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In the world of international arbitration, where document disclosure is already relatively limited compared to practices in federal and state court, 28 U.S.C. § 1782 — titled “Assistance to foreign and international tribunals and to litigants before such tribunals” — has been a commonly overlooked tool for obtaining useful evidence in support of an international arbitration. In broad strokes, the statute permits a federal district court to require a person within the district to provide documents or testimony for use in a proceeding in a “foreign or international tribunal.”
Historically, as a result of precedent from multiple U.S. courts of appeal, the U.S. courts have interpreted the term “foreign or international tribunal” to exclude private commercial arbitral tribunals — thus, limiting the impact that § 1782 might otherwise have on international commercial arbitration proceedings. However, the U.S. Court of Appeals for the Sixth Circuit recently broke from its sister circuits in the case of Abdul Latif Jameel Transportation Co. v. FedEx Corp., holding that the term “foreign and international tribunal” included private commercial arbitral tribunals. In doing so, not only has the Sixth Circuit created a circuit split that is likely to only be resolved by the U.S. Supreme Court, as explained in this post, the court’s expansion of the scope of § 1782 may have significant consequences for international arbitration.