Originally from Obtaining Evidence for Use in International Tribunals under § 1782, Second Edition

PREVIEW

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.”   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?

I.     UNIFORMITY IN APPLYING SECTION 1782 TO PRIVATE ARBITRATION PRIOR TO INTEL

Prior to the Supreme Court’s Intel decision, courts were generally in agreement that Section 1782 did not apply to private arbitration.   The two circuit courts to consider the issue both held that way.  The Second Circuit spoke to the matter in N.B.C., Inc. (“NBC”) v. Bear Sterns & Co., Inc.  and the Fifth Circuit's decision was Republic of Kazakhstan v. Biedermann Internat’l.   In NBC, a Mexican television broadcasting company, Azteca, had instituted a private commercial arbitration against the broadcasting company NBC that was administered by the International Chamber of Commerce (“ICC”) pursuant to an agreement that the parties had entered into for programming and other services.   The arbitration was seated in Mexico under Mexican law. Prior to the appointment of the arbitration panel, NBC filed an ex parte application pursuant to Section 1782 to serve document subpoenas on six third-party financial institutions for financial information relevant to the arbitration.   The district court initially granted the subpoenas, but then the subpoenas were quashed and NBC appealed the decision to quash.