## Facts

- NBC and TV Azteca entered a 1994 agreement for NBC to provide programming and services in exchange for compensation that included an option to buy up to 10% of Azteca’s shares by May 1997 under a preset pricing formula.
- The agreement required disputes to be resolved by International Chamber of Commerce (ICC) arbitration under ICC rules and Mexican law.
- After Azteca went public, NBC asserted that Azteca’s conduct and offering materials impaired NBC’s option rights and initiated ICC arbitration seated in Mexico.
- While the arbitration was pending, NBC sought U.S. discovery assistance under 28 U.S.C. § 1782 in the Southern District of New York.
- The district court initially granted ex parte relief allowing NBC to subpoena Azteca’s New York–based investment banks and advisor for documents for use in the arbitration.
- Azteca and the subpoenaed non-parties moved to quash; NBC cross-moved to enforce, arguing the ICC panel was a “foreign or international tribunal” under § 1782.
- The district court quashed the subpoenas and denied enforcement, concluding § 1782 does not apply to private commercial arbitration administered by a nongovernmental organization.

## Issues

1. Whether an ICC commercial arbitration seated in Mexico qualifies as a “proceeding in a foreign or international tribunal” under 28 U.S.C. § 1782.
2. Whether § 1782 permits a federal court to compel discovery from U.S.-based non-parties for use in such private arbitration.

## Decision

- The Second Circuit affirmed the order quashing the subpoenas and denying NBC’s motion to enforce.
- The court held that a private commercial arbitration administered by the ICC is not a “foreign or international tribunal” within the meaning of § 1782.
- Because the arbitral panel derived authority from the parties’ contract rather than from a foreign state or intergovernmental grant of authority, § 1782 discovery was unavailable.

## Legal Principles

- Section 1782 authorizes federal-court discovery only “for use in a proceeding in a foreign or international tribunal,” and the scope of “tribunal” is determined by statutory context, legislative history, and congressional purpose.
- As construed by the Second Circuit, “foreign or international tribunal” in § 1782 refers to governmental, state-sponsored, or intergovernmental adjudicative bodies, not arbitral panels created solely by private agreement.
- Extending § 1782 to private arbitration risks upsetting the expected limits on discovery associated with arbitration (including the framework reflected in arbitration law and arbitral rules) and may invite strategic use of U.S. discovery mechanisms.

## Conclusion

The Second Circuit concluded that ICC commercial arbitration is a private dispute-resolution process outside § 1782, so U.S. courts may not compel discovery from U.S. non-parties for use in that arbitration.


Nat’l Broad. Co. v. Bear Stearns & Co., 165 F.3d 184 (2d Cir. 1999)