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The U.S. Supreme Court Holds That Only A Governmental Or Intergovernmental Adjudicative Body Constitutes A “Foreign Or International Tribunal” Under 28 U.S.C. §1782

Posted by Marc R. Labgold, Ph.D. | Jun 13, 2022 | 0 Comments

In a unanimous decision issued on June 13, 2020, the Supreme Court has resolved the conflict between various U.S. Courts of Appeals as to the applicability of 28 U.S.C. §1782, holding that “[o]nly a governmental or intergovernmental adjudicative body constitutes a ‘foreign or international tribunal' under 28 U.S.C. §1782.”   

Section 1782(a) provides, in relevant part, that a district court may order discovery “for use in a proceeding in a foreign or international tribunal.”  The following questions were presented in the two consolidated cases heard by the Court:

ZF Automotive v Luxshare (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.

AlixPartners v The Fund for Protection of Investors' Rights in Foreign States (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 Court resolved the conflict in favor of the more restrictive view held by the U.S. Courts of Appeals for the Second, Fifth, and Seventh Circuits, excluding non-governmental tribunals from the scope of § 1782.   The Court reached its decision by examining the statute's history and comparison to the Federal Arbitration Act (FAA), 9 U. S. C. §1 et seq.  

The Court found that from the outset, “the statute has been about respecting foreign nations and the governmental and intergovernmental bodies they create.”  Significantly, from 1855 until 1964, §1782 and its antecedents were directed to assistance only to foreign “courts.”  In 1964, Congress adopted the language of the current statute, not to “signal an expansion from public to private bodies, but rather an expansion of the types of public bodies covered.”  The Court concluded that “[a]fter all, the animating purpose of §1782 is comity.”  

The Court explained that it is “difficult to see how enlisting district courts to help private bodies would serve that end,” further noting that allowing the broader reading “to include private bodies would also be in significant tension with the FAA, which governs domestic arbitration, because §1782 permits much broader discovery than the FAA allows.”  Thus, “[i]nterpreting §1782 to reach private arbitration would therefore create a notable mismatch between foreign and domestic arbitration.”

Download a copy of the slip opinion here.

About the Author

Marc R. Labgold, Ph.D.

Marc R. Labgold, PhD, MCIArb, FBiam is a registered U.S. patent attorney with nearly 30 years of experience specializing in patent litigation and international commercial arbitration.  His clients are recognized leaders in their respective industries – including leaders in the biotech, chemical, pharmaceutica...

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