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United States Supreme Court Closes the Door to U.S. Discovery in International Commercial Arbitration

By Jennifer Ersin & E. Mabry Rogers on June 16, 2022
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What did the Court decide?

The United States Supreme Court resolved a split among the federal appeals courts on the question of whether private international arbitration tribunals can be considered to be either “foreign” or “international” tribunals for purposes of a federal statute, 28 U.S.C. § 1782, which permits discovery from persons located in the U.S. “for use in a foreign or international tribunal.”

In a unanimous opinion, the Court held this month in ZF Automotive, that the phrases “foreign tribunal” and “international tribunal” do not refer to private international arbitration tribunals. 

Why does it matter?

U.S. companies and persons are no longer under the threat of having to comply with invasive and burdensome discovery requests related to international arbitration. Prior to this decision, not only could a party to an ongoing arbitration seek discovery in the U.S., but some federal courts allowed a party merely considering whether to initiate an international arbitration to obtain discovery from any U.S. entity or person. The flip side is that those U.S. companies faced with international arbitration as a required remedy have lost a tool that sometimes allowed broader discovery in the U.S. courts than was allowed in the international arbitration proceeding.

As a result, prior to the Court’s decision in ZF Automotive, any designer, supplier, manufacturer, contractor, or indeed any person who engages in international trade or projects could have been forced to produce documents and submit to depositions even though their foreign counterparts were not subject to the same requirement under most international arbitration rules.

The Supreme Court has closed this door. U.S. parties will no longer be subject to more burdensome discovery than foreign parties and will not be required to produce documents or give testimony to aid a private foreign tribunal under the federal statute 28 U.S.C. § 1782. 

Photo of Jennifer Ersin Jennifer Ersin

Jennifer Morrison Ersin focuses her practice in international disputes. She advises clients in international investment and commercial arbitrations across a range of sectors. She has acted in proceedings governed by the rules of arbitration of the International Chamber of Commerce (ICC), United Nations…

Jennifer Morrison Ersin focuses her practice in international disputes. She advises clients in international investment and commercial arbitrations across a range of sectors. She has acted in proceedings governed by the rules of arbitration of the International Chamber of Commerce (ICC), United Nations Commission on International Trade Law (UNCITRAL), American Arbitration Association (AAA), and International Centre for Settlement of Investment Disputes (ICSID). Jennifer has acted in arbitrations seated in jurisdictions around the world, and is a fellow of the Chartered Institute of Arbitrators (FCIArb).

Her experience includes advising clients on federal government construction contracts disputes, and arbitrating construction, energy, and agribusiness matters. She also has extensive experience handling matters that arise from municipal infrastructure projects.

Jennifer has particular experience in acting in disputes involving sovereign states. She has most recently represented contractors against sovereign employers including Libya and Ethiopia. This experience extends to counseling contractors on how to best exit high-conflict states, including Libya and Afghanistan.

Jennifer is also adept at handling matters before U.S. courts, particularly where those matters include an international element or a foreign party. She is able to assist foreign clients in Section 1782 discovery actions and enforcement actions.

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Photo of E. Mabry Rogers E. Mabry Rogers

Mabry Rogers focuses his practice on complex construction and procurement litigation. He has been with Bradley Arant Boult Cummings since 1975 and worked on some of the most important matters in Alabama, the Southeast and around the country over the past several decades.

Mabry Rogers focuses his practice on complex construction and procurement litigation. He has been with Bradley Arant Boult Cummings since 1975 and worked on some of the most important matters in Alabama, the Southeast and around the country over the past several decades. Rogers is a member of the American College of Construction Lawyers, named a leading lawyer by Best Lawyers and Chambers USA. He holds a B.A. (cum laude) from Yale University and a J.D. (cum laude) from Harvard Law School. View articles by Mabry

Read more about E. Mabry RogersEmailMabry's Linkedin Profile
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  • Posted in:
    Real Estate & Construction
  • Blog:
    BuildSmart
  • Organization:
    Bradley Arant Boult Cummings LLP
  • Article: View Original Source

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