Recently, in ZF Automotive US v. Luxshare, 596 U.S. __, 142 S.Ct. 2078 (2022), the U.S. Supreme Court decided two consolidated cases in which international parties, who were engaged in private arbitration, had moved federal district courts to enforce discovery orders against third parties residing in the United States. The court unanimously held that under 28 U.S.C. Section 1782(a), a federal district court is not authorized to compel a resident within the court's jurisdiction to testify or produce documentation for use in a private arbitration abroad. See ZF Automotive, 142 S.Ct. at 2089. For the purposes of Section 1782(a), a district court may only assist in discovery "for use in a proceeding in a foreign or international tribunal," and the "private" arbitral panels governing the subject arbitrations did not qualify as that type of "tribunal" because they had derived no authority from a "governmental adjudicative body."

The holding of ZF Automotive will have a significant impact on the ability of international parties engaged in private arbitration to obtain evidence from third parties in the United States. According to the opinion, this is both an efficient and equitable outcome because it puts Section 1782(a) more in line with the Federal Arbitration Act, 9 U.S.C. Section 1 et seq. (FAA), which allows an "arbitration panel" to request discovery in domestic arbitrations across state lines. Worded more broadly than its domestic counterpart, Section 1782(a) permits federal district courts to entertain a discovery request from not only "a foreign or international tribunal," but also "any interested person." After reviewing the legislative history and policy rationale of both the FAA and Section 1782(a), the Supreme Court reasoned that Congress would have never intended to "lend the resources of district courts to aid in purely private bodies adjudicating purely private disputes abroad." This was especially so because the purpose of Section 1782(a) was to encourage "reciprocal assistance" between "international governmental bodies."