U.S. Supreme Court Ends the Debate…

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U.S. SUPREME COURT ENDS THE DEBATE ON ENFORCEABILITY OF U.S. RULES ON DISCOVERY IN INTERNATIONAL ARBITRATION

On June 13, 2022, the United States Supreme Court delivered a landmark decision, excluding the use of 28 U.S.C. § 1782 in international arbitration.

28 U.S.C. § 1782 authorizes a federal district court to order the production of evidence “for use in a proceeding in a foreign or international tribunal.” U.S. courts were split on whether an arbitral tribunal constitutes a “foreign or international tribunal” under § 1782: while some of them granted discovery requests, others did not. This decision has, to a large extent, put an end to the controversy.

LEGAL BACKGROUND

Section § 1782 authorizes U.S. federal district courts to order a person or entity that either resides or is found within the court’s jurisdiction “to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal.” This means that a Section 1782 petitioner must show that:

  • The target of the discovery either resides in or is located in the U.S jurisdiction where the motion was filed.
  • The discovery sought is for use in a foreign proceeding.
  • The party seeking discovery is an “interested person.”

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