The U.S. Code contains a longstanding and – until recently
– uncontroversial tool to assist in proceedings before a
"foreign or international tribunal." Then, in just the
past nine months, at least six landmark decisions have come out of
U.S. circuit and district courts around the country, creating a
controversy likely headed for the U.S. Supreme Court.
The Code section, 28 U.S.C. § 1782, allows U.S. district
courts, upon application by a party in an international proceeding,
to compel discovery from a non-party so long as the non-party
person or entity resides or does business in the jurisdiction of
the U.S. district court where the application is made. However,
about half of the recent cases hold that this discovery tool is not
available in private international commercial arbitrations. The
other half say that it is.
