There is no impending crisis: a look beyond the Sixth Circuit’s decision to permit Section 1782 discovery for use in international commercial arbitration

• Published in: Arbitration international 2020-03, Vol.36 (1), p.87-108
• Main Author: Tompkins, Jonathan J
• Format: Article
• Language: English
• Subjects: Arbitration, International; Attitudes; International commercial arbitration; Justice; Lawyers; Social aspects
• ISSN: 0957-0411; 1875-8398
• DOI: 10.1093/arbint/aiaa006

Abstract There are few topics in international arbitration that engender more intense sentiments amongst practitioners than discovery. While debate endures over the applicability, suitability and extent of discovery within this autonomous system of justice, it is impossible to escape the reality that national laws and courts will and do have a role—often a significant one—to play in international arbitration proceedings, most notably to assist in the arbitral process. One US federal law in particular, 28 USC § 1782, has become increasingly relevant in recent years, as more parties attempt to harness its potency in facilitating discovery of evidence in aid of foreign arbitration. The application of the statute to foreign or international arbitral tribunals, however, is a murky question, and not one on which all US federal courts agree. Most recently, the US Court of Appeals for the Sixth Circuit broke with some of its sister circuits in finding that discovery under section 1782 is permissible for use in foreign or international commercial arbitrations. While many have denounced the decision as contrary to, or arguably likely to render less effective, principles or aspects of international arbitration deemed sacrosanct by arbitration enthusiasts, the effect of the Sixth Circuit’s decision on the broader practice of arbitration must not be overstated. Practitioners, tribunals, and the US federal district courts in particular already have ample means at their disposal to thwart section 1782’s potentially broad reach and effectiveness in creating inequities or turmoil in arbitration proceedings. Channeled effectively, these tools and proper considerations of discretion can ensure an appropriate balance between the need for critical evidence and the prevention of drawn-out, inequitable, and inefficient arbitral proceedings.