US Supreme Court to decide whether 28 U.S.C. § 1782 includes international arbitration

Supreme Court

International Arbitration Alert

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The US Supreme Court will rehear Servotronics Inc. v. Rolls-Royce PLC, Case No. 19-1847 (7th Cir. 2020), in which the Seventh Circuit Court of Appeals concluded that 28 U.S.C. § 1782 does not include international arbitration proceedings. 

As noted in our prior alert, the Seventh Circuit, in its September 2020 decision, declined Servotronics’ request for discovery assistance in connection with a private arbitration in the United Kingdom. Servotronics petitioned the Supreme Court for certiorari to challenge this decision, which the Court granted on Monday.

§ 1782(a) permits any party or other interested person involved in proceedings before a foreign or international tribunal, or the tribunal itself, to make a request to a US federal district court to compel discovery from a person or entity found in the district in which the court sits. Over the past year, the question of whether § 1782 permits discovery in connection with an international commercial arbitration has been the subject of considerable disagreement among US federal courts, leading to a clear circuit split on the issue. While the Fourth and Sixth Circuits have held that § 1782 applies to private arbitral tribunals, the Seventh Circuit sided with decisions of the Second and Fifth Circuits in holding that it does not. Meanwhile, the Second Circuit reaffirmed a prior decision aligned with the Seventh Circuit’s interpretation. Other cases on this issue are currently pending in the Third and Ninth Circuits, neither of which have previously addressed it. Additional alerts that we have written on this subject are available here, here and here. Notably, the Seventh Circuit’s decision concerns the same parties and underlying arbitration as the Fourth Circuit decision, despite reaching the opposite conclusion.

Intervention by the Supreme Court is likely to provide much-needed clarity for an issue in which the legal landscape has long been fractured. However, importantly, the Supreme Court is unlikely to hear this case before Fall 2021, while the underlying arbitration between Servotronics and Rolls-Royce is scheduled to go forward in May. Therefore, by the time the Supreme Court hearing is scheduled to take place, it is likely that the underlying arbitration may already have been resolved, and the issue may therefore become moot. Thus, it remains to be seen whether the Supreme Court’s hearing will ultimately take place and what, if any, decision the Court renders.

We will continue to monitor this issue and report any further developments. For further information regarding 28 U.S.C. § 1782, please contact the authors or your regular DLA Piper relationship lawyer.