Introduction
On December 7, 2020, parties and practitioners in international commercial arbitration came one step closer to resolving the threshold question of the applicability of 28 U.S.C. § 1782 to international commercial tribunals. Section 1782 is a distinctive procedural device which potentially allows an applicant who is a party to an international commercial arbitration to petition a U.S. federal district court with competent jurisdiction to order the disclosure of documentary or deposition evidence for use in the foreign arbitration proceeding. Parties to international commercial arbitrations seeking to rely upon 28 U.S.C. § 1782 to obtain documents or evidence in the possession, custody or control of a U.S. entity face a tumultuous landscape. The deepening circuit split on the question of whether international commercial arbitral tribunals are “foreign or international tribunals” for the purposes of 28 U.S.C. § 1782(a) makes the issue ripe for U.S. Supreme Court resolution.