In the consolidated cases of ZF Automotive US, Inc., et al. v. Luxshare, Ltd., No. 21-402 and AlixPartners, LLP, et al. v. Fund for Protection of Investors’ Rights in Foreign States, No. 21-518, the Supreme Court unanimously held that only governmental and intergovernmental adjudicative bodies constitute a “foreign or international tribunal” under 28 U.S.C. §1782.  The decision resolved a split within the federal appellate courts on the question, with the Fourth and Sixth Circuits previously holding that §1782 could be used in private international arbitrations and the Second, Fifth, and Seventh Circuits determining that they could not.  

The Court stated that the primary purpose of §1782 was to encourage comity and reciprocal assistance, which would not be accomplished by providing discovery assistance in private adjudications.  The Court also noted that §1782 provides broader discovery than allowed under the FAA, which governs domestic arbitrations, so it would not make sense to allow foreign arbitrations discovery assistance that would be precluded for litigants in domestic arbitrations.

While some parties may disagree with the Court’s interpretation to limit the scope of §1782, many will appreciate the decision, which provides a clear test to determine applicability of the statute and resolves the split decision of the lower courts, allowing for consistent application across the United States.