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Life sciences companies should pay attention to an ongoing action in Delaware that could have implications for whether they can obtain (or be subjected to) U.S. discovery in international arbitration under 28 U.S.C. § 1782. Section 1782 is a powerful tool that permits litigants to obtain broad discovery in the United States for use in international arbitrations, which traditionally do not provide for or allow significant discovery. But U.S. courts have found that not all international arbitrations qualify under this statute. While courts have permitted Section 1782 to be used in connection with investor-State arbitration, they have wrestled with whether to apply the statute in the context of international arbitration between two private, commercial parties.

The statute states in pertinent 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 order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court.”

Click here to read the full GT Alert, “Does Section 1782 Apply to Discovery in Private International Commercial Arbitration Proceedings?”

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Photo of Nicole Y. Silver Nicole Y. Silver

Nicole Silver focuses her practice on international litigation and dispute resolution. She advises Sovereign States and private clients in international arbitration proceedings, including arbitrations before the International Centre for Settlement of Investment Disputes (ICSID) and the Permanent Court of Arbitration (PCA) under the

Nicole Silver focuses her practice on international litigation and dispute resolution. She advises Sovereign States and private clients in international arbitration proceedings, including arbitrations before the International Centre for Settlement of Investment Disputes (ICSID) and the Permanent Court of Arbitration (PCA) under the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, in a wide array of sectors, including energy, infrastructure, telecommunications, and the environment. Nicole also represents clients in complex civil litigation, including products liability litigation and white collar criminal defense. Her experience includes preparing motions for the U.S. District Court for the Southern District of New York, the U.S. Court of Appeals for the Second Circuit, and the Supreme Court of the United States.

Photo of Thomas G. Allen‡ Thomas G. Allen‡

Thomas G. Allen is a Shareholder in Greenberg Traurig’s International Arbitration and Litigation Group. His practice focuses on cross-border disputes in a variety of industries with an emphasis on energy, manufacturing, construction, and aviation. Thomas has wide-ranging experience in high-value international and U.S.

Thomas G. Allen is a Shareholder in Greenberg Traurig’s International Arbitration and Litigation Group. His practice focuses on cross-border disputes in a variety of industries with an emphasis on energy, manufacturing, construction, and aviation. Thomas has wide-ranging experience in high-value international and U.S. arbitrations. He also litigates the enforceability of arbitration clauses and arbitration awards in U.S. Courts. Thomas is a frequent lecturer on international arbitration topics and is a former adjunct professor in the international arbitration discipline. He acts as an arbitrator and has advised foreign governments and corporations in investor-state dispute settlement matters. Thomas currently serves as Vice Chair of the Dispute Resolution and Arbitration Committee of the Inter-Pacific Bar Association. He also counsels foreign and U.S. corporations on U.S. government investigations and enforcement proceedings. Prior to joining Greenberg Traurig, Thomas was a partner at another Global 100 law firm.

Admitted in the District of Columbia and Virginia. Has not taken the Chinese national PRC judicial qualification examination. Not admitted in Japan.