June 13, 2022 Click for PDF Decided June 13, 2022 ZF Automotive US, Inc. v.
Luxshare, Ltd. , No. 21-401; and AlixPartners, LLP v.
The Fund for Protection of Investors’ Rights in Foreign States, No. 21-518 Today, the Supreme Court held 9-0 that parties to private arbitrations abroad may not seek the assistance of federal courts in gathering evidence for use in those arbitrations.
Background: Congress has authorized district courts to order certain discovery “for use in a proceeding in a foreign or international tribunal.” 28 U.S.C. § 1782(a).
Luxshare, Ltd. applied under Section 1782 for discovery from ZF Automotive US, Inc. for use in a planned arbitration under the rules of a private German association.
The district court granted the application, holding that a private commercial arbitral body abroad qualifies as a “foreign or international tribunal” under Section 1782.
The Supreme Court granted certiorari before judgment.
In a separate case, a Russian entity brought an arbitration against Lithuania pursuant to a bilateral investment treaty between Russia and Lithuania.
The Russian entity applied under Section 1782 for discovery from U.S.-based third parties.
The district court granted the application.
The Second Circuit affirmed, holding that the arbitral panel was a “foreign or international tribunal” in large part because it derived its adjudicatory authority from the treaty.
Issue: Whether a private arbitral body is a “foreign or international tribunal” under 28 U.S.C. § 1782(a).
Court’s Holding: Only a governmental or intergovernmental adjudicative body constitutes a “foreign or international tribunal” under 28 U.S.C. § 1782(a).
Such bodies are those that exercise governmental authority conferred by one nation or multiple nations.
Thus, a private commercial arbitration abroad does not qualify, nor does an arbitral panel formed pursuant to an international treaty unless the parties to that treaty conferred governmental authority on the arbitral panel. “The statute reaches only governmental or intergovernmental adjudicative bodies, and neither of the arbitral panels involved in these cases fits that bill.” Justice Barrett, writing for the Court What It Means: The Court’s opinion is available here .
Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding developments at the Supreme Court. Please feel free to contact the following practice leaders: Appellate and Constitutional Law Practice Related Practice: Judgment and Arbitral Award Enforcement Related Practice: Transnational Litigation Related Practice: International Arbitration Necessary cookies are absolutely essential for the website to function properly.
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