Comments on: Article of the Day: Eric Sherby, “Is an Arbitrator a ‘Tribunal’ Under Section 1782? The FAA Red Herring” https://lettersblogatory.com/2022/05/06/article-of-the-day-eric-sherby-is-an-arbitrator-a-tribunal-under-section-1782-the-faa-red-herring/ The Blog of International Judicial Assistance Wed, 13 Nov 2024 22:18:00 +0000 hourly 1 https://wordpress.org/?v=6.9.4 By: Ted Folkman https://lettersblogatory.com/2022/05/06/article-of-the-day-eric-sherby-is-an-arbitrator-a-tribunal-under-section-1782-the-faa-red-herring/#comment-3640 Thu, 12 May 2022 01:27:11 +0000 https://lettersblogatory.com/?p=30923#comment-3640 In reply to Ken Reisenfeld, Partner and Leader, Investor-State Arbitration.

Ken, thanks for this comment. I looked back recently at some early Letters Blogatory posts, and I found a discussion from one of the very first posts, in January 2011. I was struck by the inconsistency between the right to take discovery domestic and international arbitration then, and while I’ve gone back and forth on it, I still find it anomalous and think it likely that it will play a role in the Supreme Court’s decision. That’s not to take issue with Eric’s article, but rather, to suggest that the anomaly may lead the Court to a bit of a re-think.

]]> By: Ken Reisenfeld, Partner and Leader, Investor-State Arbitration https://lettersblogatory.com/2022/05/06/article-of-the-day-eric-sherby-is-an-arbitrator-a-tribunal-under-section-1782-the-faa-red-herring/#comment-3639 Wed, 11 May 2022 22:47:52 +0000 https://lettersblogatory.com/?p=30923#comment-3639 Eric Sherby’s excellent blog reviews a key interpretive issue arising in the pending U.S. Supreme Court cases (ZF Automotive and AlixPartners) which, at long last, may provide a uniform federal court answer whether a party to a non-US sited commercial arbitration may obtain discovery in United States courts under 28 U.S.C. § 1782. Eric reviews the Court’s prior support for certainty in resolving international disputes (Scherk, Mitsubishi, and Intel) and convincingly explains that this same rationale should lead the U.S. Supreme Court in the pending cases to reject the the so-called “FAA Inconsistency Objection” raised by the parties objecting to application of Section 1782. Congratulations to Eric for his trenchant analysis.

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