Section 1782 (28 U.S.C. § 1782) was first enacted in 1948 to provide subject matter jurisdiction to a federal court in the United States for a party to obtain certain discovery in the United States district where the person or document or thing may be found, for use "in a foreign or international tribunal." It was last amended in 1996 to add "including criminal investigations conducted before formal accusation" after tribunal. The question has been whether a "foreign or international tribunal" included arbitration proceedings. On March 30, 2020, the Fourth Circuit in Servotronics, Inc. v. The Boeing Company,954 F. 3d. 209 (4^th Cir. 2020) decided that it does, further splitting authority around the country.

The facts are not complicated. A party in a private arbitration in the United Kingdom sought testimony from South Carolina residents for use in the arbitration and brought a proceeding under Section 1782 to obtain subpoenas against three current or former Boeing employees. Citing opinions from the Second and Fifth circuits that held arbitration proceedings were not a foreign or international tribunal, the trial court denied the applications. The Fourth Circuit panel reversed, contending these were decisions that preceded the Supreme Court's decision in Intel Corp. v. Advanced Micro Devices, 542 U.S. 241 (2004), which had permitted a non-judicial body of the European Commission to qualify as a foreign or international tribunal. Intel has been read by advocates for inclusion as broadening the definition, and by opponents as saying it did not apply to private non-judicial bodies. Since Intel, the Second, Fifth and Eleventh circuits continue to exclude private international tribunals by not overturning their pre-Intel decisions. However, since Intel, many district courts have granted discovery under Section 1782 in aid of private arbitrations, and the area remains in contention.

The Fourth Circuit joins the Sixth Circuit, noting that that circuit was the only court of appeals to address the issue since Intel. See In re Application to Obtain Discovery for use in Foreign Proceedings, 939 F. 3d 710 (6^th Cir. 2019). Extensive analysis in Application was spent on defining "tribunal," including analysis of dictionary definitions and how courts referred to tribunals prior to the statute's enactment. The Servotronics court looked to the legal and practical nature of the arbitration being conducted under the rules of the Chartered Institute of Arbitrators, and found the "purpose and function" of Section 1782 entails the U.S. court "effectively acting as a surrogate" for the foreign tribunal, and functions in the same manner as a foreign or domestic arbitration panel, which have authority to order subpoenaed testimony and documents.

The Third Circuit briefly looked at the issue in 2009 but declined to address it as the case had become moot. Within the Third Circuit, on March 17, 2020, a federal judge on the Delaware District Court bench in an unreported decision, In re EWE Gasspeicher GmbH, No. CV 19-MC-109-RGA, 2020 WL 1272612 (D. Del. Mar. 17, 2020), held that a private commercial arbitration was not a tribunal under the statute. New Jersey district courts that have dealt with the issue have resolved it on whether the arbitration tribunal had public roots, and seem to have relied on the Second Circuit position, so there is no head on the nail disposition.

As commercial arbitration in general, and international arbitration in particular, continues to expand in popularity as a means of dispute resolution, and the borders become more fluid in terms of where people, documents and things are located at any given time, it is not sensible to have courts and litigations spending so much time and money to debate the meaning of this single term. It is a question of what Congress means. Congress already amended the statute to include a particular tribunal and eliminate ambiguity.

This has waited long enough for Supreme Court resolution. It has been reported that one of the defendants has or will file a petition for certiorari. Given the amount of litigation engendered, and a circuit split, the Supreme Court should grant certiorari, affirm Servotronics, and rule that private arbitral panels are tribunals within the meaning of the statute. If certiorari is not granted, Congress should act to specify private arbitration panels are included as foreign proceedings and tribunals.