Federal law authorizes district courts to order discovery for use in a proceeding before a "foreign or international tribunal." While that law, 28 U.S.C. § 1782, permits interested persons to request such discovery, neither the statutory language nor Supreme Court jurisprudence definitively resolves whether private arbitral tribunals fall within its scope. Unsurprisingly, the lack of clear guidance on this matter has triggered a circuit split, with the Second and Fifth Circuits generally declining to extend § 1782 to private arbitral tribunals while the Fourth and Sixth Circuits broadly interpret the statutory language to apply § 1782 to private arbitral tribunals. In the Eleventh Circuit, the doctrine is in flux.

A recent Second Circuit decision, In re Guo, has exacerbated this inter-circuit disagreement. Guo held that the China International Economic and Trade Arbitration (CIETAC) falls outside the scope of § 1782 because it is a private arbitral body, thereby affirming prior circuit precedent. However, the Second Circuit's reasoning has evolved because Guo employed a "functional analysis test," descriptively similar to (though substantively different from) a test employed in the Eleventh Circuit. Guo's reasoning will inform future litigation over § 1782 requests for use in private arbitral tribunals and whether, under the functional analysis, tribunals formed pursuant to bilateral investment treaties warrant a different outcome.