Author: Anna Conley*
Published: October 2007
Judicial Assistance in Procedural Matters
Practice and Procedure
Prior to 2004, federal courts were in agreement that international arbitral tribunals did not fall within the ambit of 28 U.S.C. §1782 (“§1782”), the statute dealing with judicial assistance to foreign tribunals and litigants. Instead, U.S. judicial assistance to arbitral tribunals was governed solely by the Federal Arbitration Act (“FAA”),1 and applicable state arbitration statutes. In 2004, the Supreme Court decided Intel v. Advanced Micro Devices,2 broadly interpreting nearly every aspect of §1782. Intel held that parties before foreign tribunals could request information that is not discoverable pursuant to the rules of the foreign jurisdiction, as well as information that is not discoverable in similar U.S. proceedings. Intel also held that parties may request information even if a foreign proceeding is not yet pending or even imminent. Although Intel did not address whether arbitral tribunals are entitled to judicial assistance pursuant to §1782, many scholars have suggested that Intel’s expansive interpretation of the statute supports a reading of §1782 to include international arbitral tribunals.
At the end of 2006, two district courts relied on Intel to hold that arbitral tribunals are entitled to judicial assistance pursuant to §1782.3 These holdings were in stark contrast to pre-Intel federal court decisions, and more importantly, have many negative ramifications for parties to arbitral proceedings and several policies underlying arbitration. Allowing parties to international arbitral proceedings to utilize §1782 will create a huge disconnect between parties’ discovery rights and obligations in domestic and international arbitration. It will also create dissonance between judicial assistance available to arbitrating parties in the United States and other countries with judicial assistance statutes. The use of §1782 would give parties to arbitral proceedings the ability to seek broad prehearing discovery from third parties without arbitrators’ approval–a power unparalleled by U.S. domestic arbitration or the judicial assistance schemes of foreign countries.
Giving parties to international arbitration access to judicial assistance pursuant to §1782 will undermine many of the policies underlying arbitration, including the freedom to contract, reduced cost, efficiency and the arbitrators’ ability to control discovery. These principles will be undermined by trying to fit arbitral tribunals within §1782, which was clearly not drafted with the unique nuances of arbitration in mind, and is not equipped to address them. U.S. courts should certainly have a mechanism in place by which they can grant judicial assistance in aid of international arbitration. Section 1782, however, as it was interpreted by Intel, is not the proper mechanism. The principles underlying arbitration require a closely-tailored mechanism for judicial assistance to interntational arbitral proceedings.
This article explores the ramifications of the recent decisions interpreting §1782 to allow judicial assistance to international arbitral tribunals, and parties to arbitration proceedings. Section II provides a brief history of §1782. Section III analyzes the federal court decisions prior to Intel that interpreted §1782 not to include arbitral tribunals. Section IV discusses the U.S. Supreme Court’s decision in Intel, including the parties’ arguments, the European Commission’s appearance as amicus curiae, and the high court’s holding. Section V discusses the two recent district court opinions that relied on Intel to hold that §1782 does, indeed, allow district courts to grant judicial assistance to arbitral tribunals. Section VI analyzes the ramifications of these recent decisions in light of Intel’s broad interpretation of §1782, including (1) the disconnect between parties’ discovery rights and obligations in international and domestic arbitral tribunals, governed by the FAA; (2) the dissonance between broad judicial assistance and pro-arbitration principles such as efficiency and cost-effectiveness; and (3) the stark difference between U.S. judicial assistance to international arbitrations and the judicial assistance available in foreign jurisdictions. I conclude that while U.S. judicial assistance to international arbitrations is necessary, a more tailored statute that addresses the unique nuances of arbitration is superior to trying to fit arbitration tribunals into §1782.
*Anna Conley is a doctoral candidate in International and Comparative Law at the McGill University Faculty of Law and an adjunct professor at the University of Montana Law School.