Will the Supreme Court Resolve the Split in the Circuits Concerning Use of Discovery in Private International Arbitration?
By Leslie A. Berkoff and Tina M. Kassangana
Section 1782 of Title 28 of the United States Code provides that a U.S. district court may compel testimony or document production in connection with a proceeding in a "foreign or international tribunal" upon request by an "interested person." 28 U.S.C. § 1782. However, whether or not a private international arbitration panel constitutes a tribunal capable of authorizing service of subpoenas under this Section is a question that has led to a split in the Circuits, with the Second and Fifth Circuits holding that arbitration panels do not constitute tribunals and the Fourth Sixth Circuits holding that they do.
The Supreme Court may review a writ for certiorari which is anticipated to be filed by Rolls-Royce in the case of Servotronics, Inc. v. Boeing Co., 954 F.3d 209 (4th Cir. 2020), concerning an arbitration pending before the Chartered Institute of Arbitrators (CIArb). In connection with the arbitration, Servotronics filed an ex parte application in the District Court of South Carolina to obtain subpoenas under §1782. The District Court denied the request holding that CIArb was not a "tribunal" capable of issuing subpoenas under §1782. Servotronics appealed and the Fourth Circuit reversed noting that under a prior Supreme Court decision in Intel Corp. there exists congressional intent and policy to "increase international cooperation . . . before all foreign and international tribunals."(emphasis added).
Should the Supreme Court grant writ, and uphold the Fourth Circuit, it will expand the ability for parties to utilize discovery in the context of international private, non-state sponsored arbitration proceedings. Parties who regularly evaluate the pro or cons of arbitration based upon limited discovery will need to be mindful of the results these determinations.