Arbitral Tribunals as “Tribunals” Under The Judicial Assistance Statute


Prior to 2004, it was fairly clear that arbitral tribunals were not “tribunals” for purposes of the judicial assistance statute, 28 U.S.C. § 1782, and thus that the statute did not authorize the District Courts to compel discovery in aid of foreign arbitrations. But in light of dicta in Intel Corp. v. Advanced Micro Devices, Inc., a 2004 Supreme Court decision, the district courts have divided on the question. Judges in Massachusetts, Delaware, Minnesota, and the Northern District of Georgia have held that arbitral tribunals are tribunals within the meaning of the statute. Judges in the Northern District of Illinois, the Southern District of Texas, and New Jersey have held the contrary.

In a recent note in the Washington & Lee Law Review, Brandon Hasbrouck argues for the broader construction of the statute. He points to statements by the statute’s principal draftsman, Hans Smit, asserting that the drafters had affirmatively intended to bring within the statute “all bodies with adjudicatory functions.” Hasbrouck recognizes the major practical flaw with his preferred approach, namely that permitting parties access to US pretrial discovery mechanisms is contrary to the expectations of parties who enter into agreements to arbitrate precisely to avoid lengthy and expensive pre-hearing discovery and to avoid litigation in the national courts. But he proposes a multi-factor test, including factors such as the burdensomeness of the discovery and the character of the foreign proceedings, as a way to limit the statute’s impact on international arbitrations. He also proposes amending the statute to require the District Court to make specific findings justifying its exercise of discretion under the statute.

The citation for Hasbrouck’s note is: Brandon Hasbrouck, If It Looks Like A Duck: Private International Arbitral Bodies Are Adjudicatory Tribunals Under 28 U.S.C. § 1782(a), 67 Wash. & Lee L. Rev. 1659 (2010).

In the shameless promotion department: the post-Intel district court cases on both sides of this issue are cited in a recent article I wrote with my colleague Penny Gilbert of Powell & Gilbert in London, which appears in the December 14 edition of CDR’s online newsletter (subscription required).


13 responses to “Arbitral Tribunals as “Tribunals” Under The Judicial Assistance Statute”

  1. […] whether the arbitration likewise was within the scope of the statute. For the reasons I gave in an earlier post, I think the correct construction of the statute should exclude foreign private arbitrations from […]

  2. […] about the scope of the judicial assistance statute we’ve had just in the first week (here and here) suggest to me that arbitration is closely linked to questions of judicial assistance […]

  3. […] or produce documents for use in a proceeding in a foreign or international tribunal. There is a split of authority among the lower courts on whether an arbitral tribunal is a “tribunal” for purposes of […]

  4. […] my post on arbitral tribunals as “tribunals” under the judicial assistance statue, I raised the following objection to the cases holding that an arbitral tribunal is a […]

  5. […] My own view is that we should read the statute to categorically exclude private international arbitral tribunals, because I think it is highly anomalous to give parties to international arbitrations access to the full panoply of US pretrial discovery when we do not do so for parties in domestic arbitrations (but note that Gary Born proposes another solution to the problem). […]

  6. […] not tribunals within the scope of the statute. I have two principal reasons for taking this view. First, granted that the focus on approval of the tribunal takes some of the sting out of the point, I […]

  7. […] private arbitrations). As I wrote in my post on Gary Born’s take on In re Caratube and in an earlier post on arbitral tribunals as “tribunals” for purposes of 28 U.S.C. § 1782, it is anomalous to permit parties to international arbitrations to have free access to US […]

  8. […] arbitrations were inapposite. (Speaking editorially, I think that this is right. I have previously explained why I think the statute should not be read to extend to foreign private arbitrations, but […]

  9. […] “tribunals” for purposes of the judicial assistance statute–a point made on this blog a couple of weeks ago. Her article is worth a read. arbitration, judicial assistance statute […]

  10. […] have previously noted reasons for hesitating before treating private arbitral tribunals as tribunals for purposes of […]

  11. […] have previously noted reasons for hesitating before treating private arbitral tribunals as tribunals for purposes of […]

  12. […] pretty conclusory on this question, one way or the other. The closest looks I’ve taken are here and here. It’s true that some legislative history supports the idea that a private arbitral […]

  13. […] or produce documents for use in a proceeding in a foreign or international tribunal. There is a split of authority among the lower courts on whether an arbitral tribunal is a “tribunal” for purposes of […]

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