Supreme Court to Resolve Applicability of 28 U.S.C. § 1782(a) in International Commercial Arbitration

Posted by Marc R. Labgold, Ph.D. | Dec 12, 2021 | 0 Comments

The US Supreme Court has once again granted certiorari in a case directed to the resolving the circuit split on the application of 28 U.S.C. § 1782(a) in international commercial arbitration.  The Court was set to address this issue last session in Servotronics, Inc. v. Rolls-Royce PLC (20-274), but the case was resolved before oral argument. 

The following questions are presented in the two consolidated cases now before the Court

Docket No 21-401:  Whether 28 U.S.C. § 1782(a), which permits litigants to invoke the authority of United States courts 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 Fourth and Sixth Circuits have held, or excludes such tribunals, as the U.S. Courts of Appeals for the Second, Fifth, and Seventh Circuits have held.

Docket No. 21-518 (consolidated with 21-401):  Whether an ad hoc arbitration to resolve a commercial dispute between two parties is a “foreign or international tribunal” under 28 U.S.C. § 1782(a) where the arbitral panel does not exercise any govern- mental or quasi-governmental authority.

The briefs in 21-401 are available here.

The briefs in 21-518 are available here.

#arbitration #internationalarbitration #supremecourt #scotus #internationallaw #law

About the Author

Marc R. Labgold, Ph.D.

Marc R. Labgold, PhD, is a registered U.S. patent attorney with nearly 30 years of experience specializing in patent litigation and international commercial arbitration.  He is an independent arbitrator listed on numerous distinguished panels ...


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