Collecting evidence from abroad for use in UK litigations and in international arbitrations – with special reference to the EU and the U.S.A.

United Kingdom

Until now, there have been several ways to obtain documents and the testimony of witnesses from abroad for use in proceedings here.

One has been under the EU Taking of Evidence Regulation EC 1206/2001. This covered all Members States except Denmark. The operation of applications from the UK under this Regulation was due to finish with the UK’s withdrawal from the EU on 31 January this year. However, it has been preserved for at least one more year courtesy of the European Union (Withdrawal Agreement) Act 2020, section 1. As a result, the Taking of Evidence Regulation continues to apply until the end of the implementation period. In practice and in any event, it seems to have been overlooked and little used, which has been a shame. I did use it successfully soon after it came in 2004, in support of a patent litigation case here in London.

If and when the Taking of Evidence Regulation so far as obtaining assistance from courts in the EU is concerned, and of course courts in most of the rest of world, no longer benefits the UK, we are back to relying on applications under the Hague (Evidence) Convention. There are currently 82 participating states plus the EU. These include the UK, USA, Russia, China and Saudi Arabia, but not Syria, Myanmar, Iran, Iraq and North Korea.

For a start, the applicant for such evidence has to apply to the (English) High Court which may or may not order the issue of a letter of request to the judicial authorities of the country where the witness or documents may be. The request asks the court there to take the evidence of that person or arrange for it to be taken by a special examiner. That examiner may be the requesting judge himself or herself. From an applicant’s point of view, this is not ideal. It also takes time. That examination also takes place in accordance with the procedures in the country where the examination is taking place.

Included in the letter of request is a list of questions, or the subject-matter of questions, to be put to the witness. This last aspect can give rise to controversy and delay.

There is another procedural vehicle which can be used by a litigant, or would-be litigant, in the UK – and indeed by such an applicant in the EU or anywhere else in the world. It relates solely to witnesses and/or documents in the U.S.A. It is enshrined in the US Civil Code as s.1782. The Code is a federal statute that allows the applicant to apply direct to an American court for assistance in obtaining evidence (documents and witnesses) for use in proceedings outside the U.S. in foreign and international tribunals.

This procedure can be useful in any foreign proceedings, including those in civil law countries, such as Germany, the Netherlands, and France where disclosure of documents (or discovery, as it is known in the USA ) does not exist or in only a very limited form. In practice, it provides an advantage for the applicant in international disputes. Unlike the Regulation and the Hague Evidence Convention, the applicant does not have to go through its domestic court; it can go directly to a US judge.

S.1782 empowers a US district court to order a person who resides or “is found” in that district to provide evidence in a proceeding in a foreign or international tribunal. Its scope has become wide, largely as a result of a US Supreme Court decision in a case concerning Intel.

The law relating to s.1782 has remained largely clear and settled since the Intel case was decided in the US Supreme Court in 2004. One area of controversy has been whether s.1782 may be used in aid of international arbitrations. Some, even the majority, of the first instance district courts and the federal appeal courts (the Circuit courts) have decided that it may be used. Others have decided that the Supreme Court’s ruling in Intel did not expressly deal with arbitrations and that such comments that the judges there made were obiter dicta. This may seem strange to some observers: since use for an “international tribunal” is stated in the text for s.1782 (a) , and an arbitration tribunal is indeed usually an international tribunal ; and of course arbitration awards may in some circumstances be reviewed by the relevant national court and are enforceable under the New York Convention.

There are eleven federal appeal courts in the USA each covering separate groups of states. It is clear, for instance, that a s.1782 application in support of any arbitration case to the Ninth Circuit (covering California and adjacent states) will be received positively . However, courts in the Second Circuit (covering just New York State) have issued differing decisions : some for and some against.

Until a case expressly on assistance to arbitration cases goes to the Supreme Court, we cannot be sure what the law is across the whole breadth of the USA. We could wait some time for that to happen. However, some clarity is about to be given in at least the Second Circuit appeal court. There will be a hearing on this very point on 28 February. The appeal has been brought by a company called Hanwei Guo. Its application is for assistance in an arbitration before the China International Economic and Trade Arbitration Commission. Just one month before the first instance hearing, in another case in which an arbitration is being run by the London Court of International Arbitration, the New York District Judge at first instance ruled that the 1782 application did indeed fall within the scope of that section and assistance should be given. That ruling was not appealed.

We will bring further news of s.1782 developments for arbitration cases when we have it. So watch this space!