Did you or your company agree to private arbitration before a non-governmental authority (NGO) of any disputes that may occur between you and a foreign person or entity? If so, the United States Supreme Court has decided you do not have the right to subpoena discovery, documents or testimony from non-parties in the United States.
In ZF Automotive US, Inc. v. Luxshare, Ltd, on June 13, 2022 the United States Supreme Court held, in a foreign private arbitration that is not a governmental or intergovernmental adjudicative body, the federal court cannot aid in the enforcement of a discovery subpoena issued by the arbitrators and the parties that seeks documents and/or testimony from a nonparty in the United States. The Supreme Court based its holding on the text of the applicable federal statute 28 U.S.C. §1782. The statute only permits district courts to order testimony or the production of evidence “for use in a proceeding in a foreign or international tribunal.” The Supreme Court held that the private arbitration before a NGO is not a “proceeding in a foreign or international tribunal.” The Court concluded that NGO arbitrations do not have the imprimatur of the foreign government and, therefore, under the statute there is no basis to enforce a foreign arbitration subpoena in the United States.
If you do business overseas it is essential to have your business attorney review the alternative dispute resolution provisions of your Agreements to assure you can get a full and fair hearing in the event a dispute should arise in your business relationships.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
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