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What Is a “Tribunal”? Circuit Courts Disagree

Sunu M Pillai


  • Section 1782(a) allows district courts to order individuals to provide testimony or documents for use in foreign or international proceedings, without specifying the meaning of "foreign or international tribunal."
  • The Supreme Court's only interpretation of section 1782 in Intel determined certain quasi-judicial agencies qualify as tribunals but did not address whether private international arbitration panels fall under this definition.
  • The Fourth and Sixth Circuits held that private arbitration panels are “tribunals” under section 1782(a), while the Second Circuit has reiterated its prior holding that they are not.
What Is a “Tribunal”? Circuit Courts Disagree
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Does a private international arbitration panel qualify as a “foreign or international tribunal” under 28 U.S.C. § 1782(a)? Three circuit courts have now addressed this question within the past year with differing results. The Fourth and Sixth Circuits held that private arbitration panels are “tribunals” under section 1782(a), while the Second Circuit reiterated its prior holding that they are not. 

Section 1782(a) provides that “[t]he district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation.” The pre-1964 version of this statute had contained the phrase “in any judicial proceeding pending in any court in a foreign country.” Neither the phrase “foreign or international tribunal” nor the word “tribunal” is defined in the statute.

The only Supreme Court case to address section 1782 was Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), which clarified numerous aspects of the statute. Adopting a functional approach, the Court held that that the Directorate General for Competition of the Commission of the European Communities, a public and quasi-judicial agency with a proof-gathering function, qualifies as a tribunal to the extent that it acts as a first-instance decision maker, with its decisions reviewed by the courts. The Court did not address the question of whether a private international arbitration tribunal qualifies as a “tribunal” under section 1782. It made a passing reference in dicta to this issue, in a footnote referencing an article by one of the authors of the 1964 statute, stating that “[t]he term ‘tribunal’ . . . includes investigating magistrates, administrative and arbitral tribunals, and quasi-judicial agencies, as well as conventional civil, commercial, criminal, and administrative courts.”

Prior to Intel, the issue of whether a private international arbitration tribunal qualifies as a “tribunal” under section 1782 was first addressed by the Second Circuit in National Broadcasting Co. v. Bear Stearns & Co. (NBC). The Fifth Circuit also addressed the issue in Republic of Kazakhstan v. Biedermann International. Both courts held that section 1782 applies only to governmental or intergovernmental arbitral tribunals, conventional courts, and other state-sponsored adjudicatory bodies. Following Intel, district courts took diverging approaches to the issue. The Fifth Circuit reiterated its position in a non-precedential opinion in 2009. No other circuit court had considered the issue until 2019.

The Sixth Circuit Holds That Private Arbitration Panels Are Included in the Term “Tribunal”

In September 2019, the Sixth Circuit, in Abdul Latif Jameel Transportation Co. v. FedEx Corp., followed a textual analysis in arriving at its decision that private arbitration panels are included in the term “tribunal.” It first noted that neither “foreign tribunal” nor “international tribunal” is a term of art with any specialized meaning. The court focused on the meaning of “tribunal” because there was no dispute that the arbitration panel was “foreign” or “international” in nature. It first looked at dictionary definitions and found that while some definitions included private arbitrations, others excluded such proceedings. Because dictionaries left room for interpretation, the court reviewed the usage of the word “tribunal” by U.S. jurists, lawyers, and courts, and found that they have used the word in its broader sense to include private arbitral panels. The court concluded that other uses of the word in the statute do not dictate a more limited reading. Based on these, the court held that the statutory language provides a clear answer and that the court did not need look any further to hold that private arbitration panels are included in the phrase “foreign or international tribunal.”

The court acknowledged that the Second and Fifth Circuits had previously concluded that “tribunal” includes only governmental or intergovernmental arbitral tribunals and conventional courts and other state-sponsored adjudicatory bodies. It noted that these circuits arrived at this conclusion after considering the legislative history and policy issues, but the Sixth Court disagreed that legislative history is required to resolve the scope of the word in the statute. It held that the next step, after finding the dictionary definition to be ambiguous, should have been to determine the courts’ long-standing usage of the word, rather than to turn to legislative history. The court also questioned the reliability of legislative history as an indicator of statutory meaning, though it acknowledged that legislative history is a helpful aid in some cases. It further found that the legislative history did not contradict the court’s decision based on the usage of the word “tribunal.” In its view, the legislative history only clarified Congress’s intent to expand section 1782(a)’s applicability, and any further inferences based on an absence of congressional intent in the legislative history relied on speculation.

While the court followed a textual analysis, neither the dictionary definitions nor the usage of the word in other parts of the statute provided a clear answer. The court’s decision ultimately relied on the usage of the word “tribunal” by U.S. jurists, lawyers, and courts in other contexts. In arriving at its decision, the court prioritized the usage of the word in other contexts over the legislative history of the statute. It also refused to rely on the legislative history’s silence with respect to private tribunals and termed any conclusions based on this silence as speculation.

The Fourth Circuit Agrees on a Different Basis

The Fourth Circuit, in Servotronics, Inc. v. Boeing Co., a case that involved an arbitration panel in the United Kingdom (U.K.), concluded that private arbitration panels are included in the definition of the word “tribunal.” The court reached its decision based on its conclusion that arbitrations are a product of government-conferred authority, not just the parties’ private agreements, citing the Federal Arbitration Act in the U.S. and the U.K. Arbitration Act of 1996. The court held that even if it were to apply the more restrictive definition of “foreign or international tribunal” adopted by the Second and Fifth Circuits, the U.K. arbitral panel met that definition.

The court thus did not disagree with either the Sixth Circuit or the Second and Fifth Circuits. Rather, it found an alternative basis to hold that discovery under section 1782(a) is available for private international arbitrations.

The Second Circuit Reiterates Its Position

In July 2020, the Second Circuit, in In re Guo, reiterated its position in NBC that section 1782 does not apply to private arbitration panels. The court first noted that the Fourth and Sixth Circuits’ decisions were not based on any finding that Intel undermined the reasoning in NBC. It held that Intel’s indirect reference to “arbitral tribunals” can be read consistently with NBC as referring solely to state-sponsored arbitral bodies. The court agreed with the Sixth Circuit that the phrase “foreign or international tribunal” was ambiguous as to the inclusion of private arbitrations and that the statute’s introduction of the word “tribunal” was intended to expand the types of proceedings in which assistance would be available. However, relying on legislative history that showed an absence of a clear indication of congressional intent, it reiterated its holding in NBC that this expansion did not extend to private arbitrations. It concluded that “NBC’s thorough analysis, which began with a threshold finding of ambiguity before turning to legislative history and purpose to elucidate the meaning of the statutory language, comports with both Intel’s reiteration of broad principles and its specific analysis of § 1782.”

The Second Circuit agreed with the Sixth Circuit that the statutory language is ambiguous. The difference in results is due to the next step of statutory construction when the language is found to be ambiguous, i.e., whether to rely on legislative history or general usage of the term. While the Second Circuit refused to expand the meaning of the term “tribunal” in the absence of clear congressional intent as shown through legislative history, the Sixth Circuit considered any decision based on an absence of congressional intent in the legislative history as speculation and instead relied on the general usage of the term.

The Second Circuit noted that its prior precedent can be overruled only by the court sitting en banc or by the Supreme Court. This leaves open the possibility of a different outcome, if a rehearing en banc is sought.


In the absence of clarification from the Supreme Court, parties will continue to face uncertainties regarding the discovery available for private international arbitrations under section 1782. In addition to the split in opinion among the circuits, the position remains unclear in other circuits, with district courts reaching diverging results.