Discovery, Judicial Assistance and Arbitration: A New Tool for Cases Involving U.S. Entities?

Limited discovery is one of the regularly cited advantages of international arbitration, as opposed to international litigation, particularly in contrast to litigation in the US. courts. Recent decisions by US. courts, however, have threatened to upend this comparative advantage. Invoking a little known US. law, 28 U.S.C. section 1782, these courts have permitted parties in an arbitration to petition for subpoenas issued by US. courts against their adversaries or third parties. Bucking the trend in the academic literature, which largely supports this development, this article opposes reading section 1782 to authorize subpoenas in support of an arbitration. Not only does this undermine the sensible limits on discovery in arbitration, it risks undermining the entire arbitral process by creating an asymmetrical tactical device that systematically disfavors US. companies:foreign parties can use section 1782 petitions as a tool both to extract information from their US. adversaries and to bolster their settlement position. To avoid these deleterious results, section 1782 should be interpreted not to encompass international arbitral tribinals