Overview
On August 12, 2024, Steptoe partner Steven Davidson was quoted in a Law360 article “2nd. Circ. Opinion May Moot Discovery Statute For Arbitration.” The article discusses how the Second Circuit court has narrowed the scope of the foreign discovery statute, Section 1782 of the US Code, ruling that federal courts cannot demand discovery for arbitration before the International Centre for Settlement of Investment Disputes (ICSID). This follows a 2022 US Supreme Court ruling that the statute only applies to governmental or intergovernmental adjudicative bodies. The court rejected the argument that ICSID carries sufficient governmental authority.
Davidson said: “I think the Second Circuit took its cue from the Supreme Court. Although [the justices] didn't resolve the precise ICSID question, they gave a pretty strong signal that unless somebody was very clearly imbued with government authority, they didn't think it was enough to qualify under their standard of what constitutes a foreign or international tribunal under 1782. In other words, they created a very high bar to get over.”
