Group items tagged

Section 1782.  District court holds that Section 1782 discovery may be used in aid of private international arbitration.   In re: Application of Babcock Borsig AG for Assistance Before a Foreign Tribunal, Case No. 08-mc-10128-DPW (D. Mass. 2008) [click for opinion]

Section 1782.  District court holds that Section 1782 discovery may not be used in aid of private international arbitration.    La Comision Ejecutiva Hidroelecctrica del Rio Lempa v. El Paso Corp., 2008 U.S. Dist. LEXIS 94395 (S.D. Tex. Nov. 20, 2008) [click for opinion]

In the Summer 2007 edition of Arbitration World, we noted that, after Intel, federal courts in New Jersey (In re Oxus Gold) and Georgia (In re Roz Trading) had interpreted Section 1782 to apply to international arbitrations. Recently, courts in Minnesota, Massachusetts and Delaware have followed suit, while a court in Texas has disagreed.

Although the weight of post-Intel legal authority suggests that participants in foreign arbitrations can now successfully apply for discovery in the U.S. under Section 1782, there remains a conflict in the federal district courts. Until the scope of Section 1782 is clarified by Circuit Courts of Appeals or the United States Supreme Court, a party to foreign arbitration who hopes to discover evidence in the U.S. cannot predict with certainty whether it will meet the first requirement: a recognition of the arbitral body as a “tribunal.” However, based upon the recent trend, it is likely that this hurdle will be cleared – unless the evidence lies in Texas