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1782 Discovery Blog: U.S. Courts Remain Spilt On Allowing §1782 Discovery For International Arbitration

by | Jul 30, 2020 | 1782 Blog

          The Second Circuit has reinforced the spilt among the circuits whether 28 U.S.C. §1782 may be utilized to obtain evidence for use in private international arbitrations outside the United States.  In Hanwei Guo v. Deutsche Bank Sec., 2020 U.S. App. LEXIS 21219 (2d Cir. July 8, 2020), the Second Circuit considered whether the scope of §1782 includes private international arbitration.  It affirmed the district court’s determination that a China International Economic and Trade Arbitration Commission (“CIETAC”) arbitration was best categorized as private commercial arbitration and that §1782 judicial assistance is accordingly, unavailable.  Its decision was based upon National Broadcasting Co., Inc. v. Bear Stearns & Co., Inc., 165 F.3d 184 (2d Cir. 1999) (“NBC”), which concluded that the legislative and statutory history of the inclusion of the phrase “foreign or international tribunal” into §1782, alongside with policy consideration of preserving the efficiency and cost-effectiveness of private arbitration, demonstrated that §1782 does not extend to private international arbitration. 

          The Second Circuit noted NBC was not overruled by Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 124 S. Ct. 2466 (2004) because whether a private arbitral tribunal was a “tribunal” under §1782, was not under consideration in Intel.  It also noted the recent Fourth Circuit decision in Servotronics, Inc. v. Boeing Co., 954 F.3d 209, 210 (4th Cir. 2020) and Sixth Circuit decision in Abdul Latif Jameel Transp. Co. v. FedEx Corp., 939 F.3d 710 (6th Cir. 2019) which held that §1782 does encompass private international arbitration.  While the Second Circuit in Hanwei Guo is at odds with these decisions, it opined neither decision “rested on the notion that Intel undermined NBC or otherwise required a reading of §1782 that encompasse[d] private arbitration”, but came to their holdings based upon their statutory interpretation of §1782, not by precedent from Intel.

         Going forward, this circuit split cautions participants in international private commercial arbitrations seeking §1782 to be highly selective of the U.S. judicial district in which to proceed.

Thomas C. Sullivan is a senior attorney in the Philadelphia office of Marks & Sokolov LLC. Mr. Sullivan represents Western, Russian and Ukrainian clients in complex commercial disputes including civil RICO, securities fraud, Foreign Corrupt Practices Act, Convention on the International Sale of Goods and ICC Arbitration matters.  He has litigated numerous Section 1782 discovery matters throughout the United States and written extensively on the topic.

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