28 U.S.C. § 1782 — Application to International Arbitration

Does 28 U.S.C. § 1782(a) authorize discovery for use in a private international arbitration? Prior to the Supreme Court’s decision in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), it was well-settled that a private international arbitration tribunal was not ‛a foreign or international tribunal“ within § 1782. Intel, however, relied heavily on the views of Professor Hans Smit, and Professor Smit is of the opinion that that ‛tribunal“ in § 1782(a) ‛includes ... arbitral tribunals.“ Smit, International Litigation under the United States Code, 65 COLUM. L. REV. 1015, 1026-27 (1965)). Perhaps more important, that language was quoted by the Intel Court. Id. at 258. But the reference to arbitration was not central to the Intel decision (which did not involve an arbitral tribunal). As noted by the Atlanta Federal District Court earlier this month, the issue of § 1782’s application to private international arbitration remains unaddressed by any court and ‛an issue of first impression“ post-Intel. In re Roz Trading Ltd., 2007 U.S. Dist. LEXIS 2112 (N.D. Ga. Jan. 11, 2007) (noting but not deciding the issue).

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