Can US Federal Courts Allow Discovery For Private International Arbitrations?
As set forth in SCOTUSBlog, this is the issue before the Supreme Court in Servotronics, Inc. v. Rolls-Royce PLC: "Whether the discretion granted to district courts in 28 U.S.C. § 1782(a) to render assistance in gathering evidence for use in 'a foreign or international tribunal' encompasses private commercial arbitral tribunals, as the U.S. Courts of Appeals for the 4th and 6th Circuits have held, or excludes such tribunals without expressing an exclusionary intent, as the U.S. Courts of Appeals for the 2nd, 5th and, in the case below, the 7th Circuit, have held."
The key issue is whether private international arbitration qualifies as "a foreign or international tribunal", in which case discovery could be permitted in U.S. district courts.
John Elwood, posting on March 18, 2021 for SCOTUSBlog, writes: "Servotronics notes that until the provision was revised in 1964, it applied to 'any judicial proceeding pending in any court in a foreign country.' Servotronics contends that the change in wording suggests Congress intended to include quasi-judicial proceedings such as arbitral proceedings. We’ll have a better idea what the Supreme Court thinks on Monday." That was written before the Supreme Court granted cert on March 22, 2021.
On March 22, 2021, Paul Weiss Rifkind Wharton & Garrison LLP posted about Servotronics on Lexology. The post makes the point that, regardless of how the case is decided, issues are likely to remain regarding the interpretation of 1782: "First, even after the Supreme Court rules in Servotronics, we may not know whether an international arbitration seated in the United States qualifies as a 'foreign or international tribunal' under Section 1782. In addition, regardless of the outcome, courts may continue to find that investor-state arbitrations qualify for Section 1782 discovery."
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