CURRENT MONTH (December 2021)

Dispute Resolution

Supreme Court to Resolve a Circuit Split

By Leslie A. Berkoff

The question of whether the discretion granted to district courts under 28 U.S.C. § 1782 (“§ 1782”) to render assistance in gathering evidence for use in a “foreign or international tribunal” includes compelling discovery in aid of private commercial arbitrations (in contrast to treaty-based arbitrations) is currently before the Supreme Court for determination. While the question had previously gone to the Supreme Court in the case of Servotronics v. Rolls Royce, this past September that was resolved between the parties just a few weeks prior to oral argument. However, in early December, the Supreme Court will be hearing two cases that present the same questions. ZF Automotive US, Inc. v. Luxshare, Ltd. out of Michigan is before the Court on certiorari before judgment (so no appeal has yet been heard by the Sixth Circuit), and AlixPartners, LLP v. Fund for the Protection of Investors’ Rights in Foreign States, out of the Second Circuit. ZF Automotive allowed for discovery whereas the AlixPartners case did not permit discovery. Both of these cases will be heard together, having been consolidated by the Supreme Court. At the present time, the split over this issue falls on the one hand with the Sixth and Fourth Circuits holding that Section 1782 encompasses foreign private arbitrations, and on the other hand, the Second, Fifth, and Seventh Circuits holding that Section 1782 excludes foreign private arbitrations. This issue is currently pending before several other Circuit courts, including the Third and the Ninth Circuits. Those who practice in this space will await a determination by the Supreme Court on this important issue.

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