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Sharpening a split with sister circuits, the Second Circuit has now affirmed its position that private arbitral bodies are not “tribunals” under 28 U.S.C. § 1782. For the time being, then, if your dispute is in international arbitration administered by an entity like the ICC, or a regional arbitral commission, you are prevented from using Section 1782 to obtain testimony or documents located in New York or elsewhere in the Second Circuit.

I suspect this will not be the case for very long: I’ve written before about the likelihood that this question reaches the Supreme Court, noting that two circuits (the Sixth and Fourth) have come down the other way. I noted at the time that the Second Circuit’s prior decision on the question of what type of arbitral body can be a “tribunal” was decided in 1999 — National Broadcasting Company, Inc. v. Bear Stearns & Co., Inc., 165 F.3d 184 (2d Cir. 1999), five years before the Supreme Court’s 2004 decision in Intel Corp. v. Advanced Micro Devices, Inc. 

While Intel gave the Second Circuit good reason to overrule NBC, it chose not to, making a distinction that I’m not sure is all that compelling. The Intel decision determined that the European Union’s Directorate-General for Competition, because of the adjudicative functions it served, was a “tribunal.” The discussion does not leaving much room to distinguish the manner in which a private arbitration functions, including the fact that both the domestic law of many countries (from the UK to China) and treaties acknowledge the validity of arbitration and provide a means of judicial, i.e., state-sanctioned, confirmation.

Nonetheless, in In Re Guo, the Second Circuit doubled-down on its 1999 ruling. Considering an award by the well-known China International Economic and Trade Arbitration Commission (“CIETAC”), it found CIETAC was not a “state-sponsored” arbitration and took pains to separate CIETAC’s functioning from Chinese law and courts:

…the fact that parties to the arbitration in some cases rely on Chinese courts to enforce the “final and binding” arbitration awards is of no import. Joint App’x 683. Otherwise, given that governments around the world commit to enforcing arbitration awards in their courts under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”), the majority of arbitration which takes place abroad would fall within the scope of § 1782, erasing the distinction drawn by NBC. See9 U.S.C. §§ 2, 9; NBC, 165 F.3d at 187 (discussing the New York Convention). The fact that CIETAC panels may ultimately rely on the authority of China to enforce their decisions does not mean that CIETAC arbitration panels are public entities, any more than a corporation becomes a public entity because of its reliance on a given state’s commitment to enforce its contracts or uphold its charter.

965 F.3d at 108.

The analogy here to corporate charters breaks down when one considers that corporations are not typically issuing decisions that are then adopted, in whole or in part, by national courts. Certainly if, and in all probability when, the Supreme Court considers the issue, this discussion of what it means to be state-sponsored will be pivotal. Emerging from it will hopefully be guidelines that will broadly fit most major private international arbitrations conducted under the auspices of national laws reflecting New York Convention principles–and a far broader concept of “tribunal” than the Second Circuit’s.

[The case is In Re Guo, 965 F.3d 96 (2d Cir. 2020), as amended (July 9, 2020).]