I. 28 U.S.C. §1782(a) allows US Courts to order the production of evidence ‘for use in a proceeding in a foreign or international tribunal’

A US federal statute, 28 U.S.C. §1782(a), allows a US District Court to order the production of evidence (i.e., documents, testimony, or ‘other thing’) if: (i) an ‘interested person’ or ‘a foreign or international tribunal’ asks the US District Court to order the production of evidence; (ii) the person from whom evidence is sought ‘resides or is found’ in the district where the court is located; and (iii) the evidence requested is ‘for use in a proceeding in a foreign or international tribunal.’1

This is a powerful tool for applicants interested in obtaining evidence in the United States for proceedings in other jurisdictions, because the language of the statute is broad, in that it allows applicants to seek ample yet significant evidence, and because US courts generally grant these requests for evidence.

One issue that remains unsettled under US law, however, is whether §1782(a) can be used to obtain evidence ‘for use’ in a commercial arbitration seated outside the US, i.e., whether a commercial arbitration seated abroad qualifies as ‘a proceeding in a foreign or international tribunal’ as that term is used by §1782(a).2

II. US Courts disagree as to whether a commercial arbitration seated outside the US qualifies as a ‘proceeding in a foreign or international tribunal’ under §1782(a)

In 1999, the Courts of Appeals for the Second and Fifth Circuits held that commercial arbitrations are not; covered by §1782(a).3 As a matter of US law, however, those decisions were binding only on the District Courts located in the Second and Fifth Circuits.4

In 2004, the US Supreme Court decided a closely related issue.5 In Intel, Advanced Micro Devices, Inc. (‘AMD’) had asked the District Court for the Northern District of California, pursuant to §1782(a), to order Intel Corporation—which was based in that court’s district—to produce evidence that AMD sought to use in a proceeding before the then Directorate-General for Competition of the Commission of the European Communities (the ‘EU Commission’).6 After the District Court denied AMD’s application, and the Court of Appeals for the Ninth Circuit reversed the District Court, the case went up to the Supreme Court.

The Supreme Court was called to decide, among other issues, whether the proceeding before the EU Commission qualified as ‘a proceeding in a foreign or international tribunal’ pursuant to §1782(a). The Supreme Court held that it did.7

In support of its decision, the Supreme Court explained that, when it amended §1782(a), Congress understood the term ‘a proceeding in a foreign or international tribunal’ to include not only ‘judicial proceedings’ but also administrative and quasi-judicial proceedings abroad.8 Additionally, the Supreme Court cited with approval academic commentary that explained that ‘the term "tribunal" [as used in §1782(a)] includes investigating magistrates, administrative and arbitral tribunals, and quasi-judicial agencies….’9

Since the Supreme Court decided Intel, it has been settled that the term ‘foreign or international tribunal’ includes proceedings in courts and before administrative and quasi-judicial agencies seated outside the US.10 What the Supreme Court did not address, and remains unsettled, is whether that term also includes commercial arbitrations seated outside of the US.11 Interestingly, courts on both sides of the issue point to Intel as support for their position.

Specifically, since Intel, some courts have held that a commercial arbitration seated outside the United States is a ‘proceeding in a foreign or international tribunal,’ among other reasons, because (i) the express terms of §1782(a) cover ‘tribunals,’ which includes arbitration tribunals;12 (ii) in Intel, the Supreme Court cited with approval commentary that mentions ‘arbitral tribunals’ as examples of what constitutes a ‘tribunal’ under §1782(a);13 and (iii) in Intel, the Supreme Court held that the EU Commission qualified as a ‘tribunal’ because the Commission investigates facts and issues binding decisions that are reviewable by courts, and arbitral tribunals do exactly the same.14

Other courts, however, have held that a commercial arbitration seated abroad is not a ‘proceeding in a foreign or international tribunal,’ and offered the following counter-arguments: (i) the express terms of §1782(a) do not cover commercial arbitrations seated abroad, and the legislative history of §1782(a) shows that when Congress used the word ‘tribunals,’ it was referring only to ‘governmental entities’;15 (ii) when the Supreme Court cited commentary that mentions ‘arbitral tribunals’ as examples of what constitutes a ‘tribunal’ under §1782(a), it did so only in dicta (which is not binding) and, in any event, it was referring only to arbitral tribunals established by countries, not by private parties;16 and (iii) the EU Commission (as analyzed by the Supreme Court in Intel) is not comparable to arbitral tribunals.17

Recently, two Courts of Appeals held that commercial arbitrations seated outside the US are ‘proceeding[s] in a foreign or international tribunal’ as that term is used in §1782(a). These decisions are significant because these are the first Appellate Courts to hold that §1782(a) covers commercial arbitrations seated outside the US.18

III. The Sixth and Fourth Circuits recently held that a commercial arbitration seated outside the US is ‘a proceeding in a foreign or international tribunal’ under §1782(a)

In September 2019, the Court of Appeals for the Sixth Circuit—which encompasses the States of Kentucky, Michigan, Ohio, and Tennessee—became the first Court of Appeals in the US to hold that §1782(a) covers commercial arbitrations seated outside the US.19

Specifically, in Abdul Latif Jameel Transp. Co. Ltd. v. FedEx Corp., a Saudi corporation sought to obtain evidence under §1782(a) from non-party FedEx in Tennessee to use in an international commercial arbitration seated in Dubai against a FedEx affiliate.20 The District Court denied the application, holding that the arbitration in Dubai was not a ‘proceeding in a foreign or international tribunal’ under §1782(a).21 On appeal, the Court of Appeals for the Sixth Circuit reversed, holding that the term ‘foreign or international tribunal’ should be given its ordinary meaning because §1782(a) did not define that term, and that such ordinary meaning includes commercial arbitration tribunals seated outside the US.22

A few months later, in March 2020, the Court of Appeals for the Fourth Circuit—which covers the States of Maryland, North Carolina, South Carolina, Virginia, and West Virginia—followed suit.23 Specifically, in Servotronics, Inc v. Boeing Co., the applicant sought to obtain evidence, under §1782(a), from three South Carolina residents, for use in a commercial arbitration seated in the United Kingdom.24 The District Court for the District of South Carolina denied Servotronics’s application, holding that the commercial arbitration in the United Kingdom was not ‘a proceeding in a foreign or international tribunal.’25

On appeal, the Fourth Circuit reversed, holding that a commercial arbitration seated in the United Kingdom qualifies as ‘a proceeding in a foreign or international tribunal’ under §1782(a). Among other things, the Fourth Circuit reasoned that (i) §1782(a) uses the word ‘tribunal’ to refer to ‘an entity that exercises government-conferred authority’; and (ii) an arbitral tribunal resolving a commercial arbitration in the United Kingdom clearly ‘exercises government-conferred authority,’ as that tribunal is ‘sanctioned, regulated, and overseen by the [UK] government and its courts,’ pursuant to the UK Arbitration Act of 1996.26

Both the Fourth and Sixth Circuits rejected the argument that reading §1782(a) as including a commercial arbitration seated outside the US would open the floodgates to numerous discovery requests in the US, eroding the advantages of arbitration and giving foreign companies an unfair advantage over their American counterparts. What is more, both courts underscored that applicants meeting §1782(a)’s requirements are not automatically entitled to discovery, but, rather, courts have discretion as to whether to order such discovery.27

The Fourth and Sixth Circuit’s holdings are binding on all District Courts in those two Circuits, but not on courts in other Circuits, which may continue to hold that a commercial arbitration seated outside the US is not ‘a proceeding in a foreign or international tribunal’ under §1782(a).28

IV. Conclusion

Pursuant to §1782(a), US District Courts in the Fourth and Sixth Circuits may order a person that resides or is found in the district where the court is located to produce evidence for use in a commercial arbitration seated abroad. Whether courts in other Circuits would also apply §1782(a) this way remains an unsettled issue.

1
The proceeding needs not be pending, but must be at least ‘within reasonable contemplation.’ Intel Corp v. Advanced Micro Devices, Inc., 542 U.S. 241, 243 (2004). Importantly, even if these three conditions are met, the court has discretion, but is not obligated, to grant discovery. See 28 U.S.C. §1782(a) (‘The district court . . . may order . . . ’) (emphasis added). In deciding whether to exercise that discretion, the court must consider several factors, including (i) whether the target of the application is ‘a participant in the foreign proceeding’; (ii) ‘the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance’; (iii) ‘whether the §1782(a) request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States’; and (iv) whether the request is ‘unduly intrusive or burdensome’ in which case it ‘may be rejected or trimmed.’ Intel Corp, 542 U.S. 241, 244-45. See also Restatement (Third) of the Law, U.S. Law of Int’L Com. Arb. § 3.5 (2019) (discussing the discretionary factors).

2
This note does not address whether international commercial arbitrations seated within the US qualify as ‘a proceeding in a[n]…international tribunal’ under §1782(a).

3
Nat’l Broad. Co. Inc. v. Bear Sterns & Co. Inc., 165 F.3d 184, 190 (2nd Cir. 1999) (holding that ‘tribunal’ is limited to ‘governmental or intergovernmental arbitral tribunals and conventional courts and other state-sponsored adjudicatory bodies.’); Republic of Kazakhstan v. Biedermann Int’l, 168 F.3d 880 (5th Cir. 1999).

4
In the United States, a decision by a Circuit Court of Appeals construing a US statute is binding only on the District Courts located in that Circuit. Accordingly, the decision by the Court of Appeals for the Second Circuit was binding only on the District Courts located in the Second Circuit (which covers the States of Connecticut, New York, and Vermont) and the decision by the Court of Appeals for the Fifth Circuit was binding only on the District Courts located in the Fifth Circuit (which covers the States of Louisiana, Mississippi, and Texas).

5
Intel Corp v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004).

6
Id. at 257.

7
Id. at 258.

8
Id.

9
Id.

10
Id. at 249.

11
This is different from whether investor-state arbitrations qualify as ‘a proceeding in a foreign or international tribunal’ under §1782(a), which they do. See, e.g., In re Gov’t of Lao People’s Democratic Republic, No. 1:15-MC-00018, 2016 WL 1389764, at *3, *5-6 (D.N. Mar. I. Apr. 7, 2016) (holding that investor-state arbitrations qualify as an international tribunal under §1782(a)).

12
In re Hallmark Capital Corp., 534 F.Supp.2d 951, 954-56 (D.Minn. 2007); see generally In re Roz Trading Ltd., 469 F.Supp.2d 1221, 1226-28 (N.D. Ga. 2006).

13
In re Roz Trading Ltd., 469 F.Supp.2d at 1228; accord Restatement (Third) of the Law, U.S. Law of Int’l. Com. Arb § 3.5, cmt. b (2019) (explaining that the Supreme Court ‘specifically mentioned “arbitral tribunals” among the types of tribunals to which the statute might apply….’).

14
See e.g., In re Application of Babcock Borsig AG, 583 F. Supp. 2d 233, 238 (D. Mass. 2008) (holding that tribunals in commercial arbitrations share commonalities with the EU Commission analyzed in Intel, as first-instance decision makers with the authority to determine liability and bind the parties), disagreed with by In re Schlich, 893 F.3d 40, 49 (1st Cir. 2018) (disagreeing on different grounds); In re Roz Trading Ltd., 469 F.Supp.2d at 1225 (‘The Centre’s arbitral panels are similarly first-instance decisionmakers that issue decisions both responsive to the complaint and reviewable in court.’).

15
See e.g., In re Application of Grupo Unidos Por El Canal, S.A., No. 14-mc-00226-MSK-KMT, 2015 WL 1810135, at *6 (D. Colo. April 17, 2015) (‘The [Second Circuit] explained that, while Congress expanded the scope of  §1782 in 1964 with the language “foreign or international tribunal,” it did not contemplate that this extended beyond governmental adjudicatory bodies.’).

16
See e.g., In re Hanwei Guo, No. 18-MC-561 (JMF), 2019 WL 917076, at *3 (S.D.N.Y. Feb. 25, 2019) (explaining that Intel’s dictum is not binding); accord In re Application of Gov’t of Lao, 2016 WL 1389764, at *3, *5-6 (D.N. Mar. I. Apr. 7, 2016) (holding that investor-state arbitrations qualify as an international tribunal under §1782(a), but commercial arbitrations do not, because ‘a reasoned distinction can be made between purely private arbitral bodies and governmental arbitration pursuant to BITs.’).

17
See e.g., In re Application of Gov’t of Lao, 2016 WL 1389764, at *5 (‘Intel’s functional analysis defines the type of governmental arbitration subject to §1782, rather than covering every type of international tribunal imaginable.’) (citation omitted); In re Dubey, 949 F.Supp.2d at 993-95, n. 3 (C.D. Cal. 2013); accord In re Operadora DB Mexico, S.A. de C.V., No. 6:09-CV-383-Orl-22GJK, 2009 WL 2423138, at *7 (M.D. Fla. Aug. 4, 2009).

18
In 2012, the Court of Appeals for the Eleventh Circuit had found that a commercial arbitration seated abroad qualified as ‘a proceeding in a foreign or international tribunal’ under §1782(a), see In re Consorcio Ecuatoriano de Telecomunicaciones v. JAS Forwarding (USA), Inc., 685 F.3d 987, 994–97 (11th Cir. 2012), but in 2014 that same Court of Appeals vacated sua sponte its own decision. See Application of Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 747 F.3d 1262 (11th Cir. 2014).

19
Abdul Latif Jameel Transp. Co. Ltd. v. FedEx Corp., 939 F.3d 710, 724-25 (6th Cir. 2019).

20
Id. at 714.

21
The tribunal was operating under the rules of the Dubai International Financial Centre-London Court of International Arbitration (‘DIFC-LCIA’). Id. at 715-16.

22
The court found support for its holding in Intel. See id. at 726.

23
Servotronics, Inc. v. Boeing Co., 954 F.3d 209, 212 (4th Cir. 2020).

24
The arbitration was being conducted under the rules of the Chartered Institute of Arbitrators. See id. at 210-11.

25
See id.

26
See generally id. at 212-16.

27
See supra footnote 1 for the relevant discretionary factors that courts will consider in deciding whether to grant an application pursuant to §1782(a).

28
If the Circuit Courts of Appeals continue to be divided on whether a commercial arbitration seated outside the US is ‘a proceeding in a foreign or international tribunal’ under §1782(a), the Supreme Court may decide to rule on the issue. A decision by the Supreme Court construing §1782(a) would put an end to the split, as it would be binding on all courts in the country.