While the U.S. Supreme Court assiduously asserts the prominence, and sometimes preemption, of the Federal Arbitration Act (FAA), this policy apparently has no effect on the court’s overall view in terms of international arbitrations. In a case that has received very little publicity, but will have a major effect for international practitioners and those who address disputes in foreign mediations and arbitrations, ZF Automotive US v. Luxshare, will be a major impediment to pursuing those cases in foreign private arbitrations.
The decision in ZF Automotive US v. Luxshare, 142 Sup. Ct. 2078, 213 L. Ed. 2d 163, ___U.S.___, (June 13, 2022), which consolidated two cases involving arbitration proceedings abroad in which a party sought discovery in the United States pursuant to 28 U.S.C. Section 1782(a), was written by Justice Amy Coney Barrett. She noted that Congress has long allowed federal courts to assist foreigner international adjudicative bodies in evidence gathering. The current statute, 28 U.S.C. Section 1782, permits district courts to order testimony or the production of evidence “for use in a proceeding in a foreign or international tribunal.”