Section 1782 of Title 28 of the U.S. Code enables district courts to order a person to provide testimony or to produce documents at the request of a foreign “tribunal” for use in a proceeding before that “tribunal.”1 Section 1782, however, leaves the scope of the term “tribunal” open. The question thus arises whether arbitral panels qualify as “tribunals” for purposes of Section 1782. On surveying the case law, one commentator suggested that a “majority” of U.S. courts have held that “at least some species” of international arbitral panels qualify as “tribunals” within the meaning of 1782.2 This assertion does not shed light on when and why a district court might decide that an arbitral panel qualifies as a “tribunal.”
To these latter questions, there are no simple answers. Courts have developed divergent tests for evaluating the status of arbitral panels. The minority position recognizes only public arbitral panels as tribunals; the majority position recognizes both public and private arbitral panels as tribunals for purposes of Section 1782.
