Discovery, Arbitration, and 28 U.S.C. §1782: Rules or Standards?

Abstract

This paper is a draft for one of the chapters for Professor Silberman’s book on private international law: “The Counter-Revolution in Private International Law in the United States: From Standards to Rules? The book will be based on her Hague Academy General Course Lectures to be given remotely in summer 2021. This particular paper explores the tensions between standards and rule as it relates to U.S. judicial assistance for use in a “foreign or international tribunal”, as provided for in 28 U.S.C. § 1782. Professor Silberman traces the history of § 1782 and discusses the first and only Supreme Court decision, Intel Corpo. v. Advanced Micro Devices. Inc., interpreting the statute. She then focuses on the question of whether a “foreign or international tribunal” under § 1782 includes private commercial arbitration, an issue before the Court in Servotronics, Inc. v. Rolls-Royce PLC to be argued next term. Professor Silberman highlights the Circuit split on this issue and surveys the competing arguments on both sides. Referencing arbitration specific statutes in other jurisdiction, Professor Silberman observes a distinction between judicial assistance for discovery purposes and for use in a plenary proceeding. Professor Silberman suggests that “rules” rather than “standards” would be preferable in the arbitration context and suggests a legislative solution to create such rules.