ZF Automotive US, Inc., et al. v. Luxshare, Ltd. Attracts Numerous Amici Curiae

As previously discussed in “28 U.S.C. § 1782: U.S. Supreme Court to Address Circuit Split,” ‎ in   ZF ‎Automotive US, Inc., et al. v. Luxshare, Ltd. and AlixPartners, LLP, et al. v. The Fund for ‎Protection of Investors’ Rights in Foreign States, Case No. 21-401, the Supreme Court is poised to address two issues: (1) whether Section 1782 extends to  private commercial arbitration and (2) whether an ad hoc arbitration to resolve a commercial dispute between a private party and a foreign state is a “foreign or international tribunal” where the arbitral panel does not exercise any governmental or quasi-governmental authority.

Not surprisingly, ZF Automotive has attracted a host of amici curiae from the across the globe with a number of them in support of petitioners.^[1] One in particular may be of special interest, the brief filed by the United States Government. https://www.supremecourt.gov/DocketPDF/21/21-401/211877/20220131180354032_21-401tsacUnitedStates.pdf

The Government argues in support of petitioners that an arbitration before a nongovernmental adjudicator to which the parties consent, whether based on contract or treaty, is not a “proceeding in a foreign or international tribunal” within the meaning of Section 1782. Among the Government’s reasons supporting its position is that authorizing discovery for private arbitration would “require imputing to Congress in 1964 an intent to accord parties to foreign arbitration greater access to discovery than federal law has long afforded for parties to domestic arbitration.”  The Government further posits that an investor-state arbitration before a nongovernmental arbitral panel lies outside Section 1782 because the panel’s power is derived from the parties’ consent and not governmental authority.  The Government additionally maintains Congress could not have envisioned the application of Section 1782 to investor-state arbitrations because the first international agreements containing provisions for investor-state arbitration were not adopted until several years after 1964.

The Supreme Court will have much to consider on March 22, 2022.

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^{[1] Brief Amici Curiae Of Dr. Xu Guojian, Li Hongji, Zhu Yongrui, Tang Qingyang, And Dr. Zhang Guanglei In Support Of Petitioners; Brief For Amicus Curiae Halliburton Company In Support Of Petitioners Zf Automotive Us, Inc., Gerald Dekker, And Christophe Marnat; Brief Of The Chamber Of Commerce Of The United States Of America And Business Roundtable As Amici Curiae In Support Of The Petitioners; Brief of International Arbitration Center in Tokyo as Amicus Curiae in Support of Neither Party; Brief Of Professor Yanbai Andrea Wang As Amicus Curiae In Support Of Neither Party; Brief Of The International Court Of Arbitration Of The International Chamber Of Commerce And The United States Council For International Business As Amici Curiae In Support Of Neither Party; Brief Of Institute Of International Bankers As Amicus Curiae In Support Of Petitioners}