US Supreme Court limits discovery under §1782 in international arbitration


In two cases involving a commercial arbitration under the rules of the German Institution of Arbitration seated in Germany and a treaty-based ad hoc arbitration under the Lithuania-Russia bilateral investment treaty, respectively, the U.S. Supreme Court has decided that neither arbitral tribunal qualifies as a "foreign or international tribunal" pursuant to §1782. This ruling resolves a previous jurisprudential split in lower U.S. courts.

Section 1782 of Title 28 of the United States Code ("§1782") empowers U.S. district courts to assist in taking evidence located in the U.S. for use in "foreign or international tribunals". Pursuant to this provision, the district court "may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal".

Parties to international arbitrations have readily used §1782 to seek broad "US-style" discovery in the U.S, including arbitrations seated in Switzerland. However, there has been a long-lasting debate as to the correct interpretation of §1782. While in some circuits the courts have ruled that international arbitral tribunals qualify as "foreign or international tribunals" within the meaning of §1782 U.S.C., others have ruled that they do not.

The Supreme Court was called to resolve the jurisprudential split, ruling on two consolidated appeals. In ZF Automotive US Inc v Luxshare, Luxshare sought information under §1782 from Michigan-based company ZF Automotive and its officers in preparation of a Munich-seated commercial arbitration administered by the German Institution of Arbitration ("DIS"). In Alixpartners, LLP v The Fund for Protection of Investors Rights in Foreign States (the "Fund"), the Fund filed a §1782 application in the Southern District of New York in an ongoing ad hoc arbitration under the Russia-Lithuania BIT. In both cases, the respondents sought to resist the §1782 application arguing that arbitral tribunals do not qualify as "foreign or international tribunals".

The Supreme Court decided that arbitral tribunals are "private adjudicative bodies" which do not qualify as "foreign or international tribunals" in the meaning of §1782. The Court found that the word "tribunal" in §1782 must be understood to refer to an "adjudicative body that exercises governmental authority", and held that the arbitral tribunals in the underlying cases did not exercise such authority.

The Supreme Court decision closes the door to direct applications by parties for broad "US-style" discovery in the U.S. in aid of international commercial arbitrations seated outside the U.S.

The situation seems less clear in relation to investor-state arbitration. While the Supreme Court did rule that an ad hoc arbitral tribunal constituted under a BIT pursuant to the UNCITRAL Arbitration Rules does not exercise governmental authority and, hence, does not qualify as a foreign or international tribunal pursuant to §1782, it recognized that "none of this forecloses the possibility that sovereigns might imbue an ad hoc arbitration panel with official authority". Whether parties may seek §1782 discovery in aid of arbitral tribunals constituted, for instance, under the ICSID Convention (an option that was not included in the Russia-Lithuania BIT) is not entirely clear.

It also remains to be seen whether §1782 applications in aid of foreign arbitrations can be channeled through local courts at the seat of the arbitration (if the arbitration is seated in Switzerland, for instance, pursuant to Article 184(2) of the Swiss Private International Law Act).



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