The American Influences on International Commercial Arbitration Doctrinal Developments and Discovery Methods
Book contents
- Frontmatter
- Contents
- Table of Citations
- Acknowledgments
- Foreword
- Preface
- 1 Introduction
- 2 The Formation and Transformation of the Status of International and Domestic Arbitration in the United States
- 3 Wilko v. Swan, Scherk v. Alberto-Culver, and Mitsubishi v. Soler: Crafting a Level Playing Field
- 4 Procedural Change and 28 U.S.C. §1782: The Taking of Evidence v. Common Law Discovery
- 5 The Gathering of Evidence v. Common Law Discovery
- 6 What Has Really Happened? The Effects of a Trilogy Examined
- 7 The New Unorthodox Conception of Common Law Discovery in International Arbitration
- 8 And Now How Do We Avoid 28 U.S.C. Section 1782 in International Commercial Arbitration?
- 9 Perjury & Arbitration: The Honor System Where the Arbitrators Have the Honor and the Parties Have the System
- 10 Developments in the Apportionment of Jurisdiction Between Arbitrators and Courts Concerning the Validity of a Contract Containing an Arbitration Clause, and Transformations Regarding the Severability Doctrine
- 11 U.S. Arbitration Law and Its Dialogue with the New York Convention: The Development of Four Issues
- Conclusion
- Appendix A Duelo a Garrotazos
- Appendix B Selected Cases
- Appendix C The New York Convention, The Federal Arbitration Act, and 28 U.S.C. §1782
- Appendix D Amendments to 28 U.S.C. §1782
- Appendix E Selected Rules of Civil Procedure
- Appendix F Geneva Convention of 1927
- Appendix G Selections from the Legislative History of the Federal Arbitration Act
- Index
- References
4 - Procedural Change and 28 U.S.C. §1782: The Taking of Evidence v. Common Law Discovery
Published online by Cambridge University Press: 11 July 2009
Book contents
- Frontmatter
- Contents
- Table of Citations
- Acknowledgments
- Foreword
- Preface
- 1 Introduction
- 2 The Formation and Transformation of the Status of International and Domestic Arbitration in the United States
- 3 Wilko v. Swan, Scherk v. Alberto-Culver, and Mitsubishi v. Soler: Crafting a Level Playing Field
- 4 Procedural Change and 28 U.S.C. §1782: The Taking of Evidence v. Common Law Discovery
- 5 The Gathering of Evidence v. Common Law Discovery
- 6 What Has Really Happened? The Effects of a Trilogy Examined
- 7 The New Unorthodox Conception of Common Law Discovery in International Arbitration
- 8 And Now How Do We Avoid 28 U.S.C. Section 1782 in International Commercial Arbitration?
- 9 Perjury & Arbitration: The Honor System Where the Arbitrators Have the Honor and the Parties Have the System
- 10 Developments in the Apportionment of Jurisdiction Between Arbitrators and Courts Concerning the Validity of a Contract Containing an Arbitration Clause, and Transformations Regarding the Severability Doctrine
- 11 U.S. Arbitration Law and Its Dialogue with the New York Convention: The Development of Four Issues
- Conclusion
- Appendix A Duelo a Garrotazos
- Appendix B Selected Cases
- Appendix C The New York Convention, The Federal Arbitration Act, and 28 U.S.C. §1782
- Appendix D Amendments to 28 U.S.C. §1782
- Appendix E Selected Rules of Civil Procedure
- Appendix F Geneva Convention of 1927
- Appendix G Selections from the Legislative History of the Federal Arbitration Act
- Index
- References
Summary
SECTION 1782 AND ITS ELEMENTS
The fundamental propositions governing Section 1782 can be succinctly summarized by citing the statute:
(a) The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made…upon the application of any interested person and may direct that the testimony or statement be given, or the document or thing be produced, before a person appointed by the Court (emphasis supplied).
The current iteration of Section 1782 was modified in 1964. Courts have observed that Section 1782 was amended “to facilitate the conduct of litigation in foreign tribunals, improve international cooperation in litigation, and put the United States into the leadership position among world nations in this respect.” According to the Senate Report that accompanied the final version of the draft that eventually became the current iteration of Section 1782, “Congress hoped to encourage foreign countries to revise their judicial procedures similarly.”
Analysis of the opinions federal courts have issued construing Section 1782 establishes that the jurisprudence is of a single voice in holding that this provision aspires to the “twin goals” of (i) providing an efficient means for the assistance of interested persons engaged in international disputes to provide them with direct access to federal district courts, and (ii) encouraging foreign courts to provide comparable means of foreign assistance to those litigants in U.S. courts seeking the production of documents and information in foreign jurisdictions.
Information
- Type
- Chapter
- Information
- The American Influences on International Commercial ArbitrationDoctrinal Developments and Discovery Methods, pp. 38 - 50Publisher: Cambridge University PressPrint publication year: 2009
References
See also Anonymous, Extra-Statutory Discovery Requirements: Violating the Twin Purposes of 28 U.S.C. Section 1782, 29 Vand. J. Transnat'l L. 117 (1996)
, In Search of Discovery: The Split Between the Circuits Surrounding a Threshold Discoverability Requirement to Provide Assistance Under 28 U.S.C. 1782, 30 Tex. Int'l L.J. 583 (1995)Google Scholar
, EVIDENCE – NO EXTRA STATUTORY BARRIERS TO OBTAINING DISCOVERY UNDER 28 U.S.C. §1782, 29 Suffolk Transnat'l L. Rev. 147 (2005)Google Scholar
, RECENT INTERPRETATION OF 28 U.S.C. 1782(A) BY THE SUPREME COURT IN INTEL CORP. V. ADVANCED MICRO DEVICES, INC.: THE EFFECTS ON FEDERAL DISTRICT COURTS, DOMESTIC LITIGANTS, AND FOREIGN TRIBUNALS AND LITIGANTS, 17 Pace Int'l L. Rev. 413 (2005)Google Scholar
, Euromepa v. Esmerian: The Scope of the Inquiry Into Foreign Law When Evaluating Discovery Requests Under 28 U.S.C. sec. 1782, 21 N.C.J. Int'l L. & Com. Reg. 491 (1996)Google Scholar
, OUT OF BOUNDS? APPLICABILITY OF FEDERAL DISCOVERY ORDERS UNDER 28 U.S.C. SECTION 1782 BY INTERNATIONAL ATHLETIC GOVERNING BODIES FOR USE IN INTERNAL DISPUTE RESOLUTION PROCEDURES, 19 Loy. L.A. Ent. L.J. 631 (1999)Google Scholar
, INTERNATIONAL JUDICIAL ASSISTANCE: DOES 28 U.S.C. 1782 CONTAIN AN IMPLICIT DISCOVERABILITY REQUIREMENT?, 18 Fordham Int'l L.J. 332 (1994)Google Scholar
, A NEW WORLD OF DISCOVERY: THE RAMIFICATIONS OF TWO RECENT FEDERAL COURTS’ DECISIONS GRANTING JUDICIAL ASSISTANCE TO ARBITRAL TRIBUNALS PURSUANT TO 28 U.S.C. §1782, 17 Am. Rev. Int'l Arb. 45 (2006)Google Scholar
, A remedy fashioned by an arbitrator is within the scope of the arbitrator's authority if the remedy is rationally related to the contract and to the breach, as interpreted by the arbitrator: Advanced Micro Devices, Inc. v. Intel Corp., 23 Pepp. L. Rev. 243 (1995)Google Scholar
, Advanced Micro Devices v. Intel Corp. and Judicial Review of Commercial Arbitration Awards: When Does a Remedy “Exceed” Arbitral Powers?, 46 Hastings L.J. 1907 (1995)Google Scholar
, SECTION 1782(A) AFTER INTEL: RECONCILING POLICY CONSIDERATIONS AND A PROPOSED FRAMEWORK TO EXTEND JUDICIAL ASSISTANCE TO INTERNATIONAL ARBITRAL TRIBUNALS, 27 Cardozo L. Rev. 1035 (2005)Google Scholar
Accessibility standard: Unknown
Why this information is here
This section outlines the accessibility features of this content - including support for screen readers, full keyboard navigation and high-contrast display options. This may not be relevant for you.Accessibility Information
Accessibility compliance for the PDF of this chapter is currently unknown
and may be updated in the future.