Can You Use § 1782 for International Arbitration?

For years, parties in international arbitration used 28 U.S.C. § 1782 to gather evidence located in the United States. In 2022, the U.S. Supreme Court narrowed that path significantly. Here is what changed, what still works, and how to think about your options.

The rule: § 1782 reaches governmental tribunals

Section 1782 allows a U.S. court to order discovery "for use in a proceeding in a foreign or international tribunal." The whole question for arbitration is what counts as a "tribunal."

In ZF Automotive US, Inc. v. Luxshare, Ltd. (2022), the Supreme Court held that the phrase means a governmental or intergovernmental adjudicative body — a body that exercises governmental authority. A private arbitral panel that the parties created by contract is not a governmental tribunal. As a result, § 1782 is generally not available to obtain evidence for a private international commercial arbitration.

What still qualifies

• Foreign court litigation. A lawsuit in a national court abroad is squarely within § 1782.
• Foreign government and regulatory proceedings. Investigations or adjudications by a government body are governmental tribunals and can qualify.
• Certain inter-governmental bodies. Adjudicative bodies that exercise governmental authority conferred by nations may qualify; this is fact-specific.

Paths that may still work for an arbitration-related dispute

Even when your core dispute is in private arbitration, U.S. evidence may still be reachable through a connected proceeding:

• Related court actions. Disputes around arbitration frequently spawn court proceedings — to compel or stay arbitration, to obtain interim relief, or to enforce or set aside an award. A genuine foreign court proceeding can be a qualifying tribunal.
• Parallel litigation. The same facts may be the subject of a separate civil suit abroad that does qualify.
• Enforcement. Once you have an award, enforcing it abroad — and tracing assets to satisfy it — can involve qualifying court proceedings. (See enforcing a foreign judgment with § 1782.)

Whether any of these fits depends on the specific structure of your dispute and the jurisdictions involved. This is exactly the kind of threshold question worth checking before spending on an application.

How to evaluate your situation

Three questions drive the analysis:

1. What kind of proceeding is it? Private commercial arbitration, a foreign court case, or a government/regulatory matter?
2. Is there a related court proceeding — actual or reasonably contemplated — that could serve as the qualifying tribunal?
3. Where is the evidence? Section 1782 only reaches a person or company "found" in a U.S. federal district.

Related reading: The Complete Guide to § 1782 · Who can apply for § 1782 discovery? · Using § 1782 to enforce a foreign judgment

This article provides general information about 28 U.S.C. § 1782 and the effect of ZF Automotive US, Inc. v. Luxshare, Ltd. It is not legal advice and does not create an attorney-client relationship. Whether § 1782 is available for any matter is fact-specific and varies by federal district. For advice, request a consultation.