Clifford Chance

Supreme Court to Decide Whether Section 1782 Allows Discovery for Use in Foreign Arbitrations

March 22, 2021

Participants in foreign arbitrations often seek evidence by taking advantage of U.S.-style discovery practices, potentially expanding discovery far beyond the rules of the arbitration tribunal. The U.S. Supreme Court has just agreed to hear whether this use of U.S. discovery is permissible, in Servotronics, Inc. v. Rolls-Royce PLC et al., No. 20-794.

The issue centers around the scope of 28 U.S.C. § 1782, which permits interested persons to seek discovery in the U.S. for use in “a proceeding in a foreign or international tribunal.” The Supreme Court has agreed to decide whether a “foreign or international tribunal” includes private arbitrations, or is instead limitedto court proceedings.

To date, the issue has divided U.S. courts, with some concluding that only courts count as tribunals, while others include arbitration tribunals within the scope of “international tribunals.” That broad interpretation would permit parties in foreign arbitrations to direct wide-ranging U.S. style discovery requests to persons and entities in the U.S. in connection with that arbitration, including document requests and depositions, whether or not such discovery requests were contemplated by arbitration procedures.

The case will be argued in the Term beginning in October, and the issue is expected to be decided within the next year.

Download PDF