Discovery, Arbitration, and 28 U.S.C. §1782: Rules or Standards?
Files
Description
This chapter assesses whether 28 USC § 1782, which provides for US judicial assistance to obtain evidence for use in foreign or international proceedings, extends to investor-state and/or private commercial arbitral tribunals. The first (and only) Supreme Court interpretation of § 1782 came in 2004 in Intel Corp v Advanced Micro Devices, Inc. Intel involved an application by AMD, a US company, seeking discovery from Intel, another US company, in connection with a complaint that AMD had filed against Intel in the European Commission, alleging a violation of European competition law. An initial question before the district court was whether the Directorate General for Competition that was undertaking the initial investigation was a ‘tribunal’ at all so as to fall within § 1782. A second question was whether a ‘foreign-discoverability or admissibility’ rule should be imposed as a prerequisite to issuing an order to obtain information. In the aftermath of the Supreme Court’s decision in Intel, numerous commentators read the Court’s opinion to suggest that private arbitral tribunals are indeed within the scope of § 1782. The chapter then draws some comparisons with practice in the United Kingdom, looking at § 7 of the Federal Arbitration Act and the 1996 English Arbitration Act.
Source Publication
Essays in International Litigation for Lord Collins
Source Editors/Authors
Jonathan Harris, Campbell McLachlan
Publication Date
2022
Recommended Citation
Silberman, Linda J., "Discovery, Arbitration, and 28 U.S.C. §1782: Rules or Standards?" (2022). Faculty Chapters. 1414.
https://gretchen.law.nyu.edu/fac-chapt/1414
