Section 1782 allows a district court to order a person who resides in the court’s district to provide testimony or documents to be used in a proceeding before a foreign tribunal. When presented with a section 1782 discovery application, a district court must engage in two inquiries: first, whether the court has authority to grant the application, and second, whether to exercise its discretion to grant the application. As part of the first inquiry, the court must determine whether the foreign body conducting the arbitration qualifies as a “tribunal” under section 1782.
Since the United States Supreme Court decision in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), courts have split on whether private arbitral bodies qualify as a tribunal for purposes of section 1782. In Intel, the Supreme Court discussed the definition of “tribunal” in dicta. A number of courts have relied on this discussion for the proposition that private arbitrations are covered by section 1782. However, in two pre-Intel cases, the Second and Fifth Circuits held that section 1782 does not apply to private arbitrations. Some district courts have stuck to the pre-Intel rule, noting that Intel does not necessarily extend the reach of section 1782 to purely private arbitrations. Of particular note, the Supreme Court’s discussion in Intel did not actually specify whether the term tribunal, as used, in section 1782, included private arbitrations, in addition to state-sponsored arbitrations, or if it only included the latter.
The District Court for South Carolina recently sided with the courts holding that Intel did not expand the scope of section 1782 to apply to purely private arbitrations. As such, the court relied on the Second and Fifth Circuit opinions, which were squarely on point. Those cases noted that “references in the United States Code to ‘arbitral tribunals’ almost uniformly concern an adjunct of a foreign government or international agency” as well as the “silence” of section 1782’s legislative history with regard to whether Congress intended such a “significant … expansion of American judicial assistance to international arbitral panels created exclusively by private parties. . . .” As a result, the court determined that parties to an arbitration before a foreign, private arbitral body may not utilize section 1782 to obtain testimony or documents for use in the foreign arbitration.
However, the court’s determination has been appealed to the Fourth Circuit, so watch this space for further developments.