Four times in the past 15 months the U.S. Supreme Court has struck down lower court attempts to limit the impact of the Federal Arbitration Act by allowing recourse to the courts on three of those occasions issuing per curiam orders vacating state court decisions for ignoring Supreme Court precedent. In light of the court’s expansive interpretation of the FAA, I elsewhere urge rulemakers to take the court up on its invitation to create a mechanism for meaningful judicial review of arbitral awards. See Gregory P. Joseph, "We Need to Do Something about Arbitration," 39 Litigation No. 3 at 9 (summer 2013). This article addresses some practical issues under the FAA as it currently applies both to international and domestic arbitration. It begins, however, with an important decision construing 28 U.S.C. 1782.
Discovery in aid of arbitration abroad. Section 1782 authorizes the district court to order any person who "resides or is found" in the district to give testimony or produce evidence "for use in a proceeding in a foreign or international tribunal." Prior to the Supreme Court’s decision in Intel Corp. v. Advanced Micro Devices, 542 U.S. 241 (2004), a foreign arbitral tribunal was not deemed to be a "tribunal" within the meaning of the statute. In the first post-Intel circuit-level decision to address the question, the U.S. Court of Appeals for Eleventh Circuit held in Application of Consorcio Ecuatoriano de Telecomunicaciones S.A., 685 F.3d 987 (11th Cir. 2012), that Intel‘s emphasis on the breadth of the term "tribunal" and the fact that this term was substituted in 1964 for the phrase "judicial proceeding" led to the conclusion that the foreign arbitration before it fell within the scope of § 1782.
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