Analysis

Questions Remain About Powerful Foreign Discovery Tool

By Caroline Simson (June 14, 2022, 9:09 PM EDT) -- Although the U.S. Supreme Court on Monday decisively excluded private commercial arbitrations abroad from the scope of a foreign discovery statute, some ambiguity in the justices' unanimous opinion could mean that certain types of investment treaty arbitration still qualify under the statute.

The high court concluded that only foreign or international tribunals that are imbued with governmental authority fall within the ambit of Section 1782 of the U.S. Code, which allows federal courts to order entities in their districts to turn over evidence to be used in proceedings taking place before those bodies.

Private commercial arbitration proceedings do not fall within...

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