Recently, the United States Supreme Court made a significant ruling that impacts parties in strictly private foreign or international arbitrations seeking to obtain discovery by using Section 1782. In a unanimous decision, the Supreme Court held that Section 1782 does not apply to parties in private foreign or international arbitrations. This decision will have significant implications for businesses, individuals, and investors who rely on international arbitration to resolve disputes. In this blog, we will explore the Supreme Court’s ruling and what it means for parties seeking to obtain discovery in private foreign or international arbitrations.
Understanding Section 1782
Section 1782 is a provision of the United States Code that allows parties to seek discovery from a person or entity who resides within the territorial jurisdiction of the United States . In international arbitration, parties often utilize this provision to request evidence or testimony from individuals or companies within the US for use in the arbitration proceeding.
Parties engaged in a foreign proceeding and seeking evidence or testimony located in the United States can also utilize Section 1782 through an application to a US District Court. It will grant discovery for use in the foreign proceeding if it determines that the application is appropriate under Section 1782. The court must consider several factors when determining whether to grant a discovery request, such as the nature of the foreign proceeding and the receptivity of US courts to provide aid in that type of proceeding. Additionally, courts must consider any countervailing interests against granting discovery under Section 1782, including privacy or privilege concerns and international comity concerns. If a court determines that all requirements have been met, it will grant the discovery request and direct a person within the district to provide the requested material.
Section 1782 Service of Process for Depositions
Section 1782 also sets forth procedures for service of process and requests for depositions or testimony located outside of the United States. This process requires an application to the US District Court in which the action is pending on behalf of a foreign court with jurisdiction over the matter. The application is made ex parte and must include a statement of facts showing that:
(1) the foreign tribunal has jurisdiction
(2) the respondent resides or regularly does business within the district in which the application is made, and
(3) service requested is necessary for use in a proceeding before such foreign tribunal.
Once the application is granted, the Court will issue an order authorizing service of process. The order must describe how and when process can be served, as well as provide instructions regarding what to do if personal service cannot be obtained.
Additionally, the court may also issue a subpoena commanding any person within the district to attend and give testimony or produce documents. The court may also order any person to produce documents even though such person is not a party or resident of the district in which the application was made. The court may also designate agents who can receive service on behalf of a respondent located outside the court’s district. Once process is served, it must be returned to the court with an affidavit that contains details of the service, such as the name and address of the respondent, when and where process was served, what was served, and who sent it.
No Proper Service
Without proper service, a court may not have jurisdiction to proceed with a case and any judgment rendered may be void. It is important for businesses operating in multiple jurisdictions to understand local laws regarding service of process, as well as the procedural rules for each jurisdiction in which they are operating. Knowing when to serve legal documents and filing of court papers is a vital part of navigating any legal dispute.
Furthermore, being aware of timelines and deadlines established by local courts is critical to ensure compliance with the law. Strict rules regarding service can often mean that a case may be delayed or dismissed if not properly followed. For this reason, businesses should understand the process of service and seek legal advice to ensure that all necessary steps have been taken.
The Supreme Court’s Ruling
In its recent ruling, the Supreme Court clarified that Section 1782 does not apply to parties in private foreign or international arbitrations. The Court based its decision on several factors, including the language and legislative history of Section 1782, the differences between private arbitrations and conventional court litigation, and the presumption against extraterritoriality. The Court concluded that because private international arbitrations are by nature non-judicial proceedings, Section 1782 does not provide a basis for discovery in relation to such proceedings. This ruling is important because it clarifies the scope of Section 1782 and limits its potential application to certain types of disputes.
Implications of the Ruling
The Supreme Court’s ruling means that parties involved in private foreign or international arbitrations cannot use Section 1782 to obtain discovery from US-based persons or entities. This decision will impact businesses, investors, and other individuals who rely on international arbitration to resolve disputes, particularly those involving complex cross-border issues. As a result of the ruling, all parties involved in an international arbitration must prepare more thoroughly prior to entering into negotiations. They should also consider alternative ways of obtaining evidence, such as private investigations or third-party requests for assistance. See United States Supreme Court Holds Section 1782 Discovery Cannot Be Used for Private Arbitrations (americanbar.org)
In addition, the ruling raises questions about how parties should proceed if they need discovery for a private arbitration. For example, parties may be able to obtain evidence outside of the United States through other means, such as letters rogatory or bilateral treaties. Alternatively, a party may seek discovery from individuals or entities located in the United States under state law or by bringing a separate action in federal court. Ultimately, each dispute must be evaluated on a case-by-case basis.
Alternatives for Obtaining Discovery
While the Supreme Court’s ruling limits the use of Section 1782 in private foreign or international arbitrations, parties still have other options for obtaining discovery. For example, they can seek discovery from non-parties to the arbitration proceeding, either by using domestic courts or through international legal assistance treaties. Additionally, the parties to the arbitration can agree to share information voluntarily, although this approach may not be appropriate in all circumstances. Finally, parties should consider whether the arbitration rules governing the proceeding provide a mechanism for obtaining documents and other evidence. No matter what approach is taken, it’s important to remember that there are still options available when seeking discovery in a private foreign or international arbitration proceeding.
Takeaways for Parties in Private Foreign or International Arbitrations
The Supreme Court’s ruling on Section 1782 underscores the importance of careful and strategic planning when pursuing discovery in private foreign or international arbitrations. Parties to such proceedings should consider all available options for obtaining evidence, including alternative methods of discovery and voluntary sharing of information. Additionally, they should work closely with legal counsel to ensure compliance with all relevant laws and regulations. For more information on discovery issues, please visit There are unresolved Questions After Supreme Court’s Ruling on International Arbitration Discovery – Transnational Matters
The United States Supreme Court’s ruling on Section 1782 for private foreign or international arbitrations has significant implications for businesses, investors, and individuals involved in cross-border disputes. While the ruling limits the use of Section 1782 for obtaining discovery, parties still have other options available to them. Careful planning and collaboration with legal counsel can help parties navigate these complexities and ensure that they are able to obtain the evidence they need to protect their interests in private foreign or international arbitrations. Our office know how to navigate the intricacies of international disputes, Contact Our Office – Transnational Matters