Under Section 1782 of Title 28 of the United States Code, parties may apply in United States federal district courts to obtain discovery for use in a proceeding in a foreign or international tribunal. Federal Circuit Courts of Appeal have wrestled with the issue of whether a foreign arbitration qualifies as a “foreign or international tribunal” under the statute. The Second and Fifth Circuits, for example, have ruled that foreign and international arbitral tribunals do not qualify under Section 1782. However, the Eleventh Circuit, until very recently, had ruled that a foreign arbitral tribunal did qualify under Section 1782. The federal district courts in many other U.S. jurisdictions that are not bound by Circuit precedent have issued rulings going either way, and in some cases have drawn a distinction favoring Section 1782 relief for international investment treaty arbitration as opposed to purely private international commercial arbitration.
On 10 January 2014, the United States Court of Appeals for the Eleventh Circuit, which encompasses Florida, Georgia and Alabama, vacated its prior opinion which had held that a foreign arbitration falls within the scope of Section 1782 (Application of Consorcio Ecuatoriano de Telecomunicaciones, S.A., Case (CONECEL II) vacating Application of Consorcio Ecuatoriano de Telecomunicaciones (CONECEL I).
In CONECEL I, the Eleventh Circuit held that the pending arbitration proceeding before the Center for Arbitration and Conciliation of the Guayaquil Chamber of Commerce was a “proceeding in a foreign or international tribunal” as contemplated by Section 1782. The Court did not rule on the applicant’s alternative theory that the evidence was sought for use in “contemplated” civil collusion proceedings in Ecuador. In so holding, CONECEL I was guided by the United States Supreme Court decision in Intel Corp. v. Advanced Micro Devices, Inc, which emphasized the legislative history and breadth of the statutory term “tribunal” and suggested that courts examine the nature of the arbitral body at issue to determine whether it functions as a “foreign tribunal” for purposes of Section 1782.
In CONECEL II, however, the Court explicitly vacated this ruling and “decline[d] to answer this substantial question on the sparse record found in this case.” The Eleventh Circuit nevertheless affirmed the lower court’s grant of Section 1782 relief on the alternative theory that reasonably contemplated civil collusion proceedings qualified as a “proceeding in a foreign or international tribunal” under Section 1782.
In this sense, the Eleventh Circuit, instead of making a determination on whether a foreign arbitration tribunal qualifies as a “tribunal” under Section 1782, has left the resolution of that question for another day. As the statute’s boundaries are not clear for the majority of federal district courts across the nation, those seeking discovery in the U.S. for use in a foreign or international tribunal must carefully study and monitor developments in the law of the jurisdiction in which the documents, statements or other testimony are sought. Failure to take into account the most recent developments in the law could lead to wasted efforts and legal expense. A discovery plan and litigation strategy must be specifically tailored to the current law of those jurisdictions where the evidence is believed to be found.