Discovery is Available in the U.S. for Foreign Arbitrations

On June 25, 2012, in In re Consorcio Ecuatoriano de Telecomunicaciones S.A., v. JAS Forwarding (USA), Inc.,┬áthe United States Court of Appeals for the 11th Circuit held that an arbitral tribunal located in Ecuador is a “tribunal” for purposes of Section 1782 of Title 28 USC (United States Code) which provides in part: “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…” The Court affirmed the district court’s ruling that discovery in the United States could proceed in connection with the Ecuadorian arbitration. This is the first reported appellate decision to hold that Section 1782 may permit discovery in connection with foreign arbitration proceedings. The Court followed the broad interpretation given to the term “tribunal” in Section 1782 by the United States Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004).