Supreme Court Set To Decide Whether Section 1782 Discovery Can Be Compelled In Foreign-Seated Arbitrations

A. Introduction

Under 28 U.S.C. § 1782, a District Court may compel a resident individual or company to provide discovery for use "in a proceeding in a foreign or international tribunal." There is presently a circuit court split over what qualifies as a "foreign or international tribunal," including whether Section 1782 can be used to compel discovery in aid of international arbitrations seated abroad.

The Supreme Court previously examined the scope of Section 1782 in Intel v. AMD, albeit in a non-arbitration context, where the Court held, in an opinion by Justice Ginsburg, that discovery could be obtained in connection with proceedings before the European Commission's Directorate General for Competition on the basis that the Directorate General exercises "quasi-judicial" powers and acts as a "first-instance decisionmaker."¹ However, the Court left open the question of whether Section 1782 applies to foreign-seated arbitrations. Circuit courts have since relied