SCOTUS Resolves Section 1782 Controversy: Courts Cannot Order Discovery in Most International Arbitrations

On June 13, the Supreme Court unanimously held that parties engaged in private, commercial arbitrations, as well as at least some investor-state arbitrations, seated abroad cannot obtain discovery in the United States under 28 U.S.C. § 1782(a) (Section 1782), which provides for the production of documents or testimony in aid of proceedings before “foreign and international tribunal(s).” With limited exception, the Court’s decision will preclude parties to such arbitral proceedings from obtaining evidence in the United States through the federal courts. The ruling settles a decades-old circuit split and debate within the international arbitration community as to whether a private arbitral panel constitutes a “foreign or international tribunal” within the meaning of Section 1782. The ambiguity of that term in the statute previously allowed parties to obtain U.S. style discovery in some circuits despite contracting to resolve their disputes through international arbitration, with the resulting anomaly that parties to international arbitrations could in some circumstances get more discovery through the U.S. court system than parties in domestic (U.S.) arbitration. Now, that possibility has been wholly precluded. The Court has resolved that the statute “reaches only governmental or intergovernmental adjudicative bodies,” and private arbitral panels do not “fit[] that bill.”

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