A. IntroductionUnder 28 U.S.C. § 1782, a District Court may compel a resident individual or company to provide discovery for use “in a proceeding in a foreign or international tribunal.” There is presently a circuit court split over what qualifies as a “foreign or international tribunal,” including whether Section 1782 can be used to compel discovery in aid of international arbitrations seated abroad.

In recent months, the US Courts of Appeal for the Second, Fourth and Sixth Circuits have issued a number of important and, at times, conflicting decisions related to the scope of discovery in aid of international arbitration under 28 US Code Section 1782. First, on October 7, 2019, the Second Circuit ruled that there is no bar to the extraterritorial application of Section 1782, meaning a party may obtain discovery of documents located outside of the US.

IntroductionOn December 7, 2020, parties and practitioners in international commercial arbitration came one step closer to resolving the threshold question of the applicabilityof 28 U.S.C. § 1782 to international commercial tribunals. Section 1782 is a distinctive procedural device which potentially allows an applicant who is a party to an international commercial arbitration to petition a U.S. federal district court with competent jurisdiction to order the disclosure of documentary or deposition evidence for use in the foreign arbitration proceeding.

Parties to arbitrations seated outside the United States occasionally request that U.S. federal courts order discovery under 28 U.S.C. § 1782 (“Section 1782”), which allows discovery in the United States for use in a proceeding before a “foreign or international tribunal.” The statute does not define what qualifies as a “foreign or international tribunal,” and early appellate decisions were reluctant to stretch the definition to include private commercial arbitration.

The U.S. Supreme Court (SCOTUS) is primed to resolve a decades-old dispute concerning whether 28 U.S.C. § 1782(a) applies to private international arbitrations. Its decision could open a world of discovery options to participants in international commercial arbitration.

A recent decision by the U.S. Court of Appeals for the Seventh Circuit widens an existing circuit court split regarding whether parties may seek discovery in the United States for use in commercial arbitration proceedings seated outside the United States. Under 28 U.S.C. § 1782 (“Section 1782”), a petitioner may obtain evidence through U.S. federal district courts for use in a proceeding before a “foreign or international tribunal.” In Servotronics, Inc. v. Rolls-Royce PLC, No. 19-1847, 2020 WL 5640466 (7th Cir. Sept. 22, 2020), the Seventh Circuit held that a district court may not pursue discovery under Section 1782 for use in private commercial arbitrations.

There has been considerable debate about what qualifies as a “tribunal” under 28 U.S.C. § 1782(a), which enables courts to order discovery from a party or non-party for use in a proceeding before “a foreign or international tribunal.” Recently, the Sixth Circuit held that this provision permits discovery for use in private international commercial arbitrations—a decision that is at odds with other precedents.

Background: Under 28 U.S.C. § 1782(a), a federal district court may order discovery "for use in a proceeding in a foreign or international tribunal" upon application by "any interested person." The text of § 1782 has been at the center of many debates, notably since the United States Supreme Court's decision in Intel Corp. v. Advanced Micro Devices Inc., permitting a foreign litigant to obtain discovery in the U.S. if certain discretionary factors are met. While this statute may appear to apply broadly in all foreign proceedings, including arbitrations, a number of U.S. courts, including the Second and Fifth Circuits, have limited the application of § 1782 to "state-sponsored" arbitration and have thus refused to extend judicial assistance to obtain evidence for use in private international arbitration proceedings.

As the popularity and pace of international arbitration has continued to grow, parties engaged in such arbitration outside the United States have increasingly relied on 28 U.S.C. § 1782 (Section 1782) to obtain discovery in the United States. The U.S. federal circuit courts, however, are divided over whether Section 1782 can be used to obtain information and documents in aid of private international arbitrations, or whether its application is limited to proceedings before foreign courts, foreign quasi-judicial proceedings, and other similar matters.

An important question in international arbitration is whether courts in the United States can order discovery in aid of foreign-seated arbitrations under 28 U.S.C. § 1782 (“Section 1782”). The law in this area is quickly evolving.