Two recent appellate cases show that the availability of discovery under 28 U.S.C. § 1782 in private international arbitrations is as unsettled as it has been at any time since the Intel decision. I’m not going to review the first case, GEA Group AG v. Flex-N-Gate Corp. (7th Cir. 2014), in any detail. Judge Posner, in a dictum, notes that it’s not clear whether § 1782 applies to arbitral tribunals:
And GEA must have known that Flex-N-Gate could have asked the distict judge to provide evidence to a “foreign or international tribunal,” as district judges are authorized to do by 28 U.S.C. § 1782; see, e.g., Heraeus Kulzer, GmbH v. Biomet, Inc., 633 F.3d 591, 593 (7th Cir. 2011). The German panel conducting the arbitration between GEA and Flex-N-Gate might be considered such a tribunal. See Consorcio Ecuatoriano de Telecommunicaciones S.A. v. JAS Forwarding (USA), Inc., 685 F.3d 987, 997-98 (11th Cir. 2012). (Or might not—the applicability of section 1782 to evidence sought for use in a foreign arbitration proceeding is uncertain. See S.I. Strong, “Discovery Under 28 U.S.C. § 1782: Distinguishing International Commercial Arbitration and International Investment Arbitration,” 1 Stan. J. Complex Litig. 295 (2013)).
The second case, In re Application of Consorcio Ecuatoriano de Telecomunicaciones S.A. (11th Cir. 2014), is more interesting. In a prior decision—the same decision Judge Posner cited—the Eleventh Circuit, had clearly held that a private arbitral tribunal was a “tribunal” for purposes of § 1782. But in the new decision, the court, on its own motion, withdrew its prior decision and substituted a new decision that reached the same result, but without the necessity of reaching any conclusion about arbitral tribunals a “tribunals” for purposes of the statute. Instead, the court based its decision affirming the decision to grant the § 1782 application on the fact that the applicant was contemplating judicial proceedings in Ecuador.
The upshot? One of the leading cases standing for the proposition that an arbitral tribunal is a “tribunal” under § 1782 is no longer good law. And Judge Posner thinks there’s something to Professor Strong’s doubts on the question.