Client Alert: US Supreme Court Holds That US Courts Cannot Assist Discovery in Private Foreign or International Arbitrations

Litigants in foreign arbitrations have long looked to 28 U.S.C. § 1782 as a potential avenue for obtaining something close to US-style discovery. But, the US Supreme Court unanimously held this week that this federal statute allowing US courts to assist “foreign or international tribunal[s]” in gathering evidence does not apply to private adjudicative bodies, such as private international commercial arbitral tribunals. The Court’s opinion in ZF Automotive US, Inc. v. Luxshare, Ltd., 596 U.S. ___ (2022), thus forecloses parties’ utilization of 28 U.S.C. § 1782(a) to obtain discovery in the United States for use in purely private international arbitrations and has the following implications:
 
  • Parties to private international arbitrations now have clarity regarding their options for seeking discovery. The prior circuit split, described in this client alert, caused uncertainty and allowed for forum shopping. 
  • Parties will have more limited options to develop evidence in private international arbitration proceedings with a US nexus, although certain state-law options may still be available.
  • Parties will no longer be able to use § 1782 to publicize commercial arbitration proceedings that are intended to be confidential.
  • Section 1782 will also not be an available tool in at least some investor-state arbitrations—namely, those conducted pursuant to bilateral investment treaties that do not confer governmental authority on the arbitral body, such as those governed by the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL). It is unclear whether investor-state arbitrations conducted through organizations with governmental connections, most notably the International Centre for Settlement of Investment Disputes (ICSID), would qualify.

Read the full alert here

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© 2026 Jenner & Block LLP. Attorney Advertising. Jenner & Block LLP is an Illinois Limited Liability Partnership including professional corporations. This publication, presentation, or event is not intended to provide legal advice but to provide information on legal matters and/or firm news of interest to our clients and colleagues. Readers or attendees should seek specific legal advice before taking any action with respect to matters mentioned in this publication or at this event. The attorney responsible for this communication is Brent E. Kidwell, Jenner & Block LLP, 353 N. Clark Street, Chicago, IL 60654-3456. Prior results do not guarantee a similar outcome. Jenner & Block London LLP, an affiliate of Jenner & Block LLP, is a limited liability partnership established under the laws of the State of Delaware, USA and is authorised and regulated by the Solicitors Regulation Authority with SRA number 615729. Information regarding the data we collect and the rights you have over your data can be found in our Privacy Notice. For further inquiries, please contact dataprotection@jenner.com.

Client Alert: US Supreme Court Holds That US Courts Cannot Assist Discovery in Private Foreign or International Arbitrations
Litigants in foreign arbitrations have long looked to 28 U.S.C. § 1782 as a potential avenue for obtaining something close to US-style discovery. But, the US Supreme Court unanimously held this week that this federal statute allowing US courts to assist “foreign or international tribunal[s]” in gathering evidence does not apply to private adjudicative bodies, such as private international commercial arbitral tribunals. The Court’s opinion in ZF Automotive US, Inc. v. Luxshare, Ltd., 596 U.S. ___ (2022), thus forecloses parties’ utilization of 28 U.S.C. § 1782(a) to obtain discovery in the United States for use in purely private international arbitrations and has the following implications:
 
  • Parties to private international arbitrations now have clarity regarding their options for seeking discovery. The prior circuit split, described in this client alert, caused uncertainty and allowed for forum shopping. 
  • Parties will have more limited options to develop evidence in private international arbitration proceedings with a US nexus, although certain state-law options may still be available.
  • Parties will no longer be able to use § 1782 to publicize commercial arbitration proceedings that are intended to be confidential.
  • Section 1782 will also not be an available tool in at least some investor-state arbitrations—namely, those conducted pursuant to bilateral investment treaties that do not confer governmental authority on the arbitral body, such as those governed by the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL). It is unclear whether investor-state arbitrations conducted through organizations with governmental connections, most notably the International Centre for Settlement of Investment Disputes (ICSID), would qualify.

Read the full alert here

Related Capabilities

Related Locations

© 2026 Jenner & Block LLP. Attorney Advertising. Jenner & Block LLP is an Illinois Limited Liability Partnership including professional corporations. This publication, presentation, or event is not intended to provide legal advice but to provide information on legal matters and/or firm news of interest to our clients and colleagues. Readers or attendees should seek specific legal advice before taking any action with respect to matters mentioned in this publication or at this event. The attorney responsible for this communication is Brent E. Kidwell, Jenner & Block LLP, 353 N. Clark Street, Chicago, IL 60654-3456. Prior results do not guarantee a similar outcome. Jenner & Block London LLP, an affiliate of Jenner & Block LLP, is a limited liability partnership established under the laws of the State of Delaware, USA and is authorised and regulated by the Solicitors Regulation Authority with SRA number 615729. Information regarding the data we collect and the rights you have over your data can be found in our Privacy Notice. For further inquiries, please contact dataprotection@jenner.com.

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