U.S. Supreme Court No Longer Set to Resolve Circuit Split on Use of Section 1782 in International Commercial Arbitration

September 9, 2021

The U.S. Supreme Court granted certiorari earlier this year in the case of Servotronics, Inc. v. Rolls-Royce PLC and The Boeing Company  to resolve a circuit split regarding whether the federal international evidence collection statute, 28 U.S.C. § 1782, permits recourse to the U.S. courts for discovery for use in international commercial arbitration.

However, on Wednesday, September 8, 2021, counsel for the petitioner informed the Court that the petitioner would be dismissing the case, and the Court removed the case—which had been scheduled for oral argument on October 5, 2021—from its calendar.

Dismissal of Servotronics means that the significant uncertainty regarding whether an international commercial arbitration constitutes “a proceeding in a foreign or international tribunal” within the meaning of the statute remains unresolved.  The entrenched circuit split on the permissibility of § 1782 for use in international commercial arbitration—in which the Second, Fifth, and Seventh Circuits have held that § 1782 discovery is not permitted for use in such proceedings, and the Fourth and Sixth Circuits have ruled in contrast that § 1782 is available in international commercial arbitration—is likely to persist until the Court once again takes up this issue.

For further analysis on the use of 28 U.S. § 1782(a) to obtain discovery in foreign proceedings through U.S. courts, please see our Alert Memos on this topic below: