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Cross-Border Latham Team Delivers Unanimous Supreme Court Victory for ZF Automotive

June 14, 2022
Decision will have wide-reaching effects for businesses and individuals with arbitration agreements worldwide.

Representing ZF Automotive US, Inc., a cross-border team of Latham Supreme Court & Appellate, Complex Commercial, and International Arbitration lawyers collaborated to successfully deliver a unanimous US Supreme Court win in ZF Automotive US, Inc. v. Luxshare, Ltd., No. 21-401. The case presented the question whether a private commercial arbitration abroad qualifies as a “foreign or international tribunal” for purposes of 28 U.S.C. 1782, which authorizes federal district courts to compel discovery in service of proceedings before such tribunals abroad. The Court held that Section 1782 does not cover purely private commercial arbitrations, and it accordingly rejected Luxshare’s request for discovery from ZF.

The litigation arose from a dispute over ZF’s 2017 sale of two business units to Hong Kong-based Luxshare. The parties’ agreement provided that any dispute related to the transaction would be decided in a private arbitration under the rules of the German Institution of Arbitration (DIS) in Germany. Luxshare announced its plans to initiate arbitration against ZF. In advance of filing the arbitration, Luxshare asked a US district court in Michigan to order ZF to produce evidence under section 1782, which authorizes courts to order discovery for use in a proceeding in a “foreign or international tribunal.” The district court ruled against ZF, holding that a private arbitration abroad qualified as a “foreign tribunal” and ordered ZF to provide discovery. The Latham team appealed to the Sixth Circuit.

Latham convinced the Supreme Court to grant a stay of the discovery order, and then a petition for writ of certiorari before judgment, even though the Sixth Circuit had not yet ruled, to resolve the scope of section 1782. The team argued that the statute’s text, context, and history together compelled the conclusion that “foreign or international tribunals” encompasses only governmental and intergovernmental bodies—not private commercial arbitrations.

In a unanimous decision authored by Justice Amy Coney Barrett, the Court ruled in ZF’s favor and reversed the District Court’s discovery order. Embracing the Latham team’s reading of Section 1782, the Court agreed that a private commercial arbitration seated outside the US is not a “foreign or international tribunal” under Section 1782. Instead, the provision’s text, context, and history make clear that the statute only authorizes discovery for use before governmental or intergovernmental adjudicatory bodies. Based on that interpretation, the Court rejected Luxshare’s discovery request. The Court’s holding will have wide-reaching effects for businesses and individuals with arbitration agreements worldwide, and will ensure that parties to foreign commercial arbitrations cannot improperly take advantage of discovery in US courts.

The Latham team was led by Washington D.C.-based partner Roman Martinez (who argued the case), along with partners Sean Berkowitz in Chicago, Christoph Baus in Hamburg, and Alena McCorkle in Frankfurt. The team also included counsel Zachary Rowen in New York; associates Tyce Walters, Brent Murphy, and Graham Haviland in Washington, D.C.; Justin Kirschner in New York; and Stefanie Engmann in Munich, and Viviane Opitz in Frankfurt. Washington D.C.-based partners Greg Garre, Rick Bress, Melissa Arbus Sherry, and Michael Bern, along with New York associate Samir Deger-Sen and Washington, D.C. associate Caroline Flynn, served as moot court judges.