Journal of Arbitration Studies (한국중재학회지:중재연구)

The Korean Association of Arbitration Studies (한국중재학회)
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The U.S. Supreme Court Finally Limits the Scope of Judicial Assistance in Private International Arbitral Proceedings Pursuant to 28 U.S.C. §1782 in its Recent Decision of ZF Auto. US, Inc., v. Luxshare, Ltd., 596 U.S. ___ (2022)

  • Received : 2022.08.05
  • Accepted : 2022.08.31
  • Published : 2022.09.01
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Abstract

Until recently, there has been a circuit split as to whether parties to foreign private arbitral proceedings could seek assistance from the U.S. courts for discovery pursuant to 28 U.S.C. §1782. The circuit courts have differed on the issue of whether a private arbitral proceeding may be considered a "proceeding in a foreign or international tribunal" in terms of the statute, which would ultimately allow or disallow judicial assistance in taking of evidence by the U.S. district courts for use in the requested proceedings. While the U.S. Supreme Court has addressed the applicability of §1782 in its Intel decision in 2004, it had not established a test as to what constitutes a foreign or international tribunal for the purposes of §1782, thereby leaving it open for lower courts to continue to interpret §1782 in their own ways, as requests for judicial assistance in taking of evidence are filed. In the recent decision of ZF Auto. US, Inc., v. Luxshare, Ltd., the Supreme Court has finally clarified that in order for an arbitral panel to be a "foreign or international tribunal" under §1782, such panels must exercise governmental authority conferred by one nation or multiple nations. Therefore, private commercial arbitral panels are not "foreign or international tribunal(s)" for the purposes of §1782 because they do not constitute governmental or intergovernmental adjudicative bodies. Such holding is necessary and legitimate for interested parties in international arbitration, as well as, potential parties of arbitration who are contemplating alternative dispute resolution for their dispute(s).

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References

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