Limiting 28 U.S.C. § 1782: A Changed Landscape for Discovery in Private Commercial Arbitration Abroad

Authors

Jazmyne R. Barto

First Page

57

Abstract

For decades 28 U.S.C. § 1782 has been used by foreign entities looking to compel discovery in the United States for use in commercial arbitration proceedings abroad. Despite the statute being in force since 1948, many federal courts were unsure of whether § 1782 could actually be used in international private commercial arbitration. The Supreme Court tried and failed to clarify the statute’s scope in 2004, leading to a circuit court split as to §1782’s applicability. Looking to end the controversy once and for all, during the Summer of 2022, the Supreme Court clearly stated that § 1782 might not be used by parties involved in private commercial arbitration abroad. This decision leaves foreign companies with one less option to compel discovery in arbitration proceedings against parties from the United States. These companies may decide to file suit in a United States Federal Court to obtain discovery, then drop the case to pursue arbitration. They may also try to compel Congress to pass an amendment to § 1782 that explicitly allows discovery in such proceedings. Finally, they may redraft arbitration clauses in their contracts to contain more explicit rules for discovery. While all three options have advantages, drafting effective discovery clauses in agreements to arbitrate is the best way to fill the gap left by the inapplicability of § 1782.

Recommended Citation

Jazmyne R. Barto, Limiting 28 U.S.C. § 1782: A Changed Landscape for Discovery in Private Commercial Arbitration Abroad, 17 Brook. J. Corp. Fin. & Com. L. 57 (2023).
Available at: https://brooklynworks.brooklaw.edu/bjcfcl/vol17/iss2/5