As discussed above, Section 1782 “authorizes, but does not require, a federal district court to provide judicial assistance to foreign or international tribunals or to ‘interested persons’ in proceedings abroad.” In order for the court to grant such judicial assistance, three statutory requirements must first be met:
(1) the person from whom discovery is sought “resides or is found” in the district of the application;
(2) the discovery is “for use in a proceeding in a foreign or intentional tribunal;” and,
(3) the request is made by an “interested person”, pursuant to a letter rogatory, or by the foreign or intentional tribunal in which the discovery will be used.
It is the second factor that has been the focus of the question of whether Section 1782 may be used in aid of international arbitration. More specifically, is an international arbitration tribunal the type of tribunal that falls under Section 1782? And, secondarily, should that question be answered differently depending on whether the arbitration in question is a commercial arbitration, as distinguished from a treaty (or investor state) arbitration?