Originally from Alternatives to the High Cost of Litigation

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Twenty-one years ago, both the Second and Fifth U.S Circuit Courts of Appeals decided that the phrase “foreign and international tribunal” in 28 U.S.C. §1782(a) did not include private international arbitration tribunals. Consequently, these cases held that U.S. District Courts could not provide judicial assistance in obtaining evidence for use in private international arbitrations.

Those longstanding cases now have been joined by others, elsewhere, and the result is a circuit split that may be headed for a U.S. Supreme Court hearing.

First, the history. National Broadcasting Co. v. Bear Stearns & Co., 165 F.3d 184, 191 (2nd Cir. 1999) (available at https://bit.ly/2UcWfdq) (referred to below as “NBC”) was decided on Jan. 26, 1999, and soon after, on March 17, 1999, the Fifth Circuit came to the same conclusion excluding private arbitration tribunals from Section 1782 (see text in accompanying box) in Republic of Kazakhstan v. Biedermann Int’l., 168 F.3d 880, 883 (5th Cir. 1999) (available at https://bit.ly/3gViPB0) (“Biedermann”).