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    Wisconsin Lawyer
    November 10, 2020

    Resolving Business Disputes: U.S. Discovery in Aid of International Private Commercial Arbitration

    International commercial arbitration is increasingly important for U.S. lawyers and their clients, including those in Wisconsin. A particular sticking point is discovery, procedures for which differ within and outside the United States.

    Max B. Chester & Charles Niemann

    countries flags

    Suppose one afternoon a subpoena seeking testimony and documents from your client and referencing 28 U.S.C. § 1782 comes across your desk. To your surprise, the subpoena was served on your client in connection with a private arbitration proceeding pending outside the United States. Curious as to why your client may have to produce documents or provide testimony to aid in a proceeding that seemingly has no connection to the United States, you look at the text of the statute and learn that 28 U.S.C. § 1782 provides, in part:

    “(a)The district court of the district in which a person resides or is found may order [the person] to give [the person’s] testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court ….”

    Three opinions issued in 2020 – the Seventh Circuit Court of Appeals’ decision in Servotronics Inc. v. Rolls-Royce PLC, the Fourth Circuit Court of Appeals’ decision in Servotronics Inc. v. Boeing Co., andthe Second Circuit Court of Appeals’ decision in Guo v. Deutsche Bank Securities Inc. (In re Guo) – added to a growing federal court split over the proper interpretation of a “foreign or international tribunal” under 28 U.S.C. § 1782. Because of these decisions, the location of the district court from which the subpoena was issued may very well determine its outcome.

    28 U.S.C. § 1782 allows district courts to order discovery for use in foreign proceedings, and the Fourth Circuit recently joined the Sixth Circuit in holding that the statute applies to international private commercial arbitration, while the Seventh Circuit sided with the Second Circuit, which reaffirmed its view that the statute does not apply to international private commercial arbitration. This article places these recent decisions into context.

    Part I discusses the advantages of international arbitration and explores why it has become the preferred method of international dispute resolution. Part II provides background on the requirements and function of 28 U.S.C. § 1782 and discusses the U.S. Supreme Court’s seminal Intel decision. Part III analyzes the pre-Intel rationale of circuit court decisions holding that section 1782 does not apply to international private arbitration. Part IV discusses the recent Circuit Court of Appeals opinions and the resulting split. Part V analyzes whether these recent decisions have the potential to undermine the core advantages of arbitration.

    Part 1: Arbitration and International Private Commercial Disputes

    Arbitration has become the preferred method of resolving international disputes in recent decades, paralleling the growth of international commerce as a whole.1 The chief reason parties select arbitration is that it is intended to provide a neutral forum and a set of rules that transcend cultural and political norms.

    Max B. ChesterMax B. Chester, Marquette 2001 magna cum laude, is a partner with Foley & Lardner LLP, Milwaukee. He focuses his practice on litigation and arbitration of complex domestic and international commercial business disputes primarily in the areas of insurance and reinsurance, commercial and financial fraud, and the Foreign Corrupt Practices Act.

    Charles (Charlie) NiemannCharles (Charlie) Niemann, Minnesota 2019 magna cum laude, is an associate and litigation lawyer with Foley & Lardner LLP, Milwaukee, in the firm’s Business Litigation & Dispute Resolution Practice. He has served clients in a wide variety of business disputes, including class actions and commercial arbitration.

    Another important reason for selecting arbitration is the relative ease of enforcing arbitral awards under the 1958 New York Convention, which requires signatory countries to give effect to private agreements to arbitrate and enforce arbitral awards issued in other contracting states.2 The New York Convention includes only narrow grounds for state refusal to enforce an award, making it more likely that national courts will recognize and enforce arbitral awards than judgments from foreign courts.3 In contrast, the United States does not have many treaties with other countries for the recognition of court judgments, which makes enforcement of the latter more difficult.

    Other stated advantages of arbitration are confidentiality, efficiency, and cost effectiveness.4 The U.S. Supreme Court has repeatedly endorsed the latter two “twin rationales” and has issued several decisions5 that support the federal policy favoring arbitration evidenced by the Federal Arbitration Act (FAA).6\ Whether arbitration “efficiency and cost effectiveness” actually exist in practice is subject to ongoing debate and is beyond the scope of this article.

    Because arbitration is a creature of contract, parties have control (at least at the contract-drafting phase) over the procedural and substantive rules that the arbitral body will apply, in addition to several other aspects of the proceeding, including which language to use, the number of arbitrators, and whether to select an arbitral institution or proceed ad hoc.7 This flexibility is useful when the parties come from different legal cultures and have different expectations of how disputes should be properly resolved.

    For instance, U.S. litigators may scoff at the possibility of representing a party in an adversary proceeding without conducting documentary discovery and taking depositions of key witnesses. In contrast, most attorneys from the rest of the world would be unfamiliar with broad pretrial discovery (and, especially, depositions) and would not be comfortable including those provisions in arbitration agreements.8 Most international arbitrations, even those with U.S. parties, have zero or very limited discovery (unless the arbitration provision so provides or the arbitration panel so orders, which is rare).9

    Parties to international commercial arbitrations promote “limited discovery” as the norm, except, of course, when they believe obtaining documents and statements from U.S. parties may be beneficial to their cases. Two circuit courts recently held that U.S. district courts can order discovery from persons residing in their district “for use” in foreign private commercial arbitral proceedings under 28 U.S.C. § 1782. This statute is now an important tool for lawyers who encounter international arbitration and should be kept in mind by any U.S. party that might become subject to a request.

    world map

    Part II: 28 U.S.C. § 1782 and the Seminal Intel Decision

    Before 2004, applications under 28 U.S.C. § 1782 were rare, but the growth of international commerce and the U.S. Supreme Court’s Intel decision have spurred an increase in the number of successful applications.10 The statute is titled “Assistance to foreign and international tribunals and to litigants before such tribunals.”

    Four statutory requirements must be satisfied before a district court “may order” a person to provide testimony, documents, or things “for use” in a foreign proceeding.11 First, the “person” (including corporate entities) from whom discovery is sought “resides or is found” in the district where the court sits.12 Second, the request seeks evidence “for use in a foreign or international tribunal.”13 Third, the request is made by a foreign or international tribunal or by “any interested person” to the proceeding.14 Fourth, the material sought is not protected by “any legally applicable privilege.”15

    In Intel, an antitrust complaint against Intel filed with the Directorate-General for Competition of the Commission of the European Communities gave rise to the underlying proceeding.16 Advanced Micro Devices (AMD) filed the antitrust complaint and applied to the U.S. District Court for the Northern District of California for an order seeking potentially relevant documents from Intel. The district court rejected AMD’s application after concluding that the Commission of the European Communities lacked “adjudicatory function” and therefore that the antitrust action was not a “proceeding” under 28 U.S.C. § 1782.

    The Ninth Circuit Court of Appeals reversed the district court’s denial of the order and the U.S. Supreme Court affirmed, holding that the district court had authority under 28 U.S.C. § 1782(a) to entertain AMD’s request.17 The Supreme Court found that all four statutory requirements outlined above were satisfied, and its analysis opened the door for arguments that international arbitrations constitute “proceeding[s] in a foreign or international tribunal.” The Senate Report corresponding to a 1964 amendment of the statute clarified that the replacement of the term “any judicial proceeding” with a broader reference to “proceedings in foreign or international tribunals” was meant to clarify that U.S. court assistance could be provided in administrative and quasi-judicial proceedings abroad.18

    After quoting this Senate Report, the Court cited and parenthetically quoted (in dicta) a law review article by Professor Hans Smit (hereinafter the Smit article), who played a key role in the statutory amendment. Those favoring an expansive view of the term “tribunal” have latched onto this quotation, which states that “[t]he term ‘tribunal’… includes investigating magistrates, administrative and arbitral tribunals, and quasi-judicial agencies, as well as conventional civil, commercial, criminal, and administrative courts.”19

    Aside from the Court’s seeming endorsement of the Smit article’s interpretation of “tribunal” under the statute, there are three other key takeaways from Intel. First, the Court held that there is no categorical bar on district courts ordering production of documents when the foreign tribunal or the “interested person” would not be able to obtain the documents if they were located in the foreign jurisdiction. In other words, there is no blanket “foreign discoverability” requirement. Second, after noting that Congress removed the word “pending” in the 1964 amendments, the Court held that judicial assistance under the statute is not limited to “pending” or “imminent” proceedings.20

    Third, the Court repeatedly emphasized that district courts are not required to grant 28 U.S.C. § 1782 discovery requests merely because they have statutory authority to do so. The Court outlined four factors for district courts to consider after concluding that a discovery applicant has established the threshold statutory requirements of 28 U.S.C. § 1782(a). These factors are:

    • Whether the person from whom discovery is sought is a party to the foreign proceeding, in which case “the need for § 1782(a) aid generally is not as apparent”;

    • The nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance”;

    • Whether the request “conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States”; and

    • Whether the request is “unduly intrusive or burdensome” to the extent that it should either be “trimmed” or rejected outright.21

    These factors have provided much needed guidance for federal district courts, but the Court’s analysis and citation of authorities have not completely clarified the proper scope of 28 U.S.C. § 1782 applicability to international private commercial arbitrations.

    Part III: Pre-Intel Jurisprudence on this Issue Remains Good Law

    Before the seminal Intel decision, two federal courts of appeal had analyzed whether 28 U.S.C. § 1782 applies to international private commercial arbitrations, and both courts held that arbitral bodies are not “tribunals” under the statute.22 The U.S. Supreme Court concluded that the proceeding at issue in Intel was quasi-judicial in nature because the Commission of the European Communities has the power to issue binding decisions, which are appealable in European Union Courts.

    The Intel opinion never specifically addressed private arbitration. Thus, the argument goes that these pre-Intel decisions remain good law,23 and district courts lack discretion to grant discovery for use in international private arbitration because applicants cannot satisfy the threshold requirements of 28 U.S.C. § 1782(a).

    The NBC24 and Biederman25 courts both relied on plain-text interpretation of the statute and found nothing in the legislative history suggesting that Congress intended the statute to apply to private arbitration. The NBC court found telling this lack of evidence in the legislative history because “a significant congressional expansion of American judicial assistance to international arbitral panels created exclusively by private parties would not have been lightly undertaken by Congress without at least a mention of this legislative intention.”26

    The Biederman court similarly found no contemporaneous evidence that Congress contemplated extending 28 U.S.C. § 1782 to the “then-novel arena of international commercial arbitration,” and it held that past judicial interpretations of the term “tribunal” lent additional support to this conclusion.27 The court also noted that references to “arbitral tribunals” in the United States Code almost uniformly concern adjuncts of foreign governments or international agencies.28

    Both courts evaluated the potential extension of 28 U.S.C. § 1782 within the context of federal policy favoring arbitration as a means of dispute resolution and the limited discovery allowed in domestic arbitration under the FAA. The courts found it unlikely that Congress would authorize broader discovery in aid of foreign arbitration than is provided under FAA § 7, which permits the arbitral panel but not all “interested parties” to issue subpoenas for documents and testimony for use in the arbitral proceeding. Further, FAA § 7 only requires federal courts to enforce arbitrators’ summonses within the federal district in which the arbitrator (or the panel) is sitting.29

    The NBC court noted that these differences in discovery could “create an entirely new category of disputes concerning the appointment of arbitrators and the characterization of arbitration disputes as domestic, foreign, or international.”30 Both decisions expressed concern that extension of 28 U.S.C. § 1782 discovery to international arbitration could undercut its main advantages of efficiency and cost effectiveness, replacing these characteristics with “fighting over burdensome discovery requests far from the place of arbitration.”31

    Also of Interest

    International Practice Section Promotes Understanding, Expertise

    The State Bar of Wisconsin International Practice Section is devoted to issues affecting the international practice of law, promoting an understanding of and expertise in public and private international law, monitoring relevant legislative and judicial developments, and providing a forum for the exchange of ideas among practitioners, academics, and law students interested in international law and practice.

    For more information and to join, visit

    Part IV: Recent Decisions Have Created a Circuit Split

    Servotronics Inc. v. Rolls-Royce PLC. The Intel decision opened the door to a more expansive reading of 28 U.S.C. § 1782, and the Fourth and Sixth Circuit Courts of Appeal have now held that a foreign arbitral panel is a “foreign or international tribunal” under the statute.32 However, shortly before publication of this article, the Seventh Circuit firmly rejected the Fourth and Sixth Circuits’ analysis in an opinion authored by Judge Sykes, holding that 28 U.S.C. § 1782 does not apply to private commercial arbitration.33

    In the Seventh Circuit case, Servotronics obtained a subpoena out of the District Court for the Northern District of Illinois compelling Boeing to produce documents in connection with a private commercial arbitration in the United Kingdom between Servotronics and Rolls-Royce, in which Rolls-Royce sought indemnification from Servotronics, claiming that its valve was responsible for fire damage to a Boeing engine. Boeing opposed Servotronics’ 28 U.S.C. § 1782 application, causing the district court judge to reverse course and quash the subpoena after initially granting the application. On appeal, the Seventh Circuit affirmed and gave four reasons for siding with the NBC and Biederman courts rather than recent decisions holding that 28 U.S.C. § 1782 authorizes U.S. discovery for use in a private international commercial arbitration. 

    First, the court noted that the term “tribunal” is not defined in the statute, and that dictionary definitions are inconclusive in evaluating whether private arbitration panels should be considered tribunals.34 Because this text-based interpretive approach was not dispositive, the court looked to the statutory context and “statutory charge” given to the Commission on International Rules of Judicial Procedure, a study group whose work led to the proposed language of 28 U.S.C. § 1782. “Noticeably absent from this statutory charge is any instruction to study and recommend improvements in judicial assistance to private foreign arbitration.” Further, the court looked at the meaning of the phrase “foreign or international tribunal” in related statutes pertaining to letters rogatory and service of process in foreign litigation. Both statutes relate to comity between governments, suggesting that the phrase is best understood to mean “state-sponsored tribunals” and to exclude private arbitration panels.35

    Next, the court turned to the “serious” conflict between 28 U.S.C. § 1782 and the FAA that a broad reading of “international tribunal” would create. Under the FAA, the arbitration panel, but not the parties, can summon witnesses to testify and produce documents, and can petition the district court to enforce the summons.36 In contrast, 28 U.S.C. § 1782 allows tribunals, litigants, and “interested persons” to obtain discovery orders from the district court. The court concluded that it would be difficult to conjure a rationale for the result under the expansive reading where “litigants in foreign arbitrations would have access to much more expansive discovery than litigants in domestic arbitrations.”37

    Lastly, the court turned to Intel and its analysis of 28 U.S.C. § 1782’s legislative history. Specifically, the court touched on the parenthetical quotation of Professor Smit that was found persuasive in the Fourth and Sixth Circuit decisions discussed further below, finding it unlikely that “the Court, by quoting a law-review article in a passing parenthetical, was signaling its view that § 1782(a) authorizes district courts to provide discovery assistance in private foreign arbitrations.”38

    Servotronics Inc. v. Boeing Co.  Earlier this year, the Fourth Circuit heard an appeal in connection with a 28 U.S.C. § 1782 application for the same arbitral proceeding between Servotronics and Rolls-Royce.39 The court reached the opposite conclusion of the Seventh Circuit, reversed the district court’s ruling that the arbitral panel was not a “foreign tribunal” for purposes of 28 U.S.C. § 1782, and remanded so the district court could conduct further proceedings on Servotronics’ application. The Fourth Circuit court concluded that the statute’s plain language and legislative history, as analyzed by the Supreme Court in Intel, manifests Congressional intent to expand the scope of U.S. assistance in resolving foreign disputes. The Fourth Circuit noted that the 1964 amendments removed the words “‘in any judicial proceeding pending in any court in a foreign country’ and replaced them with the phrase ‘in a proceeding in a foreign or international tribunal.’”40

    The Fourth Circuit also cited and parenthetically quoted the Smit article that the Supreme Court relied on (in dicta) in Intel. In holding that an “international tribunal” includes private arbitration, the Fourth Circuit concluded that Boeing’s arguments reflected too narrow an understanding of the term “tribunal” and of arbitration itself.

    The Fourth Circuit explained that the FAA, which provides less government regulation and oversight than the analogous UK Arbitration Act, does involve the government because it requires courts to compel arbitration, oversee proceedings, issue summonses, and ultimately enforce arbitral awards. The court therefore concluded that the UK arbitral tribunal would meet the more restrictive definition of “foreign or international tribunal” advanced by Boeing, even if the court applied the definition. In reaching this conclusion, the court expressed disapproval of a definition of “tribunal” that would only include “entities acting with the authority of the State.”41 Under the Fourth and Sixth Circuits’42 holdings, district courts in these circuits now have discretion to order discovery from persons residing in the district for use in private international arbitration.

    Guo v. Deutsche Bank Sec. Inc. (In re Guo). On July 8, 2020, the U.S. Court of Appeals for the Second Circuit held that 28 U.S.C. § 1782 does not extend to private international commercial arbitrations.43 In so doing, the Second Circuit confirmed that its prior decision in NBC on this issue is still good law in the circuit and has not been undermined by the Supreme Court’s decision in Intel.

    In reaffirming its 1999 holding in NBC that 28 U.S.C. § 1782 does not apply to private international commercial arbitrations, the Second Circuit pointed to its prior conclusion that the phrase “foreign or international tribunal” in the statute had been introduced for the purpose of expanding the original formulation, which provided for assistance only with respect to proceedings in any court in a foreign country. The Second Circuit also pointed to the absence of any reference to private arbitration in the House and Senate reports.

    The court found it compelling that the phrase “international tribunal” in 28 U.S.C. § 1782 came directly from 22 U.S.C. §§ 270-270g, statutes that apply only to “intergovernmental tribunals.” The Second Circuit pointed out that the tribunal at issue in Intel was intergovernmental – the Directorate General-Competition of the Commission of the European Communities –  and that the Supreme Court never dealt with an issue determining whether a private international arbitration tribunal qualifies under 28 U.S.C. § 1782. The Second Circuit concluded that the Supreme Court’s parenthetical quotation of a footnote in the Smit article, setting forth the proposition that “[t]he term tribunal … includes arbitral tribunals,” could not sufficiently undermine its 1999 decision of precedential force in NBC.44

    Having concluded that 28 U.S.C. § 1782 does not apply to private international commercial arbitration, the Second Circuit analyzed whether the China International Economic and Trade Arbitration Commission (CIETAC), before which the underlying dispute was pending, qualified as a private tribunal. Using a functional approach adopted by Intel, the Second Circuit concluded that CIETAC is indeed a private tribunal because it is not directed and governed by the Chinese government, the jurisdiction of the panel derives exclusively from the parties’ agreement, the arbitrators are not appointed by the government, and the government does not intervene to alter the outcome of the arbitration after the panel has rendered a decision.

    Wisconsin. No Wisconsin courts have addressed the applicability of 28 U.S.C. § 1782 to private arbitral proceedings, but the Seventh Circuit’s decision in Servotronics is now binding in this circuit.

    Part V: Discovery Under 28 U.S.C. § 1782: A ‘Runaway Train’?

    The Fourth and Sixth Circuits’ decisions might have the potential to undermine international arbitration’s “norm” by permitting limitless discovery and generating tedious discovery disputes with U.S. parties. However, there is good reason to believe that there are sufficient guardrails in place to prevent 28 U.S.C. § 1782 from becoming a runaway train that undermines one of the central tenets of international arbitration.

    District court analysis under 28 U.S.C. § 1782 is a two-step process. First, the statutory requirements of 28 U.S.C. § 1782 must be satisfied, and given the circuit split, the threshold issue often will be whether the proceeding at issue is taking place before a “foreign or international tribunal.”45

    If the statutory requirements are met, courts then engage in a discretionary analysis guided by the four Intel factors, which include whether the foreign tribunal would be receptive to U.S. federal court judicial interference. This factor is often outcome determinative, and courts do not look kindly on parties to foreign proceedings who attempt to circumvent a tribunal’s authority by requesting court assistance under 28 U.S.C. § 1782.46 It is therefore difficult to imagine a scenario in which a district court would grant discovery when the parties to an arbitration have agreed to limited discovery or the tribunal would be unreceptive to court assistance.

    The courts in Servotronics (4th Circuit) and Intel emphasized that 28 U.S.C. § 1782 discovery is not mandatory and will be limited by district court discretion. The Fourth Circuit reasoned that district courts function “effectively as surrogates” for foreign tribunals in evaluating whether to grant discovery “for use” in foreign proceedings. In performing this surrogacy function, district courts should keep the purposes of international arbitration in mind, because the Intel factors disfavor attempts to avoid foreign restrictions on broad pretrial discovery. Whether district courts will faithfully apply the Intel factors remains an open question, but the discretionary guidelines laid out by the Supreme Court and the plain text of 28 U.S.C. § 1782 should avert limitless expansion of discovery rights.


    The circuit split, the importance of international arbitration, and the U.S. Supreme Court’s recent history of ruling on arbitration matters in almost every term will likely land the issue of 28 U.S.C. § 1782 applicability to international private commercial arbitrations for review in the nation’s highest court. For now, parties to foreign arbitral proceedings will advance the arguments for discovery from the U.S. parties whenever such discovery may be advantageous to the claims in the foreign proceedings. The U.S. parties, in turn, should carefully consider the precedent in the circuit where they are located and craft arguments against discovery consistent with the discretion retained by the district courts.

    Meet Our Contributors

    What led you to the practice of law?

    Charles (Charlie) NiemannWhen I was an undergraduate student at UW-Madison, I took a class on criminal law and justice with Professor Irene Katele during my sophomore year. I was taking mostly science classes at the time and thought I would pursue medical school, but the course piqued my interest in the law. I found analyzing judicial opinions to be stimulating, and I enjoyed the intellectual challenge of breaking down the elements of a crime and making arguments on either side.

    Throughout the remainder of my undergraduate education, I was inspired by a number of other great professors in the Legal Studies and Political Science departments and knew that law school was right for me.

    As lawyers, we also have an incredible opportunity to help our clients and give back to the community. This obligation and privilege also played a big role in my decision to become a lawyer.

    Charles (Charlie) Niemann, Foley & Lardner LLP, Milwaukee.

    What is one of the greatest accomplishments in your legal career?

    Max B. ChesterIt’s easy to name several accomplishments in business litigation of which I am proud and that I remember fondly (winning a jury trial against the IRS, persuading a California District Court to apply Ukrainian employment law in deciding ownership of a U.S. patent). However, as an immigrant to this country (my family and I came to America from Ukraine as Jewish refugees in 1992), I consider my greatest accomplishment to be one that fundamentally changed the life of a fellow human being who found his way to America’s shores.

    After trial in the Immigration Court, I helped a young man from Iran who converted into Baha’i faith to obtain political asylum in this country. He fled his home after authorities suspected his conversion, hid in trains and trucks, and somehow made it to Manchester, England, from where he flew to Chicago on a fake Italian passport. He was arrested at O’Hare Airport, where he promptly declared that he wanted political asylum in America on account of religious persecution (religious conversion is punishable by death in Iran). He had few papers with him, making it difficult not only to establish his identity but to win his case. But he presented a powerful story, which the court found credible. He now lives in Los Angeles with his wife and children and runs a large gym. Like him, I continue to regard the United States as the best country in the world.

    Max B. Chester, Foley & Lardner LLP, Milwaukee.

    Become a contributor! Are you working on an interesting case? Have a practice tip to share? There are several ways to contribute to Wisconsin Lawyer. To discuss a topic idea, contact Managing Editor Karlé Lester at (800) 444-9404, ext. 6127, or email Check out our writing and submission guidelines.


    1 See, e.g., Ann Robertson & Scott Friedman, Coming to America: The Use of 28 U.S.C. § 1782, 25 J. Arb. Studies 59, 63 n.12 (2015).

    2 9 U.S.C. § 201.

    3 Carolyn B. Lamm & Eckhard R. Hellbeck, When to Arbitrate Rather Than Litigate, ABA Section of Litigation (2013).

    4See S.I. Strong, Discovery Under 28 U.S.C. § 1782: Distinguishing International Commercial Arbitration and International Investment Arbitration, 1 Stan. J. Complex Litig. 295, 302 (2013).

    5See, e.g., AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011); Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010); American Express Co. v. Italian Colors Rest., 570 U.S. 228 (2013).

    6 9 U.S.C. §§ 1-16.

    7 Id.

    8 Paul B. Klaas, Depositions: An Apologia, 25 Arbitration Int’l 553, 553, 559 (2009) (discussing U.S. parties’ expectation that depositions will occur and civil lawyers’ “principled, philosophical objections to US-style depositions”).

    9 Parties in international arbitration typically submit any documentary evidence, witness statements, and expert reports along with their written pleadings. To the extent that discovery occurs, it is usually limited to “narrow and specific” categories, and the party requesting discovery must explain its relevance and materiality to the dispute. Int’l Bar Ass’n, Rules on the Taking of Evidence in International Arbitration, art. 3.3(a), (b), (hereinafter IBA Rules). The IBA Rules are available to the parties as a “compromise” between the broad discovery regime in the United States and the very restrictive one in the rest of the world.

    10 Robertson & Friedman, supra note 1, at 63.

    11 28 U.S.C. § 1782(a).

    12 In re Schlich, 893 F.3d 40, 46 (1st Cir. 2018) (citing and quoting Intel Corp. v. Advanced Micro Devices Inc., 542 U.S. 241 (2004) and 28 U.S.C. § 1782).

    13 Id. The Intel decision clarified the meaning of “tribunal” and “for use” under the statute, but the circuit split discussed later in this article centers on the proper interpretation of the former.

    14 Id.

    15 Id.

    16 Intel Corp., 542 U.S. at 246.

    17 Id. at 246-47.

    18 Id. at 257-58 (quoting S. Rep. No. 1580, 88th Cong., 2d Sess., 7 (1964)).

    19 Id. (quoting Smit, International Litigation 1026-27, and nn. 71, 73) (emphasis added).

    20 Id. at 259.

    21 Schlich, 893 F.3d at 46 (1st Cir. 2018)(quoting Intel and analyzing the Intel factors).

    22 National Broad. Co. v. Bear Stearns & Co., 165 F.3d 184 (2d Cir. 1999); Republic of Kazakhstan v. Biedermann Int’l, 168 F.3d 880 (5th Cir. 1999).

    23 El Paso Corp. v. La Comision Ejecutiva Hidroelectrica Del Rio Lempa, 341 F. App’x 31, 33 (5th Cir. 2009) (rejecting argument that Intel overturned Circuit precedent); In re Dubey, 949 F. Supp. 2d 990, 995 (C.D. Cal. 2013) (concluding that Intel did not overturn precedent holding that private arbitrations do not fall within the scope of § 1782).

    24 National Broad. Co., 165 F.3d 184.

    25 Biedermann, 168 F.3d 880.

    26 National Broad. Co., 165 F.3d at 190 (citing H.R. Rep. No. Rep. No. 88-1580, at 3788-89 (1964)).

    27 Biedermann, 168 F.3d at 882.

    28 Id.

    29 9 U.S.C. § 7.

    30 National Broad. Co., 165 F.3d at 191.

    31 Biedermann, 168 F.3d at 883.

    32 See Servotronics Inc. v. Boeing Co., 954 F.3d 209 (4th Cir. 2020);In re Application to Obtain Discovery for Use in Foreign Proc., 939 F.3d 710 (6th Cir. 2019).

    33 Servotronics Inc. v. Rolls-Royce PLC, No. 19-1847, 2020 WL 5640466 (7th Cir. Sept. 22, 2020).

    34 Id. at *4.

    35 Id. at *5.

    36 9 U.S.C. § 7.

    37 Servotronics, 2020 WL 5640466, at *6.

    38 Id.

    39 After the Northern District of Illinois denied Servotronics’ petition for documentary discovery, Servotronics filed a petition in the South Carolina district court, seeking testimony from several former and current Boeing employees who resided in the district. See In re Servotronics Inc., No. 18-CV-7187, 2019 WL 9698535, at *2 (N.D. Ill. Apr. 22, 2019).

    40 Servotronics Inc. v. Boeing Co., 954 F.3d 209, 213 (4th Cir. 2020).

    41 Id. at 214.

    42 In re Application to Obtain Discovery for Use in Foreign Proceedings, 939 F.3d 710 (6th Cir. 2019). The Sixth Circuit opinion largely mirrors the rationale of the Fourth Circuit in Servotronics, with the Sixth Circuit reasoning that the ordinary meaning of “tribunal” should apply and that the scope of 28 U.S.C. § 1782 is not limited to state-sponsored arbitration. The Sixth Circuit took issue with the Second and Fifth Circuits’ reliance on and interpretation of the statute’s legislative history and rejected policy arguments that a broad interpretation of 28 U.S.C. § 1782 would undermine the central purposes of commercial arbitration or create illogical inconsistency with the FAA.

    43 See Guo v. Deutsche Bank Sec. Inc. (In re Guo), 965 F.3d 96 (2d Cir. 2020).

    44 Id. at 105.

    45 Material sought must be relevant to meet the “for use” prong. See Mees v. Buiter, 793 F.3d 291, 299 n.10 (2d Cir. 2015).

    46 See, e.g., El Paso Corp., 341 F. App’x at 32 (when Swiss arbitral tribunal was unreceptive to 28 U.S.C. § 1782 discovery efforts, district court noted that “even if it did have the authority under 28 U.S.C. § 1782, ‘it would not [grant the application], out of respect for the efficient administration of the Swiss arbitration.’”)

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