Are United States Courts Receptive to International Arbitration

I. INTRODUCTIONUSC provision § 1782, Assistance to Foreign and International Tribunals and to Litigants before such Tribunals, has received its fair share of attention in recent years. It has been showcased in various scholarly articles,1 disputed in U.S. court decisions,2 conceptually deconstructed through various perspectives,3 and resorted to in other forums.4 Many of these contributions, however, have been laced with legal verbiage, paying homage to pro-[court] litigation ideals and often losing sight of the key advantages and underlying purposes of international arbitration. We advocate divergence from this trend by addressing a core outstanding issue of § 1782: what is the appropriate method to provide judicial assistance to international arbitration tribunals regarding matters of discovery?We contend that U.S. district courts would be better offrefraining from rendering discovery assistance to arbitral tribunals unless they have first received the arbitral tribunal's blessing.5 The article and argument is divided into three parts. First, a brief outline of the legislative history of § 1782 will be provided to demonstrate that a literal and purposive reading of § 1782 invites an interpretation consistent with authorizing an international arbitral tribunal permission-granting status. Second, a review of several U.S. court cases illustrates that the veritable splatter-shot of judicial decisions on the matter demand greater consistency as well as improved respect for international comity and appreciation for the uniqueness of international arbitration. Third, the paper will look to the Canadian approach to question whether U.S. district courts can possibly learn from and improve upon the approach taken by their northern neighbors.Before commencing, there are two points that warrant mention. First, a minority of district courts has determined that international arbitration is not captured within the § 1782's textual language of or international tribunal.6 We align ourselves with the majority of court decisions that regard international arbitral tribunals as falling within the scope of or international tribunal.7 Second, the present study is limited to the application of § 1782 to international arbitration tribunals only, which may not be applicable to the reasons for and against the application of the provision to other or international tribunals.II. LEGISLATIVE HISTORYThe United States has a long history of providing judicial assistance to foreign courts.8 Section 1782 did not suddenly appear in 1964 like Minerva springing forth from Jupiter's head. Instead it was the gradual product of congressional efforts, over the span of nearly 150 years.9 In 1855, Congress passed the first statute allowing U.S. federal courts to assist foreign courts in obtaining evidence located within U.S. territory in 1855.10 Subsequently, Congress passed the Acts of 1863,11 1948,12 and 1949.13In 1958, Congress, in an effort to facilitate international business activity, pro-actively established the Commission on International Rules of Judicial Procedure (Commission).14 Congress recognized the need for statutory improvements in the area of judicial assistance in order to keep pace with the increased involvement of the United States in international relations and international litigation.15 The Commission, directed by Professor Hans Smit, was tasked with investigat[ing] and study[ing] existing practices of judicial assistance and cooperation between the United States and Foreign countries with a view to achieving improvements.16 In 1963, the Commission recommended drastic changes to the procedures for providing international judicial assistance.17In 1964, Congress, without any revisions, adopted the Commission's proposed amendments to § 1782.18 Section 1782, as now enacted, provides in relevant part:(a) 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, including criminal investigations conducted before formal accusation. …

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