Court opens door to US-style discovery

Author: | Published: 1 Jun 2005

International commercial arbitration offers many advantages over litigating cross-border disputes, but it still suffers from certain inherent weaknesses. One such weakness is the difficulty of obtaining evidence located somewhere other than the seat of the arbitration, and this is particularly so where a non-party holds that evidence. In a typical scenario the opposing party's accountant, bank or a joint venture partner, located beyond the arbitral seat, may have crucial documents or witnesses. To make matters worse, US federal courts have generally been hostile to requests to order discovery in support of foreign arbitration proceedings. One of the few provisions potentially at their disposal, 28 USC Section 1782, which empowers federal courts to make such discovery orders in proceedings before a "foreign or international tribunal", has been interpreted narrowly to exclude discovery in aid of a foreign arbitration proceeding. A recent US Supreme Court decision in Intel Corp v Advanced Micro Devices Inc, however, offers new hope to those who wish to use Section 1782 in the context...