Increasingly, with more disputes being required by contract to be resolved through international arbitrations, parties must pursue creative avenues to obtain written discovery and witnesses’ testimony. One such avenue is provided by 28 U.S.C. §1782, which empowers U.S. district courts to provide assistance to foreign and international tribunals by ordering a person residing in the district “to give his testimony or statement or to produce a document for use in a proceeding in a foreign or international tribunal.” A district court is authorized, but not required, to grant an application for discovery or testimony when the application under §1782 shows that: (1) the discovery is sought from a person who resides or is found in the same district as the court to which the application is made, (2) the discovery is for use in a proceeding before a foreign tribunal, and (3) the applicant is a foreign or international tribunal or “interested person.” [FOOTNOTE 1]

The availability of §1782′s resources to applicants has turned on the definition of “tribunal,” and, to some applicants’ frustration, that definition is not viewed uniformly among the district courts. Currently, the courts are split over whether an international private arbitration constitutes a “tribunal” entitled to judicial assistance under §1782. This article examines the implications of that split on the availability of relief under §1782.

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