Solving the (Section) 1782 Puzzle: Bringing Certainty to the Debate over 28 U.S.C. (Section) 1782'S Application to International Arbitration. - Stanford Journal of International Law

Solving the (Section) 1782 Puzzle: Bringing Certainty to the Debate over 28 U.S.C. (Section) 1782'S Application to International Arbitration.

By Stanford Journal of International Law

  • Release Date - Published: 2011-01-01
  • Book Genre: Law
  • Author: Stanford Journal of International Law
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Solving the (Section) 1782 Puzzle: Bringing Certainty to the Debate over 28 U.S.C. (Section) 1782'S Application to International Arbitration. Stanford Journal of International Law read online review & book description:

Much attention has been devoted during the past several years to whether 28 U.S.C. [section] 1782--a statute authorizing US. federal courts to compel discovery in connection with foreign proceedings--applies to foreign arbitral proceedings. Following the U.X Supreme Court's broad interpretation of 28 U.S C. [section] 1782 in 2004 in Intel v. Advanced Micro Devices, Inc., the extension of[section] 1782 's scope to foreign arbitral proceedings has become one of the most hotly debated topics in the field of private international law, with scholars predicting a surge in requests for assistance under [section] 1782 and bemoaning the deleterious effects of importing American-style discovery into international arbitral proceedings. Paradoxically, however, relatively few requests for disclosure have been made under [section] 1782 in connection with foreign arbitral proceedings since the Supreme Court decided Intel, and courts confronted with such requests after Intel have reached different conclusions on whether, and how, [section] 1782 should be extended to foreign arbitral proceedings. This article seeks to bring certainty to the debate by offering a normative theory for how courts should apply [section] 1782 in the future in connection with foreign arbitral proceedings. According to this theory, U.S. courts can provide assistance under [section] 1782 in connection with foreign arbitral proceedings, but only in light of: (1) the specific guidelines enumerated by the Supreme Court in Intel; (2) the Supreme Court's strong pro-arbitration stance; and (3) parties' arbitration agreements. These factors compel granting [section] 1782 requests only under limited circumstances, most importantly only if arbitrators' control over the taking of evidence is preserved and the integrity of the arbitral process is maintained. It follows from this normative theory that [section] 1782 should play an important but limited role in international arbitration--a role that gives meaningful and targeted assistance to the fact- finding of foreign arbitral tribunals rather than applying American-style discovery in an arena where such methods are neither productive nor welcome.

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