United States: Can You Take Discovery In The U.S. For Foreign Arbitrations? Maybe, Says The Sixth Circuit Court Of Appeals


The U.S. Court of Appeals for the Sixth Circuit ruled on September 19, 2019 that U.S. District Courts may order individuals and entities within the United States to produce discovery requested for use in private arbitrations abroad. The decision arises out of a Saudi Arabian corporation’s request for the production of documents and deposition testimony from a U.S.-based company under federal statute 28 U.S.C. §1782, which permits U.S. District Courts to order discovery “for use in a foreign or international tribunal.” The Sixth Circuit tasked itself with determining whether a private arbitral panel abroad constituted a “foreign or international tribunal” as used in 28 U.S.C. §1782. The Court found that it did, but whether the discovery would actually be allowed under a four-factor test was remanded to the district court. This decision marks the first time the Sixth Circuit Court of Appeals has ruled on this issue and establishes a circuit split that may result in Supreme Court review. In the meantime, parties involved in foreign arbitral proceedings at least now have a potential pathway to obtaining U.S. discovery.

Summary of Decision

In Abdul Latif Jameel Transportation Company Limited v. FedEx Corporation, Saudi corporation Abdul Latif Jameel Transportation Company Limited (“ALJ”) issued a subpoena requesting documents and deposition testimony of corporate representatives for U.S.-based FedEx Corporation (“FedEx”) in its §1782(a) discovery application.1 The parties were involved in a commercial arbitration proceeding in Dubai under the rules of the Dubai International Financial Centre-London Court of International Arbitration (“DIFC-LCIA”), arising out of a supply-chain contract dispute.2 The U.S. District Court for the Western District of Tennessee denied ALJ’s application, “holding that the phrase ‘foreign or international tribunal’ in §1782 did not encompass […] the […] arbitrations.”3 ALJ appealed the District Court ruling, arguing that the phrase “foreign or international tribunal” does include such proceedings and that its discovery request should be granted.4 FedEx argued that the commercial arbitration at issue did not constitute a “foreign or international tribunal,” relying on Supreme Court precedent in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), and other precedent.5 The Sixth Circuit Court of Appeals, however, agreed with ALJ, ruling that the arbitration did constitute a tribunal under §1782.6

In the decision written by Circuit Judge Bush, the Court conducted an extensive analysis to determine whether the DIFC-LCIA Arbitration Panel constituted a “foreign or international tribunal” under §1782. The analysis included a look at the ordinary dictionary meaning of the word “tribunal” by referencing dictionaries used when §1782 was enacted, a look into the use of the word “tribunal” in legal writing, and a look at other uses of the word “tribunal” throughout §1782.7 The Court found that the “text, context, and structure of § 1782(a) provide no reason to doubt that the word ‘tribunal’ includes private commercial arbitral panels established pursuant to contract.”8

The Court also analyzed FedEx’s arguments that the DIFC-LCIA arbitration panel did not constitute a “foreign or international tribunal.” Although it recognized that some arbitrations fall within §1782’s use of the word “tribunal,” FedEx argued that only state sponsored arbitration “permanently maintained by a national or international government” fall within the statute.9 FedEx relied on the Supreme Court’s decision in Intel, which described four discretionary factors a court should consider when deciding whether to grant a §1782(a) request.10 The Court, however, rejected this argument, finding that the portion of the Intel decision relied on by FedEx did not define the word tribunal as argued.11 The Intel court ultimately found that a non-judicial Commission constituted a tribunal under §1782.12 As such, the Court in Adbul stated that Intel supports its conclusion that a private arbitration constitutes a “tribunal” under §1782.13 The Court also rejected a number of FedEx’s policy consideration arguments.

Circuit Split

The Sixth Circuit decision in Abdul Latif Jameel Transportation Company Limited v. FedEx Corporation is directly at odds with the Fifth Circuit and Second Circuit precedent that the term “tribunal” in §1782 includes only “governmental or intergovernmental arbitral tribunals,” and not private arbitrations.14 The Court in Abdul explained that it was unpersuaded by the Fifth and Second Circuit Courts’ analysis and reasoning, criticizing the reliance on legislative history early in the statute interpretation process by both.15 The Court reasoned that even if the legislative history of §1782 was helpful, it would not contradict its textual-based conclusion.16

So What Does It Mean?

Although the Court in Abdul ruled that a private arbitral panel abroad constitutes a “foreign or international tribunal” under §1782, the Court failed to analyze the Intel factors to determine whether ALJ was entitled to the discovery it requested. The Intel court recognized four factors a court should consider in ruling on a §1782(a) request:

First, when the person from whom discovery is sought is a participant in the foreign proceeding […], the need for § 1782(a) aid generally is not as apparent as it ordinarily is when evidence is sought from a nonparticipant in the matter arising abroad. […] Second, […] a court presented with a § 1782(a) request may take into account the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance. [… Third,] a district court could consider whether the § 1782(a) request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States. [Fourth,] unduly intrusive or burdensome requests may be rejected or trimmed.17

The First Circuit Court of Appeal recently examined the application of these factors in In re Schlich, recognizing the Supreme Court failed to establish the “appropriate burden of proof, if any, for any of the discretionary factors, or the legal standard required to meet that burden.”18 Specifically, the Court in In re Schlich recognized that there are differing views amongst the federal circuits regarding the second Intel factor. However, the Court in In re Schlich believed that the Intel court “did not intend to place a burden on either party [… Rather], we do not see the factors as creating a ‘burden’ for either party to meet, but rather as considerations to guide the district court’s decision.” 19

Similar Sixth Circuit precedent examining the application of these factors is sparse. Therefore, while the Sixth Circuit has recognized the existence of a door, whether one can open it depends on satisfying the four Intel factors. As such, case law will need to develop in the Sixth Circuit to determine how the Intel factors should be applied.


1. In re Application to Obtain Discovery for Use in Foreign Proceedings, No. 19-5315, 2019 WL 4509287, at *1 (6th Cir. Sept. 19, 2019).

2. Id. at *1-2.

3. Id. at *1.

4. Id.

5. Id. at *2.

6. Id. at *14.

7. Id. at *6-8.

8. Id. at *8.

9. Id. at *10.

10. Id.

11. Id.

12. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 257 (2004).

13. In re Application to Obtain Discovery for Use in Foreign Proceedings, No. 19-5315, 2019 WL 4509287, at *9-10 (6th Cir. Sept. 19, 2019).

14. Id. at *10-11.

15. Id. at *11.

16. Id.

17. Intel Corp., 542 U.S. at 264-65.

18 .In re Schlich, 893 F.3d 40, 49 (1st Cir. 2018).

19. Id. at 50.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions