It is well known that the U.S. discovery process is more onerous than in other common law jurisdictions, such as the UK, and that they in turn, have more onerous obligations that those usually found in international arbitration matters. In fact, one of the advantages touted by advocates of international arbitration is that of the reduced burden of discovery, and therefore, the associated costs.
Therefore, this judgement in the U.S. appears, as discussed by David A. Shargel and Rachel B. Goldman from Bracewell, to potentially give parties involved in international arbitration matters access to U.S.-style discovery in relation to U.S. parties. This could unlock access to documents stored in the U.S. and depositions from U.S. parties for use in these proceedings.
As the authors note, this ruling in Abdul Latif Jameel Transportation Company Limited v. FedEx Corporation was at odds with previous decisions and therefore the matter could be headed to the U.S. Supreme Court. However, in the meantime, this is worth bearing in mind with matters where U.S. parties are involved in international arbitration.
From a data perspective, this is an interesting potential development, as it will need to be considered in a wider range of cases. Obviously, it will not be used in every single case, but neither should it be ignored totally.
In a decision that may significantly increase access to domestic discovery in foreign arbitration proceedings, the United States Court of Appeals for the Sixth Circuit ruled on September 19 that courts may order individuals and entities within the United States to produce documents and provide testimony for use in private commercial arbitrations abroad.