Brian Zemil published “Navigating U.S. Discovery in Foreign Commercial Arbitration Proceedings” in the Winter 2021 issue of Litigation News. The following is an excerpt:
Parties in international arbitration proceedings are increasingly turning to American courts for subpoenas to import facts from the United States. As 28 U.S.C. § 1782 authorizes federal courts to order testimony or produce documents only in aid of proceedings before a “foreign or international tribunal,” courts disagree about the applicability of section 1782 beyond proceedings in or under the auspices of foreign courts. Until the Supreme Court settles the issue, parties to international arbitrations should expect jurisdiction-by-jurisdiction disputes about their ability to employ subpoenas to facilitate the resolution of their claims.