Postscriptum – Vol. 8 No. 2

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Published: July 1997

United States
Judicial Assistance in Procedural Matters

Description: This above comment had already gone to press, when the United States Court of Appeals for the Second Circuit, on January 26, 1999, rendered its decision on the appeal taken in the National Broadcasting Co., Inc. v. Bear Stearns & Co. case (Docket No. 98-7468). A Second Circuit Panel, composed of Circuit Judges Miner and Cabranes, with Judge Chatigny of the District of Connecticut sitting by designation, in an opinion authored by Circuit Judge Jose A. Cabranes, affirmed the lower court’s ruling that an arbitral tribunal created by private contract is not “a foreign or international tribunal” within the meaning of Section 1782. The decision is remarkable for a number of reasons.

First, the text of Section 1782, which speaks of aid to a “foreign or international tribunal,” on its face, clearly includes a foreign or international arbitral tribunal. The Second Circuit’s Panel denies this, for it declares these words to be ambiguous and therefore to require further and narrowing interpretation. Of course, the legislative history may shed some light. It shows that Section 1782 superseded provisions that dealt separately with aid to a “court in a foreign country” (old Section 1782) and aid to “international tribunals established pursuant to an agreement between the United States and any foreign government or governments” (old Sections 270-270g) and that new Section 1782 substituted the term “tribunal” for court and entirely eliminated the requirement that the tribunal be established by an agreement involving governments, including that of the United States. The legislative history therefore resolutely contradicts the notion embraced by the Second Circuit’s Panel that international tribunals are only tribunals established by inter-governmental agreements. Furthermore, the legislative history leaves no doubt that new Section 1782 was intended greatly to liberalize the assistance provided by American courts and that anybody with “quasi-adjudicatory” functions was intended to be included among the beneficiaries of Section 1782.

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