On 22 March 2021, the Supreme Court of the United States agreed to hear Servotronics, Inc. v. Rolls-Royce PLC, et al., No. 20-794. The case raises the question of whether discovery assistance from US courts – further to 28 U.S.C. §1782(a) (“section 1782”) – is available in private commercial arbitrations. Decisions from US courts of appeal are split on whether ‘section 1782’ can be used in this context.
Without expressing a view as to whether private commercial arbitral tribunals constitute a “foreign or international tribunal”, within the meaning of ‘section 1782’, ICC submitted an amicus curiae brief on 13 May 2021 to provide guidance to the US Court for its decision.
The US Court’s decision is of particular relevance to users of arbitration, resolving their disputes under the ICC Rules of Arbitration, given ICC’s standing as the world’s preferred arbitral institution and its 2020 arbitral tribunal caseload in 113 cities and 65 countries.
Through its intervention, ICC aims to assist the US Court’s decision on the degree of deference that it should give to an arbitral tribunal’s views on the discovery sought, in the event the Court finds that ‘section 1782’ applies to private commercial arbitrations.
ICC urges the US Court to emphasise that a US court weighing a section 1782 petition should afford a very high degree of deference to the arbitral tribunal’s views on the discovery sought, namely arguing that the text and purpose of section 1782 – designed to assist foreign tribunals – support providing such deference.
The ICC brief also stresses the importance of affording a high degree of deference in recognition of the arbitral tribunal’s primary authority to manage discovery in its own proceeding. By agreeing to arbitrate their dispute under the ICC Rules of Arbitration or other major arbitration rules, parties recognise that the arbitral tribunal will resolve the merits of their dispute and that it is the arbitral tribunal who has primary authority and control over the proceedings – including on discovery matters. That choice of the parties should be respected and be given full effect in accordance with the fundamental principle of party autonomy.
Furthermore, in light of the arbitral tribunal’s familiarity with the parties’ dispute, providing a significant degree of deference to the arbitral tribunal’s views would likewise promote efficiency and avoid unnecessary costs. The arbitral tribunal is best placed to assess whether the evidence that may result from a 1782 application will be useful in the underlying arbitration.
The matter remains pending before the US Supreme Court and judgment is not expected before the end of 2021.
Read the ICC amicus curiae brief in full on the US Supreme Court’s website.