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

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On June 13, 2022, the U.S. Supreme Court handed down its decision in ZF Automotive US, Inc. v. Luxshare, Ltd., 142 S. Ct. 2078 (2022). The decision resolved the longstanding circuit split on the applicability of 28 U.S. Code Section 1782 (Section 1782) discovery to private international arbitrations. In its unanimous decision, the Supreme Court held that Section 1782 discovery is available only to “governmental or intergovernmental adjudicative bodies” and not to private adjudicatory bodies such as international commercial arbitral tribunals and ad hoc investment tribunals.

Being a much-anticipated decision by the international arbitration community, it seems fitting to provide a few preliminary considerations on the perceived “pro-” or “anti-arbitration” impact of ZF Automotive, together with a short summary of the Court’s reasoning.

I. BACKGROUND

For context, Section 1782 permits, but does not require, U.S. federal district courts to order discovery “for use in a proceeding in a foreign or international tribunal” at the request of “any interested person,” provided that the person from whom discovery is sought “resides” or is “found” within the district of the district court where the application is filed. The language of Section 1782 does not define “foreign or international tribunal” nor does it provide any guidance as to whether (or to what extent) a district court should grant the requested petition once the statutory requirements are met.