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Freshfields team files amicus brief in ZF Automotive US, Inc. v. Luxshare, Ltd.
A Freshfields team comprising partners Linda H. Martin, Noah Rubins QC, and Nicholas Lingard and senior associates Kate Apostolova and Eric Brandon has filed an amicus brief in the US Supreme Court on behalf of the International Court of Arbitration of the International Chamber of Commerce (“ICC Court”) and the United States Council for International Business (“USCIB”) in ZF Automotive US, Inc. v. Luxshare, Ltd. The case addresses whether 28 U.S.C. § 1782(a), which permits litigants to invoke the authority of US district courts to render assistance in gathering evidence for use in “a foreign or international tribunal,” authorizes those courts to order discovery for use in a purely private foreign commercial arbitration proceeding.
The case is expected to resolve a split amongst the United States Courts of Appeal regarding whether Section 1782 extends to private international commercial arbitrations. If the Supreme Court answers in the affirmative, parties to such arbitrations may be able to obtain discovery from people and entities in the United States in aid of the arbitration. The brief filed by Freshfields on behalf of the ICC Court and USCIB does not take a position on that specific question, but instead asserts that if Section 1782 applies to private commercial arbitrations, US courts should exercise their discretion so as to afford a very high degree of deference to whether the tribunal presiding over a particular arbitration believes the discovery sought is appropriate or welcome. Providing this deference will reinforce the imperative of the fundamental principle that an arbitral tribunal has primary authority over the conduct of proceedings before it, including discovery. Existing Supreme Court case law already permits US courts to exercise their discretion to deny discovery even if the statutory requirements of Section 1782 are met, and this would be a clarification of the breadth of that discretion.
Read the full brief here.
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