International Commercial Arbitration

International Commercial Arbitration

Introduction

Broad and expansive discovery distinguishes litigation in the United States from litigation in almost every other nation. This comparatively unchecked pre-trial procedure has often driven parties to resolve their cross-border commercial disputes in international arbitration, where discovery and prehearing procedures can be streamlined. This raises the question of whether the discovery allowed by Section 1782 of Title 28 of the United States Code applies to international arbitral tribunals, particularly those created under private arbitration agreements. There are many articles discussing the case law on this issue and this article covers some of the same ground . But what makes this article different is that it discusses some practical considerations concerning Section 1782 that parties should take into account when:

negotiating a dispute resolution clause (for example, whether to limit Section 1782 discovery in the arbitration agreement or prescribe particular procedures, and where to seat the arbitration),

preparing to arbitrate (such as what to look for in selecting the arbitrators), and

Contemplating making a Section 1782 request in court (for instance, where to file the request—i.e., the district court in which to file and the timing of the request).

From the my standpoint, of terminology, the word compromise, which means an arbitration agreement, used for both the arbitration clause as a compromise? The arbitration agreement contract subjects to the terms of the contracts. According to Alexander, the requirements of Section 1782 Under Section 1782, litigants in certain foreign courts may apply to a U.S. district court to obtain discovery from a person or entity located in the U.S. for use in those foreign proceedings. The requesting party must show that the applicant is an interested party in a proceeding in a foreign or international tribunal. There is also a procedural requirement. The request must be made to the district court in the district in which the person from whom discovery is sought resides or is found.

When Section 1782 was revised in 1964, international arbitration was not a common dispute resolution mechanism. U.S. courts readily granted Section 1782 applications for discovery in aid of proceedings in foreign courts. It was not until the early 1990s that courts faced the issue of whether the phrase a foreign or international tribunal applied to an international arbitral tribunal. The decisions from district courts were not uniform. The issue reached both the 2nd and 5th Circuits, each concluding that Section 1782 did not apply to international arbitral tribunals. Then Intel Corp. v. Advanced Micro Devices reached the U.S. Supreme Court. The Intel decision clarified a number of questions about Section 1782, but it did not decide whether the statute encompassed either governmental or private arbitral tribunals, or both. As a result, district courts continued to disagree Case Law Prior to 2004 Section 1782's application to arbitral tribunals was first addressed in 1994.

According to my argument, the techno-story-export, a Russian association, obtained an order under Section 1782 allowing it to serve subpoenas on International Development and Trade Services, a New York corporation, for ...