The Growing Circuit Split About § 1782 – Can It Be Used For Private Arbitration?

With the uptick in cross-border trade in recent years, the US courts have seen a marked increase in the number of applications under 28 USC § 1782. Section 1782 permits district courts to authorize certain persons to gather evidence in the United States to use in legal proceedings abroad. But can § 1782 be used to gather evidence in support of private arbitrations? The circuits are split.

The Second and Fifth Circuits in 1999 said no, and were joined this year by the Seventh Circuit. In these courts' view, § 1782 applies only in support of tribunals whose source of authority is one or more governments. So it can be used to obtain evidence for proceedings in courts, regulatory agencies, or arbitral panels created by treaties or international agreements (such as NAFTA or bilateral investment treaties), or by international organizations such as the European Union. But these circuits do not permit § 1782 evidence-gathering in support of arbitration panels