Judicially Assisted Third Party Discovery in Aid of Foreign International Commercial Arbitrations under the Evidence Act 2006

Abstract

International arbitration continues to grow in popularity as an alternative to litigation as entities engaged in international commerce seek to take advantage of the flexibility, autonomy, efficiency and cost-effectiveness that it offers. However a significant gap exists in international arbitration law in that parties to international arbitrations cannot obtain discovery of documents from third parties located outside the judicial jurisdiction of the arbitral seat. This has created a divergence of opinion between District Courts in the United States, a slim majority of whom have considered themselves able to assist foreign international arbitrations with discovery under § 1782 of Title 29 of the United States Code, despite the fact that this provision is unsuited to the narrow limits of discovery as it is understood in international arbitration. This paper argues that New Zealand’s international judicial assistance legislation is much more in tune with international arbitration, and therefore that New Zealand’s courts are well placed to follow the example of the majority of United States courts by interpreting the legislation in a way which allows them to assist international arbitrations as well as international court proceedings.