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

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I. INTRODUCTION

On June 13, 2022, the United States Supreme Court (the “Court”) ruled in a unanimous decision that 28 U.S.C. § 1782—which authorizes federal courts to grant discovery “for use in a proceeding in a foreign or international tribunal”—is unavailable in proceedings before “private adjudicatory bodies.”

The underlying consolidated cases were ZF Automotive U.S., Inc., et al., v. Luxshare, Ltd., and AlixPartners, LLP, et al., v. The Fund for Prot. of Investors’ Rts. in Foreign States.  The cases concerned an arbitral tribunal hearing a commercial arbitration under the rules of a private German institution, and an ad hoc arbitration in accordance with the Arbitration Rules of the United Nations Commission of International Trade Law (UNCITRAL), which stemmed from a dispute under a bilateral investment treaty.  The Court’s decision rests on the basis that a “foreign or international tribunal” under § 1782 must be a governmental or intergovernmental adjudicative body.  The Court found that neither arbitral tribunal was “imbued with governmental authority.”

This essay briefly examines (i) the use of § 1782 in International Arbitration; (ii) Professor George Bermann’s amicus brief in the cases; and (iii) the U.S. Supreme Court’s decision in ZF Automotive.