4 - Procedural Change and 28 U.S.C. § 1782: The Taking of Evidence v. Common Law Discovery

Summary

The fourth chapter discusses the role of 28 U.S.C. §1782 in international commercial arbitration. Specifically, “the taking” or “gathering of evidence” is compared and contrasted to common law discovery. Emphasis is placed on the construction of a new paradigm asserting that when submitted to reasoned examination, the taking or the gathering of evidence has failed to generate sufficient timely transparency to contribute to creating appropriate settlement conditions. It is suggested that American common law discovery is configured and organized by many of the very fundamental tenets that international commercial arbitration seeks to preserve and to promote; most notably, party-autonomy and transparency. It also is suggested that arbitral procedural law in the context of “evidence gathering” has undergone a revolutionary transformation such that it shall require continental law practitioners to appreciate narrow and limited fundamental principles of U.S. common law discovery. Chapter four also focuses on the role of party-autonomy in the gathering of evidence, as well as the taking of discovery in international commercial arbitration.