powers to compel non-parties to assist in arbitration proceedings was limited to the domestic courts of the jurisdiction where the arbitration has its seat.
InRepublic of Kazakhstan v. Biederman Int'l,and, shortly before, inNat’l Broadcasting Co. v. Bear Stearns & Co., the Fifth and Second Circuits interpreted section 1782 in a way so as to exclude arbitration. The Fifth and Second Circuits relied upon three main arguments.
First, arbitral tribunals should not be considered “foreign tribunals” within the meaning of the statute as this would result in a conflict between section 1782 of the Code and section 7 of the Federal Arbitration Act (“FAA”) which deals with arbitrations in the United States. Indeed, in contrast to section 1782 of the Code, section 7 of the FAA only enables arbitrators – as opposed to “any interested person” – to file petitions, and only permits a panel’s non-party discovery order to be enforced by the district court of the district in which the panel sits.
Second, the term “tribunal” was considered ambiguous and the courts, therefore, construed the term in light of the legislative history and, in particular, the 1933 and 1964 enactments of the Code. According to these two courts, the legislative history demonstrated the intention of Congress to confine the scope of section 1782 to tribunals established by governments.
Third, making the discovery process available to international arbitration would thwart its efficiency and cost-effectiveness, placing it at odds with the U.S. federal policy favouring arbitration.
2. The Intel decision: paving the way to extend the scope of section 1782
In the Intel case, whilst the Supreme Court applied a broad construction to section 1782, it did not specifically state whether arbitral tribunals were included by the statute.
Relying upon the 1964 amendment, the Court held that “Congress understood that change to provide the possibility of U.S.judicial assistance in connection with administrative and quasi-judicial proceedings.” The Court then concluded that the Directorate-General of Competition for the Commission of the European Communities (the “Directorate-General”), in its capacity as the European Union’s antitrust law enforcer, is a tribunal within the statute’s meaning as it:
- is a “first-instance decision maker”; which
- issues decisions “both responsive to the complaint and reviewable in court”.
In response to the arguments that a broad interpretation of the provision would conflict with the FAA, the Supreme Court added that, as the provision is meant to assist foreign tribunals, there is no need to engage in comparative analysis to assess whether or not there are equivalent domestic proceedings.
Furthermore, the Supreme Court gave guidance on the following issues. The expression “interested person” not only covers litigants but also any interested person within any fair construction of that term. The proceedings in which the evidence is intended to be used need not be pending or imminent, but only “in reasonable contemplation”. The district courts are authorised but not required to provide judicial assistance to a foreign tribunal.
Finally, the Court concluded that “foreign-discoverability” conditions should not be imposed upon the district courts’ discretion. Such a requirement had previously been applied in lower court cases and the Court’s ruling means that district courts can now order production of documents which are not subject to discovery under the law of the jurisdiction where the arbitration has its seat.
3. The post-Intel case law: uncertain development?
Since the Intel case, two cases have been decided on the basis that section 1782 applies to international arbitral tribunals.
In In re Oxus Gold PLC, the District Court affirmed the ruling granting the discovery application made by the claimant in an arbitration conducted pursuant to a bilateral investment treaty (“BIT”). The Court relied on the distinction between private commercial arbitrations and BIT arbitrations, where the investors’ right to arbitrate stems from the agreement between the two signing states. The Court therefore held that as the proceedings at stake were conducted within a framework defined by two nations and was governed by the UNCITRAL Arbitration Rules (Arbitration Rules of the United Nations Commission on International Trade Law), the arbitration panel constituted a “foreign tribunal” for the purposes of section 1782 of the Code.
In Re Application Roz Trading Ltd.went further than In re Oxus Gold PLC. In the former, the District Court for the Northern District of Georgia specifically addressed international private arbitration, as opposed to BIT arbitration. The Court held that like the Directorate-Generalin Intel, the international arbitral panel in In Re Application Roz Trading Ltd.was a “first-instance decision maker(s)” issuing decisions “both responsive to the complaint and reviewable in court”. Furthermore, the Court confirmed that, contrary to the case law position before the Inteldecision, the term “tribunal” was unambiguous and must therefore be understood by reference to its common usage. It quoted authorities according to which the common usage and widely accepted definition of “tribunal” include arbitral bodies.
After the Second and Fifth Circuits, the Eleventh Circuit will pronounce on the availability of U.S.discovery for use in foreign private arbitration proceedings. Any argument that U.S.-style discovery is inconsistent with the benefits and principles of arbitration is increasingly untenable. It is now broadly recognised – even among civil law lawyers – that disclosure is common practice in international arbitration.
This does not, however, answer the concerns voiced by the legal community that abuse of this statute could lead to arbitration becoming more like conventional litigation and losing some of its attraction as a quick and, sometimes, more proportional method of dispute resolution.
In any event, international traders – whether U.S. or not – now need to be aware of the way in which U.S. courts may assist the arbitration process. Parties concerned about evidence located in the United States should consider section 1782 when considering which seat of arbitration they elect in any arbitration agreements to which they are party.