U.S. lower courts are increasingly getting involved in international arbitration cases via the authority of 28 U.S.C. §1782. Under §1782, enacted in 1964, a U.S district court “‘may order’ a person residing or found in the district to give testimony or produce documents ‘for use in a proceeding in a foreign or international tribunal … upon the application of any interested person.’” Decisions in the lower federal court are expanding the reach of §1782 to include discovery in aid of private commercial international arbitration. Although both as a linguistic and historical matter, it may be difficult to view a private international arbitration panel as a “foreign or international tribunal” for purposes of §1782, that was the holding of the courts in Abdul Latif Jameel Transp. Co. v. FedEx Corpo. (In re Application to Obtain Discovery for Use in Foreign Proceedings), 939 F.3d 710, 723 (6th Cir. 2019; Servotronics v. Boeing Co., 2020 WL 1501954 (4th Cir. March 30, 2020). (In Servotronics, the Fourth Circuit relied on an additional ground—that under the UK Arbitration Act of 1996, the English arbitration panel in that case was acting with “government-conferred authority” and hence should be treated the same as any other foreign legal proceeding.) Jameel and Servotronics are the first appellate rulings to apply §1782 to international arbitral panels.

Jameel and Servotronics derive some support from the Supreme Court’s recognition in Intel v. Advanced Micro Devices, 542 U.S. 241 (2004), that “Congress introduced the word ‘tribunal’ to ensure that “assistance is not confined to proceedings before conventional courts,” but extends also to ‘administrative and quasi-judicial proceedings.’” S. Rep. No. 1580, 88th Cong., 2d Sess., p. 7 (1964); see H. R. Rep. No. 1052, 88th Cong., 1st Sess., p. 9 (1963). Needless to say, Intel did not deal with the question whether an international arbitration panel is a “foreign or international tribunal” for purposes of §1782.

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