If a company's business includes an international component, chances are that its contracts include agreements to arbitrate disputes. Typically, international arbitration involves little or no discovery. This article discusses one avenue for obtaining discovery in international arbitration, 28 U.S.C. §1782.
Most international arbitration rules require parties to exchange the information they intend to rely on but do not include any means to obtain the broad discovery typically available in American style litigation. For example, the International Chamber of Commerce’s (ICC) Rules of Arbitration provide that the parties shall have a reasonable opportunity to present their case (Article 15(2)) and refer to the exchange of written submissions but do not provide for discovery. Often, parties to an ICC proceeding will discuss and agree to exchange documents. This agreement will be memorialized in the Terms of Reference and may incorporate the use of the International Bar Association’s (IBA) Rules on the Taking of Evidence. The IBA rules provide for the parties to produce the documents on which they intend to rely and permit a party to request specific information.
The Rules for the International Centre for Dispute Resolution (ICDR), the international branch of the American Arbitration Association, provide a somewhat broader mandate: that “the Tribunal may conduct the arbitration in whatever manner it considers appropriate, provided that the parties are treated with equality and that each party has the right to be heard and is given a fair opportunity to present its case.” Article 16 (1). The ICDR rules contemplate the exchange of information by the parties and expressly authorize the Tribunal to order a party to deliver “a summary of documents and other evidence which that party intends to present” (Article 19 (2)) and, at any time during the proceedings, “to order parties to produce other documents, exhibits or other evidence it deems necessary or appropriate.” (Article 19 (3)). While American style discovery is not expressly allowed, it is more typical for parties to ICDR arbitrations to agree to conduct limited discovery. In response to concerns about this practice and the increase in expense, effective May 31, 2008, the ICDR implemented Guidelines for Arbitrators Concerning Exchanges of Information. These Guidelines require the Tribunal to manage the exchange of information between parties with a view towards “maintaining efficiency and economy.”
While there are many other international arbitral providers, and rules and practices vary, it is fair to say that discovery in most international arbitrations will consist of the parties’ exchange of the information on which they intend to rely and not much else. Accordingly, many people are surprised to learn that there is a statutory basis for seeking discovery in the United States in aid of an international arbitral proceeding and that some courts have actually allowed such discovery to take place.
This article discusses the statute, 28 U.S.C. Section 1782, and the cases which have applied it.
28 U.S.C. §1782
Section 1782 permits a United States District Court to order discovery for use in a proceeding in a foreign or international tribunal. It provides:
Assistance to foreign and international tribunals and to litigants before such tribunals
The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal. . . . The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person. . . . To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure. 28 U.S.C. §1782(a).
The twin aims of section 1782(a) are to (1) provide efficient assistance to international litigants, and (2) encourage, by example, foreign countries to provide similar assistance to United States courts. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 252 (2004).
Courts applying this statute have articulated three requirements which must be established to permit discovery to proceed: (1) the person resides or can be found in the district in which the application is made, (2) the discovery will be used in a proceeding before a foreign tribunal, and (3) the application is made by a foreign or international tribunal or an interested person. See Schmitz v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79, 82-83 (2d Cir. 2004). If all three of these elements are met, section 1782(a) authorizes a district court to grant an application for discovery. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. at 246-247. Ultimately, the decision to grant such discovery is in the discretion of the court.
While this statute has most often been used in aid of discovery in non-arbitral proceedings, it has been increasingly cited by parties to international arbitration proceedings.
Are Private Arbitral Bodies Foreign Tribunals?
Section 1782 states that it is a tool for obtaining discovery “for use in a proceeding in a foreign or international tribunal.” (emphasis added). The term “tribunal” is not defined and courts have articulated conflicting views about what constitutes a “tribunal.” In 1999, both the Second and Fifth Circuits held that private international arbitral panels are not “tribunals.” Nat’l Broad. Co., Inc. v. Bear Stearns & Co., Inc., 165 F.3d 184 (2d Cir. 1999) (pre-Intel case holding that private arbitral bodies are not “tribunals” based on analysis that the term “tribunal” is ambiguous and that the legislative history does not support recognition of private arbitral bodies as “tribunals”); Republic of Kazakhstan v. Biedermann, 168 F.3d 880 (5th Cir. 1999) (pre-Intel case holding that private arbitral bodies are not “tribunals” based on analysis similar to the analysis in Nat’l Broad). The issue is not, however, completely settled. The U.S. Supreme Court’s 2004 decision in Intel has made it more likely that private arbitral panels are “tribunals” within the meaning of the statute.
In Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), the U.S. Supreme Court held that section 1782 could be used to obtain discovery from a business in the United States in connection with an investigation by the EU Competition Commission. In so holding, the Supreme Court found that the Directorate-General of Competition for the Commission of the European Communities, the European Union’s primary antitrust law enforcer, was a “tribunal” within the meaning of the statute. Id. at 252. Intel is the seminal Supreme Court case interpreting section 1782(a). Although the Supreme Court in Intel did not expressly address whether private arbitral panels are “tribunals” within the meaning of the statute, it quoted, with seeming approval and at great length, language that included arbitral bodies within the term’s meaning. Id. at 253, 256-258.
Since the decision in Intel, numerous U.S. courts have considered whether international arbitral groups are “tribunals” as that term is used in section 1782. At least one post-Intel court has held that a United States District Court is not authorized to order discovery of U.S.-based businesses in connection with international arbitral matters. La Comision Ejecutiva Hidroelectrica Del Rio Lempa v. El Paso Corp., 2008 WL 5070119 (S.D. Tex. 2008).
However, the majority of courts considering this question have found that the courts are authorized to allow discovery for use in private international arbitration.
In In re Hallmark Capital Corp., the District Court of Minnesota granted the petition of a party to an Israeli arbitration to permit discovery from a non-party resident of Minnesota. 534 F. Supp. 2d 951 (D. Minn. 2007). In so holding, the court relied on Intel, the common usage of the term “tribunal” and the legislative history of section 1782 to ultimately conclude that the statute applies to private arbitral proceedings. See also In re Qwest Communications International Inc., 2008 WL 2741111 (W.D.N.C. 2008) (allowing discovery under section 1782 for use in a proceeding in the Netherlands); In the Matter of Oxus Gold, 2007 WL 1037387 (D.N.J. 2007) (allowing discovery under section 1782 for use in a private international arbitration); In re Roz Trading Ltd., 469 F. Supp. 2d 1221 (N.D. Ga. 2006) (allowing discovery under section 1782 for use in a private arbitration in Austria).
In In re Babcock Borsig A.G., the District Court of Massachusetts found that it was authorized under section 1782 to permit discovery of a Massachusetts based company in an arbitration between a Japanese company and a German company conducted in Germany under the auspices of the International Chamber of Commerce (ICC). 583 F. Supp. 2d 233 (D. Mass. 2008). The Court declined the petition, however, finding, among other things, that there was no affirmative evidence that the ICC arbitral tribunal would be receptive to the intervention of the U.S. court in that matter. Id. at 241. In sum, the usefulness of section 1782(a) in aid of discovery in international arbitral proceedings may be quite limited because the rules of most international tribunals do not provide for discovery and discovery is not the regular practice greatly decreasing the likelihood that the tribunal will provide a party with the requisite evidence that it is receptive to hearing the evidence which might be obtained pursuant to section 1782(a).
Is a party to an arbitration an “interested person?”
On its face, an application for discovery can be made under section 1782 by a foreign or international tribunal or by “any interested person.” In Intel, 542 U.S. at 256, the Supreme Court explicitly rejected limiting the phrase “interested person” to include only litigants. The Supreme Court encouraged a broader reading of the phrase, stating that “‘[a]ny interested person’ is ‘intended to include not only litigants before foreign or international tribunals, but also foreign and international officials as well as any other person whether he be designated by foreign law or international convention or merely possess a reasonable interest in obtaining the assistance.’ ” Id. (quoting Smit, International Litigation 1027). This definition is broad enough to include parties to an international arbitration being conducted before a private tribunal
How has Section 1782 been applied in aid of arbitration?
As noted, ultimately, allowing discovery under section 1782 is in the discretion of the court. Intel at 255 (explaining that section 1782 authorizes, but does not require, a federal district court to allow discovery). “The Senate Report observes . . . that §1782(a) ‘leaves the issuance of an appropriate order to the discretion of the court which, in proper cases, may refuse to issue an order or may impose conditions it deems desirable.” Intel at 260-61 (citing S.Rep. No. 1580 at 7, U.S. Code Cong. & Admin. News 1964, pp. 3782, 3788).
Several factors are to guide the Court’s consideration of applications under section 1782(a). First, when the person from whom discovery is sought is a participant in the foreign proceeding, the need for discovery assistance is not as apparent when the evidence is sought from a non-participant. Intel at 264. After all, a foreign tribunal has jurisdiction over those parties appearing before it, and is therefore in a position to order discovery, without requiring parties to resort to the jurisdiction of a United States federal court. In contrast, non-participants may be outside the jurisdictional reach of the foreign tribunal. See In re Application of Qwest Communications Inter’l, Inc., 2008 WL 2741111 (W.D.N.C. 2008) (explaining that the court in the tribunal in the Netherlands had determined that the files were relevant, but beyond the court’s reach). Since third party discovery is not typically even a consideration in an international arbitration, the fact that a foreign arbitral tribunal has provided even minimal assent to its being sought should weigh heavily in favor of the district court’s granting of the request.
Second, a court presented with a request under section 1782 may consider the nature of the foreign tribunal, the character of the proceedings and the receptivity of the foreign government or panel to the judicial assistance. Id. In Schmitz v. Bernstein Liebhard & Lifshitz, LLP, the United States Court of Appeals for the Second Circuit affirmed the trial court’s denial of a petition for discovery for a proceeding in Germany because the German Ministry of Justice and the prosecutor specifically requested that the court deny the petition. 376 F.3d 79 (2d Cir. 2004). The court cited, approvingly, the trial judge’s opinion that granting the request “would . . . encourage foreign countries to potentially disregard the sovereignty concerns of the United States and generally discourage future assistance to our courts.” Id. at 84-85 (internal quotation omitted). Courts should also consider whether the request is an attempt to circumvent foreign discovery restrictions or other policies of the foreign jurisdiction or the United States. Intel at 264-65. As the Babcock Borsig case teaches, the approval of the tribunal will be considered by the court. Given the distaste of most international arbitrators for American-style discovery, a tribunal is not likely to provide the kind of positive signal sought by the Babcock Borsig court.
Third, unduly burdensome or overly broad requests may be rejected or modified. In re Bayer, 146 F.3d 188, 196 (3d Cir. 1998) (remanding for district court consideration of “appropriate measures, if needed…”); In re Esses, 101 F.3d 873, 876 (2d Cir. 1996) (affirming limited discovery that is not “burdensome or duplicative”); see also Intel at 265 (“unduly intrusive or burdensome requests may be rejected or trimmed”). For example, in In re Roz Trading Ltd., the United States District Court for the Northern District of Georgia granted an application under section 1782, but explicitly limited the production of documents by date and subject matter. 469 F. Supp. 2d 1221, 1230-31 (N.D. Ga. 2006). Similarly, in In re Marano, the United States District Court for the Northern District of California rejected an application for discovery because the document requests were overly broad and unduly burdensome and the timeline for proposed production was unduly burdensome. 2009 WL 482649 (N.D. Cal. 2009).
In considering what is burdensome, the recent report of The American College of Trial Lawyers Task Force on Discovery and The Institute for the Advancement of the American Legal System at the University of Denver should be considered. This comprehensive report addresses the role of discovery and perceived problems in the United States civil justice system (“Joint Report”) and signals significant changes which may make their way into U.S. practice within the next five years.
Counsel seeking discovery under section 1782 should consider the following points from the Joint Report when framing the discovery request.
- Discovery should be proportional. Discovery is not the purpose of litigation, but is instead a means to an end. If the proposed discovery does not promote a just, speedy and inexpensive adjudication, it is not satisfying its purpose. Joint Report at 7.
- Discovery, specifically document discovery, should be limited to information that would enable a party to (1) prove or disprove a claim, (2) prove or disprove a defense, or (3) impeach a witness. The current discovery rules allow overly broad discovery, which are often too broad and subject to abuse. Document requests which begin “all documents relating or referring to” should not be allowed. Joint Report at 8.
Finally, we note that section 1782(a) does not contain an explicit foreign-discoverability requirement, meaning that the information need not be discoverable under the rules of the foreign jurisdiction where the action is pending, in order for the discovery to be allowed. Intel at 253. Similarly, the court in Intel explicitly rejected the argument that an applicant must show that United States law would allow discovery in analogous domestic litigation. Intel at 263.
Companies which clearly desire to avoid American style litigation and the provisions of section 1782(a) should consider including in their arbitration agreement a specific “opt out” provision regarding all statutes in aid of discovery which may be found in the laws of the country which the parties have chosen as the seat of the arbitration. In addition, that provision should include an explicit statement regarding the parties’ agreement that section 1782(a) and other similar statutes from any jurisdiction will be inapplicable. For example, a company wishing to arbitrate under the rules of the ICC in Geneva, Switzerland, without such discovery might use the following provision:
All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with said Rules. The place of the arbitration shall be Geneva, Switzerland. The parties agree that they will not seek to obtain discovery outside of said Rules, including but not limited to 28 U.S.C. §1782.
Section 1782(a) provides one tool for companies to gain needed discovery for use in an international arbitration. However, based on the dicta in Babcock Borsig, which requires the endorsement of the foreign tribunal, it is likely that district courts will grant such discovery only rarely. Thus, companies should avoid relying too heavily on the availability of such discovery.
To view this article as it appeared in the September 2009 issue of Privacy & Data Security Law Journal, please click here.