Articles U.S. Supreme Court Renders a Decision on Applicability of 28 USC § 1782 to International Arbitration By Stuart A. Krause & Daniel P. Rubel | June 13, 2022 The U.S. Supreme Court rendered a decision about the applicability of 28 USC § 1782 (a U.S. statutory mechanism that allows parties in a litigation outside of the U.S. to obtain documents and oral pretrial deposition testimony from persons and entities, regardless of whether they are parties to the foreign proceeding, in the U.S.) to international private commercial arbitration and investor arbitration. The United States Circuit Courts had been split for several decades on the issue of whether 1782 can be utilized to obtain discovery in connection with an international arbitration. The Courts had been divided on the issue of whether a commercial arbitration tribunal constitutes a “foreign or international tribunal” within the meaning of 1782. The term “tribunal” appears in 1782 without any qualifying language. Specifically, the Courts disagreed on the issue of whether the term “foreign tribunal” is sovereign-centric, and its meaning is limited to tribunals that act under the authority of a government, or whether this term also includes tribunals convened by private parties, including tribunals organized by private parties to an arbitration. Recently, the United States Supreme Court accepted petitions for certiorari to ultimately reach a resolution. The Supreme Court decided that 1782 is not applicable to international private commercial arbitration and investor arbitration. In a unanimous decision, the Court held that “only a governmental or intergovernmental adjudicative body constitutes a ‘foreign or international tribunal’” under 1782. See ZF Automotive U.S., Inc., et al., v. Luxshare, Ltd., (Docket No. 21-401); AlixPartners, LLC, et al., v. The Fund for Protection of Investor Rights in Foreign States, (Docket No. 21-518). An ad hoc arbitration panel, which is not conferred with governmental authority, does not meet this requirement. This decision will undoubtedly have a large impact on international arbitration. In cases where there is pretrial evidence to be gathered in the U.S., it may make sense for counsel to consider litigation, rather than arbitration, as the dispute resolution mechanism. We are available to answer any questions you may have concerning 1782 proceedings. Stuart Krause is the executive partner of ZEK and chair of ZEK’s high stakes litigation practice. Stu has over 35 years of experience in complex fraud, financial, and commercial litigation and is litigation counsel to large international corporations and Fortune 500 companies. Stu is skilled in fighting huge, fiercely contested, and logistically demanding litigation. His approach, which includes a price advantage and right-size staffing structure, enables Stu and his ZEK team to offer medium size companies facing “bet the company” or other significant litigation the ability to see such cases to trial in a cost-effective manner. Stu has considerable experience in working with clients in 1782 proceedings. For questions regarding 1782, please contact Stu at email@example.com. Daniel Rubel is a partner in ZEK’s litigation group and co-head of ZEK’s Israel practice where ZEK provides U.S. legal services to Israeli and other foreign clients. Daniel has a wide variety of experience in representing clients in complex U.S. commercial litigation matters including high stakes litigation related to banking, corporate, employment, real estate and trust disputes. Daniel is the co-founder of ZEK’s practice group in 28 USC § 1782 (“1782”) and Discovery in Foreign Proceedings. Daniel also has extensive experience representing clients in 1782 proceedings. For questions regarding1782, please contact Daniel at firstname.lastname@example.org.