“Obtaining Evidence in the United States from Non-parties to an International Arbitration in a Post-1782 World”

On November 15, 2023, during the 5th annual New York Arbitration Week, Kilpatrick partner Thomas G. Allen spoke at an event covering the possibility of obtaining evidence from non-parties to an international arbitration following the 2022 U.S. Supreme Court decision in ZF Automotives US Inc. v. Luxshare, Ltd., 596 U.S. ___ (2022) (“ZF Automotives”). In that decision, the U.S. Supreme Court ruled unanimously that discovery under 28 U.S.C. § 1782 is not available in support of private foreign or international arbitration proceedings, resolving a U.S. Circuit Court split on the issue.

With the door now closed for discovery under 28 U.S.C. § 1782 in support of international arbitration, the event explored parties’ prospects of using an alternative means to obtain non-party evidence, namely 9 U.S.C. § 7 (i.e., Section 7 of the Federal Arbitration Act (the “FAA”)). Section 7 provides in relevant part that: “The arbitrators selected … or a majority of them, may summon in writing any person to attend before them or any of them as a witness and in a proper case to bring with him or them any book, record, document, or paper which may be deemed material as evidence in the case.”

To explore the possibilities (and limits) of this alternative, the event consisted of three mock applications under Section 7 of the FAA for non-party evidence in support of a hypothetical arbitration. 

Sven Volkmer (White & Case LLP) and Kiera Gans (DLA Piper) moderated the event.

Thomas G. Allen (Kilpatrick Townsend LLP), Martin Gusy (Bracewell LLP), Jessica Beess und Chrostin (King & Spalding LLP), and Thomas W. Walsh (Freshfields Bruckhaus Deringer LLP) argued the mock applications.

Klaus Reichert SC (Brick Court Chambers), Dana MacGrath (MacGrath Arbitration), Yasmine Lahlou (Chaffetz Lindsey), and Faith Hochberg (Hochberg ADR LLC) served as arbitrators and judge, respectively, of the three applications.

Click here for more information on the event.