Originally from Pro-Arbitration Revisited: A Tribute to Professor George Bermann from his Students Over the Years

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I. INTRODUCTION

28 U.S.C § 1782 (Section 1782) grants U.S. federal courts the power to order discovery from any person in the United States, “for use in a foreign or international tribunal.” When this note was first drafted, there was uncertainty as to whether Section 1782 applied to international commercial arbitration, which had given rise to a rooted circuit split (the “Section 1782 conundrum”). However, on June 13, 2022, in ZF Automotive US, Inc. v. Luxshare, Ltd. and AlixPartners, LLC v. Fund for Protection of Investors’ Rights in Foreign States, the U.S. Supreme Court resolved the Section 1782 conundrum, holding that a private international arbitral tribunal does not qualify as a “foreign or international tribunal” under Section 1782.

On its face, this short note is a modest reflection on whether Section 1782 (as it will continue to apply to “governmental or intergovernmental adjudicative bodies”) or any similar policy or practice that may become available in the future in any jurisdiction may be deemed to be “pro-arbitration”. If such were the case, the withdrawal of Section 1782 assistance to international commercial arbitration could be construed as “anti-arbitration.”

On a more profound level, this piece is just a pretext to take part in a tribute to a brilliant Professor from whom I have learned the amusing intricacies of the law of transnational litigation and arbitration in the United States. I was extremely privileged to attend his acclaimed course at Columbia Law School in the fall of 2011, and I am very grateful to Kabir Duggal and his team at Columbia Law School for organizing this collective effort and inviting me to participate more than ten years later.