USA Trends and Developments Contributed by: Matthew H. Kirtland, Timothy Tyler, Katie Connolly and Taylor LeMay, Norton Rose Fulbright
national arbitrations to obtain US-style discovery in assistance of international arbitrations. In ZF Automotive US, Inc. v Luxshare, Ltd , the Supreme Court unanimously held that “only a governmental or intergovernmental adjudicative constitutes a ‘foreign or international tribunal’ under 28 U.S.C. §1782”, a statute that permits parties to obtain discovery in the United States in aid of non-US legal proceedings. This decision curtailed the broader application of Section 1782 that had followed the Court’s earlier decision in Intel Corp v Advanced Micro Devices, Inc. recognising the Directorate-General for Competition of the Com - mission of the European Communities as a “tribunal” under the statute because it acted as a first-instance decision-maker. In ZF Automotive , the Supreme Court expressed its concern that extending Section 1782 would cause “significant tension with the FAA”, as Section 1782 “permits much broader discovery” than the FAA, creating “a notable mismatch between for - eign and domestic arbitration”. Award enforcement While most of the Supreme Court’s enforcement- related cases dealt with sovereign immunity questions (as discussed below), in Yegiazaryan v Smagin (2023) the Supreme Court confirmed that in certain circum - stances creditors could use the US racketeering law (RICO) as part of their effort to enforce foreign arbitral awards. The decision used a balancing test to hold that Smagin, a foreign national, was eligible to recover RICO damages (which can allow treble compensatory damages) because Yegiazaryan, also a foreign nation - al, had engaged in racketeering activity in or directed from California aimed at frustrating Smagin’s recovery efforts. The Court agreed with the Ninth Circuit that this caused Smagin a domestic injury by impairing his ability to enforce his California judgment, which arose out of an arbitral award issued in London. Award enforcement against sovereigns, their agencies and instrumentalities The interpretation and application of the Foreign Sovereign Immunity Act (FSIA) was a popular topic at the Supreme Court in the last decade. In Republic
of Hungary v Simon (2025), the Supreme Court held that Hungary’s assets were immune from enforcement efforts pursued by Holocaust survivors and their heirs to recover from Hungary property confiscated in the Second World War. The plaintiffs invoked the expropri - ation exception, arguing that the property at issue was expropriated in violation of international law and that Hungary had commingled the profits from the sale of the confiscated property with its general funds, which it later used for commercial activities in the US, such as issuing bonds and purchasing military equipment. The Court rejected the plaintiffs’ arguments, instead holding that there must be more “commingling”, and that the FSIA’s expropriation exception does not apply unless plaintiffs plausibly trace the confiscated prop - erty or its proceeds to specific commercial activities in the US. Most recently, in an opinion just handed down, CC/Devas (Mauritius) Ltd v Antrix Corp. (2025), the Supreme Court held that the FSIA’s “arbitration excep - tion” to immunity does not impose a separate set of “minimum contacts” requirements for personal juris - diction. The essential question was whether a sover - eign defendant must also have some level of contacts with the jurisdiction into which it is being forced. Antrix Corporation, owned by the Republic of India, entered into arbitral proceedings with Devas Multimedia Pri - vate Ltd. The arbitration award was confirmed in both France and the UK, but the confirmation action was dismissed in the US for lack of personal jurisdiction over Antrix. The US Supreme Court reversed the low - er court and held that there was personal jurisdiction over Antrix, as governed by the Foreign Sovereign Immunities Act (FSIA), which permits the exercise of personal jurisdiction over a foreign state when (i) an FSIA exception to sovereign immunity applies and (ii) the defendant has been properly served per the FSIA’s specialised rules for service of process. The Court rejected the lower court’s argument that, in addition to the FSIA provision, the defendant must survive a “minimum contacts” analysis. Instead, the Court held that personal jurisdiction over foreign state-defend - ants is governed solely by the FSIA’s two-pronged requirement.
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