Section 1782 discovery in support of international arbitration from US district courts (28 USC § 1782)
Produced in partnership with Carlos Ramos-Mrosovsky of Alston & Bird and Matthew Reed of Freshfields Bruckhaus Deringer US LLP
Section 1782 discovery in support of international arbitration from US district courts (28 USC § 1782)

The following Arbitration guidance note Produced in partnership with Carlos Ramos-Mrosovsky of Alston & Bird and Matthew Reed of Freshfields Bruckhaus Deringer US LLP provides comprehensive and up to date legal information covering:

  • Section 1782 discovery in support of international arbitration from US district courts (28 USC § 1782)
  • What is Section 1782 discovery?
  • Discovery under Section 1782
  • A threshold question—does Section 1782 apply to international arbitration?
  • Section 1782 discovery and international arbitration after Intel
  • Section 1782’s statutory requirements
  • Section 1782 discretionary factors
  • Making a Section 1782 request
  • England and Wales—unconscionability and the use of Section 1782—applications for a restraining injunction
  • Some concluding remarks

STOP PRESS: This Practice Note is under review in light of the decision of the US Court of Appeals for the Sixth Circuit in Abdul Latif Jameel Transportation Company v FedEx Corporation.In Re: Application to Obtain Discovery for Use in Foreign Proceedings, Abdul Latif Jameel Transportation Company v FedEx Corporation, Case No. 19-5315

What is Section 1782 discovery?

US statutory law empowers federal district courts to compel discovery of documents, testimony, or other evidence, for use in proceedings before 'a foreign or international tribunal'. Section 1782(a) of Title 28 of the United States Code (Section 1782) (also cited as 28 USC § 1782) presents unique opportunities for parties involved in international disputes, but the availability of Section 1782 discovery in support of international arbitrations has given rise to some disagreement among US federal courts.28 USC § 1782—Assistance to foreign and international tribunals and to litigants before such tribunals

Although the operation of Section 1782 is complex and dependent on judicial discretion, a substantial body of authority nevertheless supports the view that Section 1782 authorises courts to order discovery of evidence for use in international arbitration.

This Practice Note provides an overview of the statutory and discretionary factors that US courts consider in deciding whether to grant applications for discovery under Section 1782, with particular attention to whether and when Section 1782 may be available in connection with international arbitration proceedings. This Practice Note also provides a brief overview of the procedure by which a party may seek judicial assistance under Section 1782. Finally, this Practice Note considers the circumstances in which the courts of England and Wales (England and