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Oliver L. Knöfel, Journal of Private International Law, Volume 5, Number 2, August 2009, pp. 281-309 Abstract: Until today, a variety of mechanisms of State courts assisting foreign arbitral tribunals in the taking of evidence has been developed in international legal practice. Unfortunately, none of the legal avenues nowadays available to arbitrators presents a coherent or convincing picture. One has to explore a wealth of diverse and scattered sources when an arbitral tribunal needs or wishes to obtain evidence abroad. What is more, it is often considered excessive to oblige a State to lend assistance to arbitral proceedings held outside its own territory. In 2004, however, the US Supreme Court decided to examine the concept of "tribunal" as used in 28 U.S.C. section 1782 under a functional lens. In the wake of this decision several US District Courts have been reading section 1782 to authorise subpoenas in aid of foreign arbitrations. The new US jurisprudence offers a unique opportunity to reinvent the US-German relationship under the Hague Evidence Convention of 1970. This article aims at broadening the scope of international judicial assistance in its entirety. The plan is to begin by exploring the legal avenues by which arbitral panels can obtain evidence abroad and seek judicial assistance of foreign States' courts de lege lata. Then the impact of the newly established, arbitration-friendly US case-law on judicial assistance as granted under 28 U.S.C. section 1782 will be studied. Finally, the new US jurisprudence will be used as the basis to argue for a different attitude towards arbitration proceedings than that now prevailing under the Hague Evidence Convention of 1970 and under the European Evidence Regulation of 2001. Both instruments should be interpreted to encompass international arbitral tribunals.

Note by Gary Born (WilmerHale) on Application of Winning (HK) Shipping Co. Ltd., 2010 WL 1796579 (S.D. Fla. Apr. 30, 2010)

Fulbright & Jaworski LLP. Abstract: "Some parties to international arbitration proceedings have recently applied to courts in the US pursuant to § 1782 of Title 28 of the US Code to obtain discovery in "aid" of arbitration. The following discussion briefly addresses section 1782 and its applicability in international arbitration proceedings, issues that might arise as a result of section 1782 filings made in international arbitrations and ways to alleviate these issues."

Note on El Paso Corporation v. La Comision Ejecutiva, No. 08-20771 (5th Cir. Aug. 6, 2009) where the United States Court of Appeals for the Fifth Circuit held that section 1782 does not apply for a discovery motion for use in a private international arbitration (arbitration in Geneva under the UNCITRAL Arb. Rules)

Note on El Paso Corporation v. La Comision Ejecutiva, No. 08-20771 (5th Cir. Aug. 6, 2009) in which the United States Court of Appeals for the Fifth Circuit held that section 1782 does not apply for a discovery motion for use in a private international arbitration (arbitration in Geneva under the UNCITRAL Arb. Rules)

In re an Arbitration in London, England between Northfolk Southern Corp. et al v. ACE Bermuda LTD (Northern District Ill., June 15, 2009). -- With link to fulltext PDF of the decision

March 17, 2009 - Daniel Schimmel (Partner) and Melissa E. Byroade (Associate) for Kelley Drye; PDF download (Manuskript); Publikation in: International Arbitration 2009, Volume 1, published by the Practising Law Institute "The chapter focuses on Section 1782 of Title 28 of the United States Code and international arbitration. It addresses the questions: "First, do international arbitration tribunals with a foreign situs constitute 'foreign tribunals' within the meaning of § 1782?.... Second, is § 1782 actually helpful to international arbitration?" The authors also discuss the Intel Corp. v. Advanced Micro Devices, Inc. case and its impact on subsequent decisions regarding "foreign discoverability" requirements."

Mealey's International Arbitration Report, Volume 24, Issue 8, August 2009, p. 8 -- ORLANDO, Fla. - A Florida federal judge on Aug. 4 refused to adopt a portion of a magistrate judge's recommendation that the court order discovery for use in an arbitration proceeding over franchise rights in Mexico, finding that the private arbitral panel did not qualify as a foreign or international tribunal under 28 U.S. Code Section 1782 (In re: Application of Operadora DB Mexico S.A. DE C.V., No. 6:09-cv-383-Orl-22GJK, M.D. Fla.; 2009 U.S. Dist. LEXIS 68091)

by Abram I. Moore - short notes on Hallmark Capital, Babcock Borsig and the two decisions in Comision Ejecutiva (Delaware and Texas)

Marks & Sokolov Article | United States Law Office Philadelphia Pennsylvania | Russian Law Office Moscow | Ukraine Law Office Kyiv

"In In Re Rhodianyl S.A.S. and Rhodia Operations S.A.S., No. 11-1026-JTM, 2011 U.S. Dist. LEXIS 72918 (D. Kan. March 25, 2011), the District of Kansas held that 28 U.S.C. § 1782 ("Section 1782") could not be used to seek discovery from a party to a foreign international arbitration. In its key holding, the court found that a purely private international arbitral tribunal did not constitute a "tribunal" within the meaning of Section 1782."

"The gathering of evidence is a key element in legal proceedings. Contrary to the regulations in Switzerland, the US legal order allows for pre-trial discovery, i.e. the parties are entrusted with the collecting of evidence at an early stage. This diverging approach becomes relevant in civil proceedings or arbitral proceedings in Switzerland with a linkage to the USA. The question arises if and how parties may profit from the US-American discovery procedure. This paper wants to answer the question by examining the use of evidence gathered in US-American discovery in international proceedings before Swiss courts as well as arbitral tribunals located in Switzerland. Part one concentrates on the possibilities and limitations of legal assistance pursuant to 28 U.S.C. § 1782. In part two the utilization of evidence collected in discovery procedure in Switzerland, in the event of a party seeking legal assistance individually, is evaluated. Thereby, special consideration is given to the Hague Evidence Convention and the Swiss ordre public. The paper concludes with a short summary of the author's findings and rationalizations why evidence collected in discovery proceedings should be admitted."

"Affirming for the first time that section 1782 applications extend to treaty arbitrations, a New York court has allowed Chevron to access 600 hours of unreleased footage from a 2009 documentary film, to be used as evidence in an arbitration with Ecuador and other legal proceedings."

The Fifth Circuit U. S. Court of Appeals last week reaffirmed its position that 28 U. S. C. 1782, which provides for federal assistance in obtaining discovery for use in foreign and international tribunals, does not apply to private commercial arbitration tribunals. El Paso Corp. v. La Comision Ejecutiva Hidroelectrica del Rio Lempa, 2009 U. S. App. LEXIS 17596 (5th Cir. Aug. 6, 2009).

by Abram I. Moore (Chicago) - Note on El Paso Corp. v. La Comision Ejecutiva Hidroelectrica Del Rio Lempa (5th Cir. Aug 6, 2009) and the two district court decisions in In re: Application of Operadora DB Mexico, S.A. de C. V. (Fla.) and In re An Arbitration in London, England (Ill.)

"In a number of recent rulings, US courts have interpreted the scope of 28 U.S.C. s. 1782 (...). These rulings, which all resulted in dismissing s.1782 applications, may suggest a growing trend towards narrowly interpreting the statute."

In re Application of Caratube, 10-0285 (D.D.C. 2010) [730 F.Supp. 2d 101]

"Recent decisions on section 1782 could put US companies at a disadvantage in international arbitration." - Short overview of case law from Intel to Roz Trading.