Summary

SUMMARY OF ARGUMENT

I.A. In the international arbitration context, comity concerns counsel toward interpreting domestic laws in a way that harmonizes them with similar laws in foreign jurisdictions. Such an approach facilitates stability, consistency, and predictability in the international arbitration system that reinforces its efficiency and effectiveness. United States courts, for instance, have looked to foreign interpretations of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards to promote uniformity in the enforcement of international commercial arbitration agreements and awards.

B. This Court should take the same comparative approach in deciding whether 28 U.S.C. § 1782 applies to foreign-seated international commercial arbitral tribunals, which are often referred to as "private" arbitral tribunals. Section 1782 was designed to promote the orderly resolution of disputes in the United States and abroad and to facilitate international cooperation. Comity principles thus favor an interpretation of § 1782 that is consistent with similar laws in other jurisdictions. A construction of § 1782 guided by these comity concerns respects other countries' interests in a well-functioning international commercial arbitration system.

C. Several leading international arbitration jurisdictions have domestic equivalents of § 1782 that provide judicial assistance in gathering evidence for use in foreignseated commercial arbitrations. Those jurisdictions include the United Kingdom, New Zealand, France, Germany, Sweden, and Switzerland, all of which provide for such assistance in their evidentiary rules or arbitration statutes. Although a global consensus has not yet emerged, the practice of these jurisdictions counsels against the wholesale exclusion of foreign-seated international commercial arbitral tribunals from the scope of § 1782. Applying § 1782 to such tribunals would be consistent with, and not anomalous to, the emerging norm in the international system.

II.A. Critics of § 1782 argue that applying the statute to foreign-seated international commercial arbitrations threatens their hallmark characteristics of efficiency and party autonomy. But another key feature of arbitration is the fair adjudication of disputes based on a comprehensive evidentiary record, which § 1782 helps support. Arbitral tribunals also have tools to maintain their efficiency. They can refuse to stay a case pending a § 1782 application or sanction parties for using the statute in ways that contravene the tribunal's rules. And parties, of course, can always choose to contract out of using § 1782. Party autonomy thus supports including foreign-seated international commercial arbitrations within the scope of § 1782, so litigants and arbitral tribunals have the option to use the tool when needed.

B. Section 1782 also has safeguards to prevent its abuse by parties to international arbitrations. Production of evidence under § 1782 is discretionary, not automatic. United States courts applying § 1782 thus serve as critical gatekeepers in preventing potential misuse. In exercising this discretion, courts are also discouraged from exerting undue influence in international arbitrations. In Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), this Court set out specific criteria to guide lower courts' exercise of discretion in evaluating § 1782 applications. Those criteria require courts to consider the international tribunal's management of its own proceedings, the tribunal's position on the need for the requested evidence, whether the requests are designed to circumvent the agreed-upon arbitration rules, and whether the request is unduly intrusive or burdensome, among other considerations. On the whole, lower courts have largely heeded to these requirements, including, for instance, by accounting for the tribunal's receptivity to the requested evidence in deciding whether to grant a § 1782 application. When applied consistently with this Court's criteria, § 1782 supports international arbitration without risking unwarranted judicial interference by United States courts.

...