Generally no: after ZF Automotive US, Inc. v. Luxshare, Ltd., 596 U.S. 619 (2022), a private foreign commercial arbitration is not a “foreign or international tribunal,” so 28 U.S.C. § 1782 is generally unavailable to gather evidence for one. But “generally” is not “never.” Counsel who understand three exceptions — court proceedings ancillary to the arbitration, award-enforcement actions, and discovery whose primary use is in a qualifying tribunal — can still obtain meaningful US discovery in many arbitration-adjacent disputes.
What ZF Automotive actually decided
Section 1782 authorizes discovery for use “in a proceeding in a foreign or international tribunal.” For years the circuits split over whether private arbitral panels qualified. ZF Automotive resolved it. The Court held that “§1782 requires a ‘foreign or international tribunal’ to be governmental or intergovernmental. Thus, a ‘foreign tribunal’ is one that exercises governmental authority conferred by a single nation, and an ‘international tribunal’ is one that exercises governmental authority conferred by two or more nations.” A private commercial arbitral panel does not become governmental merely because the law of the seat governs some aspects of the arbitration and local courts help enforce arbitration agreements; and the same reasoning excluded the ad hoc investor-state panel at issue in the companion case. The Court was careful about how far that reaches: “None of this forecloses the possibility that sovereigns might imbue an ad hoc arbitration panel with official authority. . . . The relevant question is whether the nations intended that the ad hoc panel exercise governmental authority.” The Second Circuit has since applied that reasoning to an ICSID arbitration. Webuild v. WSP USA Inc., 108 F.4th 138 (2d Cir. 2024). Extending the statute to private bodies, the Court added, would sit in significant tension with the Federal Arbitration Act, which permits much narrower discovery.
The practical consequence is clean at the extremes. If the only foreign proceeding is a private ICC, LCIA, DIS, or similar commercial arbitration, a US district court will deny the application. Counsel should not file as though the pre-ZF circuit law still controls.
Exception one: the foreign proceeding must still have something left to decide
ZF Automotive turned on what counts as a tribunal, and that cuts both ways. The courts that supervise, support, or review an arbitration are ordinary state courts, and they are tribunals. A Section 1782 application tied to a foreign court proceeding connected to the arbitration — annulment, interim measures, or other judicial involvement — stands on entirely different footing than one tied to the arbitral panel itself.
A second requirement sits beside the first, and it is the one respondents press hardest in enforcement cases. In the Second Circuit a court asks “(1) whether a foreign proceeding is adjudicative in nature; and (2) when there is actually a foreign proceeding.” Euromepa, S.A. v. R. Esmerian, Inc., 154 F.3d 24 (2d Cir. 1998). That rule is narrower than it first appears. Euromepa found a French bankruptcy proceeding non-adjudicative because “[t]he merits of the dispute . . . have already been adjudicated” and, as a matter of French res judicata, “nothing is being adjudicated; the already extant judgment is merely being enforced.” The Second Circuit has since said that district courts “misread Euromepa” if they read it to hold “that the mere completion of an initial adjudication of a dispute categorically disqualifies a foreign proceeding,” and that Euromepa “was fundamentally a case about mootness.” There is “no blanket ban on Section 1782 assistance in connection with post-judgment proceedings”; instead, “whether a given proceeding is adjudicative in nature is determined on a case-by-case basis.” In re YS GM Marfin II, LLC, No. 1:20-mc-00182 (S.D.N.Y. Mar. 2, 2022).
So the operative question is not whether the foreign step is labeled enforcement. It is whether the foreign court must still find or decide something. It failed that test in Ibiuna Credito Gestao de Recursos Ltda v. Goldman Sachs Group Inc., No. 1:24-mc-00013 (S.D.N.Y. Feb. 14, 2024) (report and recommendation), adopted (S.D.N.Y. Mar. 11, 2024), where the petitioners “identified no issue the São Paulo State Court still needs to decide, and no hearing that still needs to be held” in the two Brazilian civil proceedings at issue. That was a ruling about those proceedings, not about the application as a whole, which was granted as to four respondents for use in a Brazilian reorganization and a criminal proceeding. It passed the test in In re Banco BTG Pactual S.A., No. 1:24-mc-00304 (S.D.N.Y. Apr. 9, 2025), where the respondent argued the foreign proceedings were merely “enforcement proceedings related to debt [that] already exist[s]” involving no “merit-based issue that remains to be decided.” The court rejected that argument and granted the application, because the foreign proceedings involved issues “that remain[] to be decided,” including “whether the assets identified through foreign discovery qualify for debt satisfaction under Brazilian law.”
Exception two: award enforcement is a valid proceeding
Once the arbitration has produced an award and the dispute moves into a court — to confirm, enforce, or resist enforcement — the foreign proceeding is again before a governmental adjudicative body, and Section 1782 is back in play. The case to know is Union Fenosa Gas, S.A. v. Depository Trust Co., No. 1:20-mc-00188 (S.D.N.Y. May 29, 2020). The applicant held a $2 billion arbitral award against Egypt and sought discovery for an English post-judgment enforcement proceeding. The court held that proceeding adjudicative: the English court “will be required to make factual findings concerning the possessory and ownership interests in the funds and apply English law to determine whether those interests leave the funds susceptible to execution.” Even an ex parte English application requires the moving party “to raise and address any arguments that Egypt would—if it were present—make against the issu[ance] of a TPDO, including whether the targeted assets are executable under English law.” The court called the question “relatively close.” As YS GM Marfin records, a second judge of that court reached the same conclusion about the same English proceeding, describing it as involving “judicial scrutiny of a TPDO application and a potential hearing” rather than something “merely . . . administrative in nature.”
The applicant did not get everything it asked for. The court sustained the document subpoena “in pruned form to eliminate needlessly burdensome demands” and quashed the subpoena for deposition testimony.
There is also a hard limit on what the statute delivers at this stage. In In re Clerici, 481 F.3d 1324 (11th Cir. 2007), the Eleventh Circuit sustained a request for a judgment debtor’s sworn answers about his assets precisely because the foreign court “never requested that the district court sequester, levy on, or seize control of Clerici’s assets.” Section 1782 produces evidence. It does not seize anything. Counsel boxed out at the merits stage of a private arbitration may find the door reopens at enforcement, particularly in asset-tracing efforts against an award debtor.
Exception three: secondary or ancillary use
The most useful and least understood point: discovery can be used in an arbitration if that use is secondary or ancillary to a primary, acceptable use in a qualifying tribunal. If the applicant’s primary, genuine purpose is to obtain evidence for a foreign court proceeding (or a US proceeding), the fact that the same evidence may also find its way into a related arbitration does not, by itself, defeat the application — though a court may condition or limit that secondary use. The drafting and the candid description of purpose matter enormously here; an application that is transparently an arbitration-discovery vehicle dressed up as something else invites denial.
The “reasonable contemplation” trap
Counsel anticipating a future foreign proceeding should also heed the timing limit. A proceeding may be “existing” or within reasonable contemplation, but courts will deny applications where the discovery is sought to decide whether a claim can be brought at all, rather than to support a proceeding that is genuinely contemplated. And courts remain divided on the harder case, where a petitioner represents that it will bring a foreign proceeding and articulates its legal theories but candidly admits that actually filing is contingent on first obtaining the Section 1782 discovery. That uncertainty is itself a planning consideration: forum selection within the United States can matter.
Where to file: the circuits diverge on whether the proceeding must be adjudicative
The adjudicative requirement is not uniform across the country. The Second Circuit applies the Euromepa framework case by case. The Eleventh Circuit does not impose the requirement at all: in Clerici it held that “nothing in the plain language of § 1782 requires that the proceeding be adjudicative in nature,” pointing to the statute’s express reach to “criminal investigations conducted before formal accusation.”
That divergence is a planning fact for counsel pursuing an award debtor whose assets sit in more than one district. The four statutory requirements and the four Intel factors apply wherever the application is filed, and the respondent must still be found in the district chosen. But the threshold characterization of the foreign proceeding — the argument a respondent will press first in an enforcement case — is not the same question in every circuit.
Practical guidance
For counsel in or around a foreign arbitration: do not file against the arbitral panel itself, but look for the court in the picture — annulment, enforcement, asset-tracing, or a parallel civil action — and anchor the application there. Describe the primary use honestly, and treat any arbitration use as secondary. For respondents, the strongest early motion is often to characterize the foreign matter as a private arbitration, or as a foreign step with nothing left for the foreign court to decide.
For the full statutory framework — the four mandatory requirements, the four Intel discretionary factors, and the defenses — see A Practical Guide to Bringing and Defending Section 1782 Applications.