The Supreme Court Rules That § 1782 Does Not Apply To Private Arbitrations

On June 13, 2022, the Supreme Court issued its highly anticipated decision on the issue of whether 28 U.S.C. § 1782 permits district courts to order discovery for use in international commercial arbitration or ad hoc investment arbitration. See ZF Automotive, Inc. v. Luxshare, Ltd., 142 S.Ct. 2078 (2022). In a unanimous opinion authored by Justice Amy Coney Barrett, the Court held that section 1782 does not authorize discovery for use in those two forms of international arbitration because only a governmental or intergovernmental adjudicative body qualifies as a "foreign or international tribunal."

The decision resolved two cases, one from the Second Circuit Court of Appeals and the other from the Sixth Circuit. The Sixth Circuit case, ZF Automotive v. Luxshare, Ltd., involved a private commercial arbitration conducted under the rules of the German Institution of Arbitration e.V. ("DIS"), which is a private dispute-resolution organization based in Berlin. In that