Following the recent dismissal of Servotronics, Inc. v. Rolls-Royce PLC and The Boeing Company – a case regarding whether a private commercial arbitration constitutes “a proceeding in a foreign or international tribunal” under 28 U.S.C. § 1782(a), for which the U.S. Supreme Court granted certiorari earlier in 2021 – the U.S. Supreme Court is once again poised to rule on whether Section 1782 permits recourse to the U.S. courts to obtain discovery for use in international arbitration.
On December 10, 2021, the Supreme Court granted certiorari and consolidated two cases regarding the application of Section 1782 to arbitration. In Luxshare, Ltd. v. ZF Automotive US, Inc., the Supreme Court – in a rare procedural move – granted certiorari before judgment by the Court of Appeals for the Sixth Circuit, effectively allowing the parties to sidestep the Sixth Circuit and have the Supreme Court decide whether Section 1782 permitted discovery for use in a private commercial arbitration proceeding. In AlixPartners, LLP v. The Fund for Protection of Investors’ Rights in Foreign States, the Supreme Court granted certiorari following the Second Circuit’s decision to allow discovery under Section 1782 for use in a public international arbitration constituted pursuant to a bilateral investment treaty.
With these two cases, the Supreme Court once again has the opportunity to decide the availability of Section 1782 to obtain discovery for use in private commercial arbitration, as to which the U.S. Circuit Courts of Appeals are split. Moreover, although the lower courts have seemingly agreed that a tribunal constituted pursuant to an investment treaty is a “foreign or international tribunal” within the meaning of Section 1782, the Supreme Court’s decision to review the AlixPartners case will also present it with the opportunity to decide whether the type of arbitration (private vs. treaty) impacts the applicability of Section 1782.
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: