Exercising Governmental Authority to Claim Section 1782 Assistance: What Does It Mean?

Abstract

On 13 June 2022, the Supreme Court published a highly anticipated decision in two consolidated cases that limited the availability of 28 USC § 1782. The Court ruled (1) that § 1782 was only available to arbitral tribunals exercising governmental (sovereign) authority; and (2) that neither private contract-based arbitral tribunals nor many investor-state arbitral tribunals meet the sovereign authority test. From a broad strokes perspective, the Court’s narrow reading of § 1782 resolved the split among the Courts of Appeals. The decision left open, however, important questions that will no doubt be the focus of future cases. This article will review the § 1782 cases that played out in the Courts of Appeals prior to the Supreme Court’s decision. The article will then examine the June 2022 decision and identify some of the questions left unanswered. international, commercial, arbitration, tribunal, evidence, 1782, comity, statute, circuit split, legislative history, supreme court