The case of the day is In re Storag Etzel GmbH (D. Del. 2020). The decision does not give the facts of the case other than to say it is a § 1782 application in aid of a private foreign arbitration. So you can guess what the issue is. And maybe you can guess, from what I’ve just said about the terseness of the opinion, how it came out.

As you know, there are two precedential appellate decisions, Republic of Kazakhstan v. Biedermann International, 168 F.3d 880 (5th Cir. 1999), and NBC v. Bear Stearns & Co., 165 F.3d 184 (2d Cir. 1999), holding that a private international arbitral tribunal is not a “tribunal” within the meaning of § 1782. Both cases predate Intel. In Intel, the Court took a functional approach to deciding what is or is not a tribunal based on what the tribunal does. In 2012, the Eleventh Circuit held that a private tribunal is a tribunal for purposes of the statute, but in a very surprising turn, in 2014 it withdrew the opinion, sua sponte. That is where things stood until very recently.

Last year, both the Sixth Circuit and the Fourth Circuit held that private tribunals are tribunals for purposes of the statute. The current situation, then, is that there is a clear circuit split; that the trend in the new cases is towards treating private arbitral tribunals as tribunals for § 1782 purposes; but that courts outside of the Fourth and Sixth Circuits retain discretion to come out either way.

In today’s decision, the judge held that the statute does not reach private arbitration. The reasoning was less than compelling in my view. Looking at the legislative history, the judge concluded that Congress intended for the statute only to reach judicial and quasi-judicial bodies. Okay. Assuming the judge’s approach to the legislative history and its persuasive force was correct, how do we understand the term “quasi-judicial?” Does it mean “connected with the state?” Or does it mean “engaging in the kind of process and making the kind of decisions that a court makes?” Even if the term requires some connection to the state, how do we treat arbitration, given that it has the imprimatur of the law and a special legal status, fostered and protected by statutes and treaties? So I think the judge’s reasoning begs the question.