Calling a Spade a Spade: are ‘arbitral tribunals’ to be considered tribunals in light of recent EU case law and the USSC’s judgment of 13 June 2022?
2022 Investment Arbitration Outlook Uría Menéndez, n.º 10
The debate as to the legal nature of arbitral tribunals is not a new one. Since the Court of Justice of the European Union (‘CJEU’) issued its landmark decision in Achmea, a great many judgments have followed. One of them has recently returned the matter to the centre of legal debate, albeit in a very different context and around a very different problem. We are referring to the judgment of 13 June 2022 issued by the United States Supreme Court (‘USSC’) in relation to United States Statute, Section 1782 (a) of Title 28 (‘§ 1782’), in which the USSC limited the recourse to discovery from which some international arbitrations had been benefitting (‘Judgment’). The USSC concluded unanimously that the reference to ‘foreign or international tribunal’ in § 1782, which had given rise to a circuit split, only encompassed governmental or quasi-governmental bodies and therefore excluded arbitral tribunals. The two debates vary in their approach, content and depth, but they concur on the need for a body to have a sort of ‘government spine’ to qualify as a tribunal.