Esha Nath
Published On: February 01, 2022 at 19:45 IST
The International Criminal Court (ICC) has submitted an Amicus Curiae Brief to the US Supreme Court to provide guidance on a Decision that it could adopt and have a Policy and practical impact on the conduct of International Arbitration Worldwide.
On 22 March 2021, the Supreme Court of the United States agreed to hear Servotronics, Inc. v. Rolls-Royce PLC, et al., No. 20-794. The Case raises the question of whether discovery assistance from US Courts – further to 28 U.S.C. §1782(a) (“section 1782”) – is available in Private Commercial Arbitrations. Decisions from US Courts of Appeal are split on whether ‘Section 1782’ can be used in this context.
The Briefing was submitted jointly by the ICC and the United States Council for International Business (USCIB), which administers the ICC National Committee (ICC USA) in the United States.
On 10 December 2021, the United States Supreme Court agreed to hear two cases ZF Automotive US, Inc. v. Luxshare, Ltd. and Alix Partners, LLP, et al. v. The Fund for Protection of Investor’s Rights in Foreign States – which it consolidated for Briefing and Oral Argument.
Without expressing a view as to whether private commercial Arbitral Tribunals constitute a “Foreign or International Tribunal”, within the meaning of ‘Section 1782’, ICC submitted an Amicus Curiae brief on 13 May 2021 to provide guidance to the US Court for its decision.
The U.S. Court’s Decision is particularly relevant to Arbitration Users, resolving their Disputes under ICC Arbitration Rules. The ICC summary emphasizes the importance of providing a high level of respect for the recognition of the primary Authority to conduct Investigations in the Arbitral Tribunal’s own proceedings. By agreeing to Arbitrate their disputes under the ICC Rules of Arbitration or other major Arbitration Rules, the parties acknowledge that the Arbitral Tribunal will resolve their Disputes and that it is the Arbitral Tribunal which has the primary Authority and control over its activities.
An Arbitration Tribunal is given the best place to evaluate whether the Evidence as a result of a 1782 Appeal, will be valid in the underlying Arbitration. The matter is pending in the US Supreme Court and a Verdict is not expected before the end of 2021.