28 U.S.C. Section 1782

U.S. Circuit Court Finds Section 1782 Allows for Obtention of Evidence Located Outside the U.S. Detained by Companies not Incorporated in the U.S.

On 7 October 2019, the United States Court of Appeals for the Second Circuit (the Second Circuit) rendered a decision in the case of Re: Application of Antonio del Valle Ruiz in which it ruled on whether 28 U.S.C. Section 1782 (Section 1782) allows for the obtention of evidence located outside the United States.

As we discussed before, Section 1782 is a U.S. Federal Statute that allows a litigant before a “foreign or international tribunal” outside the United States to apply to the U.S. district courts to obtain discovery against a person or entity residing or found in the district where the application is sought. As many jurisdictions, in particular civil law jurisdictions, have more limited procedures for the disclosure of evidence between parties, the possibility of using Section 1782 to obtain evidence is thus potentially very useful.

The case related to a dispute over the 2017 take-over, by the Spanish bank Santander, of Banco Popular Espanol, another Spanish bank. A group of Mexican and American investors contested the take-over and brought a case against Santander in the United States. During the dispute, the investors sought to obtain documents held by Santander. However, since Santander itself was not incorporated in the United States (and thus was not “residing or found” in the relevant district), the investors sought to obtain discovery, through a Section 1782 order issued against Santander‘s New York affiliate: Santander Investment Securities Inc.READ MORE

English Commercial Court Rules on Enforcement of Section 1782 Order

It has been a couple of weeks since I wanted to report on a judgment by the English Commercial Court which ruled on the enforcement of 28 U.S.C. Section 1782 (Section 1782)[1]. As we discussed before, Section 1782 is a U.S. Federal Statute that allows a litigant before a “foreign or international tribunal” outside the United States to apply to the U.S. district courts to obtain discovery against a person or entity residing or found in the district where the application is sought.READ MORE

Kiobel Returns before Dutch Courts Seeking Application of Section 1782

Royal Dutch Shell (Shell) is currently having a tough time defending itself in court: A few days ago, we discussed the recent judgment from the English High Court that dismissed a claim brought against Shell for oil pollution in Nigeria. This time we discuss a decision by the U.S. District Court of the Southern District of New York (the S.D.N.Y) which granted a petition to access documents in the possession of Shell’s lawyers for use in legal proceedings against Shell in the Netherlands.READ MORE

New York District Court Finds Section 1782 Applicable to Arbitral Tribunals… but What Kind of Arbitral Tribunals?

Happy New Year!

After having spent the last weeks of 2016 reporting on the Belgian aspects of the enforcement proceedings of the Yukos awards, I wanted to share some thoughts with you on a recent development that took place on the other side of the Atlantic.

On 16 November 2016, the District Court for the Southern District of New York (the S.D.N.Y), handed down its decision in In Re Ex Parte Application of Kleimar N.V. This decision adds up to the relatively large number of federal district court cases which have – following the U.S. Supreme Court’s judgment in Intel v. AMD – showed a willingness to consider arbitral tribunals to be included within the meaning of 28 U.S.C. Section 1782 (Section 1782).

Section 1782 is a U.S. Federal Statute that allows a litigant before a “foreign or international tribunal” outside the United States to apply to the U.S. district courts to obtain discovery against a person or entity residing or found in the district where the application is sought. The questions of whether this federal statute also applies in arbitration proceedings and whether arbitral tribunals fall within the category of “international tribunal” within the meaning of Section 1782 remain, however, uncertain.READ MORE