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Williams Industrial Services, LLC v. Steel Equipment Corp., CA NO: 2:08-MC-179-AJS (W.D. Pa. June 24, 2008).

III. The Application of §1782 to Private International Arbitration

Subsequent to the Supreme Court’s decision in Intel, various courts have granted §1782 discovery in aid of private arbitral matters. In In re Hallmark Capital Corp., the court granted discovery for use in a private Israeli arbitration proceeding. By its Order dated September 13, 2007 denying the discovery target’s motion for reconsideration, the court bypassed National Broadcasting by relying upon Intel’s rejection of restrictive definitional exclusions.39 In In re Application Roz Trading, the court granted an application requesting the production of documents for use before an arbitral panel of the International Arbitral Centre of the Austrian Federal Economic Chamber in Vienna.40 In Williams Industrial Services, LLC v. Steel Equipment Corp., in the absence of opposition the court granted document discovery for use in a private arbitration matter before the International Chamber of Commerce in Paris, France.41

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