Document Type

Book Chapter

Publication Date

2023

Abstract

A provision of U.S. law — 28 U.S.C. section 1782 has for decades enabled litigants in foreign courts and international tribunals to avail themselves of U.S.-style discovery. Litigants and even so-called other interested parties have access to documentary and testimonial evidence even though the parties and dispute have no connection with the U.S. and such discovery is unavailable in the fora where the proceedings are pending. Use of this powerful evidence-gathering tool section 1782 in proceedings before foreign courts and international tribunals has become commonplace.

Among the most controversial issues in the U.S. law of international arbitration in recent years has been whether U.S. courts should make section 1782 discovery available for use in proceedings before international arbitral proceedings conducted abroad. For a long period U.S. courts and commentators have been deeply divided over the matter and awaited impatiently an authoritative ruling from the Supreme Court. That ruling has now come in the form of a pair of cases before the court: ZF Automotive US, Inc. v. Luxshare, Ltd. (an international commercial arbitration case) and AlixPartners, LLP, et al. v. Fund for Protection of Investors’ Rights in Foreign States (an international investor-State case). (For ease, reference below will be made to ZF Automotive only, unless AlixPartners is specifically implicated.) These rulings have dramatically altered the landscape. As of now, section 1782 discovery is categorically unavailable for use in international commercial arbitral proceedings and, except in extremely rare cases, in international investor-State disputes as well.

Disciplines

Dispute Resolution and Arbitration | Law

Comments

Reprinted from "Achieving the Arbitration Dream: Liber Amicorum for Professor Julian D.M. Lew KC", edited by Stavros Brekoulakis, Romesh Weeramantry and Lilit Nagapetyan, 2023, pp. 143-152, with permission of Kluwer Law International.

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