ICC amicus curiae brief to provide guidance to the US Supreme Court

31 January 2022

ICC has submitted an amicus curiae brief to provide guidance to the United States Supreme Court regarding a decision it will take that may lead to policy and practical implications on the conduct of international arbitrations worldwide.

The brief is jointly submitted by ICC and the United States Council for International Business (USCIB), which operates ICC’s national committee in the United States (ICC USA).

On 10 December 2021, the United States Supreme Court agreed to hear two cases – ZF Automotive US, Inc. v. Luxshare, Ltd. and AlixPartners, LLP, et al. v. The Fund for Protection of Investors’ Rights in Foreign States – which it consolidated for briefing and oral argument.

The consolidated case raises the question of whether discovery assistance from US courts – further to 28 U.S.C. §1782(a) (“section 1782”) – is available in private commercial arbitrations. Decisions from US Courts of Appeal are split on whether Section 1782 can be used in this context.

This is not the first time the Supreme Court is requested to consider this matter. In March 2021, the Supreme Court granted a petition to hear argument on the same question in Servotronics Inc. v. Rolls-Royce PLC. ICC submitted an amicus curiae brief in that case, but the case was dismissed upon the parties’ agreement.

As in Servotronics, and without expressing a view as to whether private commercial arbitral tribunals constitute a “foreign or international tribunal” within the meaning of Section 1782, ICC submitted an amicus curiae brief on 31 January 2022 to provide guidance to the Supreme Court for its decision.

The Supreme Court’s decision is of particular relevance to users of arbitration, resolving their disputes under the ICC Rules of Arbitration, given ICC’s standing as the world’s preferred arbitral institution and its caseload.

Through its intervention, ICC aims to assist the Supreme Court’s consideration of the degree of deference that the trial court should give to an arbitral tribunal’s views on the discovery sought, in the event the Supreme Court finds that Section 1782 applies to private commercial arbitration.

ICC urges the Supreme Court to emphasise that a US court weighing a Section 1782 petition should afford a very high degree of deference to the arbitral tribunal’s views on the discovery sought. ICC argues that the text and purpose of Section 1782 – designed to assist foreign tribunals – support providing such deference.

The ICC brief also stresses the importance of affording a high degree of deference in recognition of the arbitral tribunal’s primary authority to manage discovery in its own proceeding. By agreeing to arbitrate their dispute under the ICC Rules of Arbitration or other arbitral rules, parties recognise that the arbitral tribunal will resolve the merits of their dispute and that it is the arbitral tribunal that has primary authority and control over the proceedings – including on discovery matters. That choice of the parties should be respected and be given full effect in accordance with the fundamental principle of party autonomy.

Furthermore, in light of the arbitral tribunal’s familiarity with the parties’ dispute, providing a significant degree of deference to the arbitral tribunal’s views would likewise promote efficiency and avoid unnecessary costs. The arbitral tribunal is best placed to assess whether the evidence that may result from a 1782 application will be useful in the underlying arbitration.

Argument before the Supreme Court is set for 23 March 2022.

Read the ICC/USCIB amicus curiae brief in full on the US Supreme Court’s website.