Adherence to Section 1782(a) in the context of international commercial arbitration reconfigures the procedural law applicable to arbitration with respect to the gathering of documents and information by parties, and even the very commencement of the proceeding. Post Intel and progeny, an “interested person” may prosecute a Section 1782(a) petition with the federal district court in the United States prior to actually filing and serving a request for arbitration so long as the filing of such arbitral proceeding is “reasonably imminent.” Thus, the arbitration, which now as a matter of law constitutes a “foreign or international tribunal,” need not even be pending before prospective respondents find themselves with a binding normative legal obligation to respond to discovery pursuant to the Federal Rules of Civil Procedure. Intel and progeny divest prospective institutional arbitral centers from engaging in the most rudimentary arbitration case management exercises. Similarly, this extraordinary doctrinal development in U.S. arbitration – as in private procedural international law – also divests arbitral tribunals of all authority concerning the applicable standard, the conduct, the admissibility, and the nature and character of the disclosure and exchange of documents and information between parties to the arbitral proceeding.

Irrespective of whether Section 1782 is deemed a positive doctrinal development in both U.S. and international arbitral proceedings, there are numerous paradigms pursuant to which risk assessment models would suggest that a party to a transaction would be decisively and materially disadvantaged should a dispute arise precipitating the invocation of an arbitration clause and, consequently, the possible filing of Section 1782 petitions by the adverse party.