International Arbitration Update: Supreme Court Asked to Resolve Circuit Split Over Discovery in Aid of Private Commercial Arbitration Seated Outside the United States
USA
December 16 2020
On December 7, 2020, Servotronics, Inc. filed a petition for writ of certiorari asking the United States Supreme Court to decide whether parties may seek discovery in the United States for use in commercial arbitration proceedings seated outside the United States under 28 U.S.C. § 1782 (“Section 1782”), a vigorously debated question that has increasingly divided lower courts.
Under Section 1782, a petitioner may obtain evidence through U.S. federal district courts for use in a proceeding before a “foreign or international tribunal.” Importantly, Section 1782 does not define what qualifies as a “foreign or international tribunal.” Federal courts are increasingly divided on whether the definition includes private commercial arbitral tribunals.
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On December 7, 2020, Servotronics, Inc. filed a petition for writ of certiorari asking the United States Supreme Court to decide whether parties may seek discovery in the United States for use in commercial arbitration proceedings seated outside the United States under 28 U.S.C. § 1782 (“Section 1782”), a vigorously debated question that has increasingly divided lower courts.
Under Section 1782, a petitioner may obtain evidence through U.S. federal district courts for use in a proceeding before a “foreign or international tribunal.” Importantly, Section 1782 does not define what qualifies as a “foreign or international tribunal.” Federal courts are increasingly divided on whether the definition includes private commercial arbitral tribunals.
Introduction
On December 7, 2020, parties and practitioners in international commercial arbitration came one step closer to resolving the threshold question of the applicability of 28 U.S.C. § 1782 to international commercial tribunals. Section 1782 is a distinctive procedural device which potentially allows an applicant who is a party to an international commercial arbitration to petition a U.S. federal district court with competent jurisdiction to order the disclosure of documentary or deposition evidence for use in the foreign arbitration proceeding. Parties to international commercial arbitrations seeking to rely upon 28 U.S.C. § 1782 to obtain documents or evidence in the possession, custody or control of a U.S. entity face a tumultuous landscape. The deepening circuit split on the question of whether international commercial arbitral tribunals are “foreign or international tribunals” for the purposes of 28 U.S.C. § 1782(a) makes the issue ripe for U.S. Supreme Court re
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On December 7, the Supreme Court received a request to decide whether parties in private, commercial, international arbitrations can avail themselves of 28 U.S.C. § 1782(a) (Section 1782) to obtain discovery through U.S. federal courts. [1][2] Section 1782 provides in pertinent part:
“The district court of the district in which a person resides or is found 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…”
Circuits split as to the definition of a “foreign or international tribunal.” The Fourth and Sixth Circuits read the definition broadly finding Section 1782 does authorize U.S. discovery for private international arbitrations. [3] However, the Second, Fifth, and Seventh Circuits narrowly interpret the definition, holding the opposite. [4][5] For additional information regarding the circuit split and