Nos. 21-401, 21-518
IN THE
Supreme Court of the United States
ZF AUTOMOTIVE US, INC., ET AL.,
Petitioners,
v.
LUXSHARE, LTD.,
Respondent.
ALIXPARTNERS, LLP, ET AL.,
Petitioners,
v.
THE FUND FOR PROTECTION OF
INVESTORS’ RIGHTS IN FOREIGN STATES,
Respondent.
On Writs of Certiorari to the
United States Court of Appeals
for the Sixth and Second Circuit
BRIEF AMICI CURIAE OF GEORGE A.
BERMANN, ROBERT H. SMIT, D. BRIAN KING,
RUTH TEITELBAUM, AND LUCAS BENTO
IN SUPPORT OF RESPONDENTS LUXSHARE,
LTD. AND THE FUND FOR THE PROTECTION
OF INVESTORS’ RIGHTS IN FOREIGN STATES
|
OREN J. WARSHAVSKY |
JONATHAN B. NEW |
Counsel for Amici Curiae
March 2, 2022
WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002
[Page i]
i
[Page iii]
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Abdul Latif Jameel Transportation Co.
v. FedEx Corp. (In re Application to
Obtain Discovery for Use in Foreign
Proceedings),
939 F.3d 710 (6th Cir. 2019).......................... passim
In re Application of Chevron Corp.,
762 F. Supp. 2d 242 (D. Mass. 2010)................ 27
Azar v. Allina Health Servs.,
139 S. Ct. 1804 (2019) ....................................... 28
BG Grp., PLC v. Republic of Argentina,
572 U.S. 25 (2014) ....................................... 16, 18
Bostock v. Clayton Cty., Ga.,
140 S. Ct. 1731 (2020) ................................. 5, 9, 31
Carey v. Westinghouse Elec. Corp.,
375 U.S. 261 (1964) ........................................... 11
[Page iv]
iv
In re Chevron Corp.,
633 F.3d 153 (3d Cir. 2011) ......................... 13, 17
El Paso Corp. v. La Comision Ejecutiva
Hidroelectrica Del Rio Lempa,
341 F. App’x 31 (5th Cir. 2009).................... 17, 18
Epic Sys. Corp. v. Lewis,
138 S. Ct. 1612 (2018) ....................................... 31
Euromepa, S.A. v. R. Esmerian, Inc.,
51 F.3d 1095 (2d Cir. 1995) .............................. 26
Goodyear Atomic Corp. v. Miller,
486 U.S. 174 (1988) ........................................... 30
Harrison v. PPG Indus., Inc.,
446 U.S. 578 (1980) ........................................... 16
Hughes Aircraft Co. v. Jacobson,
525 U.S. 432 (1999) ........................................... 22
Intel Corp. v. Advanced Micro Devices,
Inc.,
542 U.S. 241 (2004) ..................................... passim
[Page v]
v
Morissette v. United States,
342 U.S. 246 (1952) ........................................... 11
National Broad. Co. v. Bear Stearns &
Co.,
165 F.3d 184 (2d Cir. 1999) ......................... 12, 13
National Lab. Rels. Bd. v. Radio &
Television Broad. Eng’rs Union,
364 U.S. 573 (1961)................................. 11, 15, 29
Scherk v. Alberto-Culver Co.,
417 U.S. 506 (1974)....................................... 12, 16
Servotronics, Inc. v. Boeing Co.,
954 F.3d 209 (4th Cir. 2020).................... 25, 29, 30
Servotronics, Inc. v. Rolls-Royce PLC,
975 F.3d 689 (7th Cir. 2020)............................ 20
Stokeling v. United States,
139 S. Ct. 544 (2019) ......................................... 15
United States v. Detroit Med. Ctr.,
833 F.3d 671 (6th Cir. 2016)............................ 11
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vi
Zuber v. Allen,
396 U.S. 168 (1969) ........................................... 16
Statutes
22 U.S.C. §§ 270–270g............................................ 15
28 U.S.C. § 1033 ..................................................... 31
28 U.S.C. § 1050 ..................................................... 31
28 U.S.C. § 1696 ........................................ 6, 19, 20, 21
28 U.S.C. § 1696(a)............................................ 20, 21
28 U.S.C. § 1781 ............................................ 6, 19, 20
28 U.S.C. § 1781(a)................................................. 20
28 U.S.C. § 1782 ................................................. passim
28 U.S.C. § 1782(a)............................................. passim
Other Authorities
The American Heritage Dictionary of the
English Language (1969)................................... 9
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vii
Black’s Law Dictionary (11th ed. 2019)............... 11
Hans Smit, International Litigation
Under the United States Code, 65
Colum. L. Rev. 1015, 1021, 1026
n.71, 1027 n.73 (1965)................................. 23, 24
ICC, Leading Dispute Resolution
Worldwide,
https://100.iccwbo.org/theme/leading-
dispute-resolution-worldwide (last
visited Feb. 26, 2022) ................................. 14, 15
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viii
S. Rep. No. 88-1580 (1964) .................................... 31
Sup. Ct. R. 37.6........................................................ 1
Webster’s Third New International
Dictionary (1961)............................................... 9
Webster’s Third New International
Dictionary (1966)............................................. 10
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INTEREST OF AMICI CURIAE1
These consolidated cases present important but unsettled issues of federal law affecting international arbitration: whether the phrase “foreign or interna-tional tribunal” in 28 U.S.C. § 1782(a) encompasses (i) international arbitration tribunals constituted pursu-ant to private contractual agreements and (ii) inves-tor-State arbitration tribunals constituted pursuant to international treaties. Amici consider that Section 1782 is properly available in respect of both kinds of international arbitration tribunal. Scholars and prac-titioners of international arbitration, amici have an interest in ensuring that U.S. courts correctly and uni-formly interpret Section 1782 in this context.
Amicus George A. Bermann is the Jean Monnet Professor of European Union Law, Walter Gellhorn Professor of Law, and Director of the Center for Inter-national Commercial and Investment Arbitration at Columbia Law School. He is an affiliated faculty mem-ber of both the MIDS Masters Program in Interna-tional Dispute Settlement in Geneva and the Interna-tional Dispute Resolution LLM Program at the School of Law of Sciences Po in Paris, as well as the Chief Reporter of the American Law Institute’s Restatement of the U.S. Law of International Commercial and In-vestor-State Arbitration (Am. Law. Inst., Proposed Fi-nal Draft 2019), a project that began in 2007 and was completed in 2019. He chairs the Global Advisory
1 All parties consent to the filing of this brief. Pursuant to Rule 37.6, counsel for amici authored this brief. No counsel for a party in this case authored this brief in whole or in part. No one other than amici or their counsel contributed monetarily to the preparation and submission of this brief. ↩
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Board of the New York International Arbitration Cen-ter, is co-editor-in-chief of the American Review of In-ternational Arbitration, and a founding member of the International Chamber of Commerce (“ICC”) Interna-tional Court of Arbitration’s Governing Body.
Amicus Robert H. Smit is an independent arbitra-tor in international commercial and investment arbi-trations and an Adjunct Professor of Law at Columbia Law School. He previously co-chaired the Interna-tional Arbitration and Dispute Resolution Practice at Simpson Thacher & Bartlett LLP. Mr. Smit is Co-Ed-itor-in-Chief of the American Review of International Arbitration, a member of the ICC Commission on Ar-bitration, and adviser to the American Law Institute’s Restatement of the U.S. Law of International Commer-cial and Investor-State Arbitration. He is a former member of the ICC International Court of Arbitration, Chair of the New York City Bar Association’s Interna-tional Commercial Disputes Committee, and Chair of the International Institute for Conflict Prevention & Resolution Arbitration Committee, and Vice-Chair of the International Bar Association’s International Ar-bitration and ADR Committee.
Amicus D. Brian King is an independent arbitra-tor. With nearly 30 years of experience in the field, he serves as presiding, party-nominated, sole, or emer-gency arbitrator in commercial and investor-State dis-putes. Until December 2018, Mr. King was a senior partner in the international arbitration group at Freshfields Bruckhaus Deringer in New York. Mr. King has acted in more than 100 cases, including two of the largest investment arbitrations to date. Since 2013, he has taught investment arbitration law as an Adjunct Professor at the New York University School
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of Law, where he is also a Distinguished Practitioner-in-Residence. Mr. King is also an arbitrator member of chambers at 3 Verulam Buildings.
Amicus Ruth Teitelbaum practices in the field of international law and international dispute resolu-tion. She is a fellow of the Chartered Institute of Ar-bitrators, a Deputy General Editor of Arbitration In-ternational and serves on the Executive Committee of the Institute for Transnational Arbitration. Ms. Teitelbaum served as Co-Chair of the District of Co-lumbia Bar International Law Section Steering Com-mittee (2005-2006). She was an assistant counsel at ICSID (1999-2001), and an Associate Legal Officer at the International Court of Justice (2006-2008). Her academic work on international law and arbitration has been cited by ICSID tribunals and the Supreme Court of Colombia.
Amicus Lucas Bento is the author of The Globali-zation of Discovery: The Law and Practice under 28 U.S.C. § 1782 (Kluwer, 2019). He is Of Counsel at Quinn Emanuel Urquhart & Sullivan LLP where he heads the firm’s Section 1782 Practice. Mr. Bento is a Fellow of the Chartered Institute of Arbitrators and President of the Brazilian American Lawyers Associ-ation. He is also a Solicitor Advocate with rights of au-dience in England & Wales. Mr. Bento has taught courses on international arbitration at New York Uni-versity and INSPER in São Paulo, Brazil.
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SUMMARY OF ARGUMENT
Section 1782 permits, but does not require, U.S. federal district courts to order discovery “for use in a proceeding in a foreign or international tribunal.” 28 U.S.C. § 1782(a). The district courts in the consoli-dated cases below respectively ruled that an interna-tional arbitration tribunal constituted pursuant to a private contractual agreement to arbitrate and under the terms of a bilateral investment treaty, each quali-fied as “a foreign or international tribunal” for pur-poses of Section 1782. The Sixth and Second Circuits affirmed those results and they should be affirmed by the Court here as well.2 The Sixth Circuit below cor-rectly interpreted Section 1782’s statutory language and relied on its earlier decision in Abdul Latif Jameel Transportation Co. v. FedEx Corp. (In re Application to Obtain Discovery for Use in Foreign Proceedings), 939 F.3d 710 (6th Cir. 2019). That said, while the Sec-ond Circuit correctly affirmed the district court’s au-thorization of Section 1782 discovery in support of a treaty-based investor-state arbitration, it did so on the basis of a distinction between international commer-cial arbitration and treaty-based investor-state arbi-tration. See Pet. App. at 12a-22a and 52a-53a, Alix Partners, No. 21-518. That distinction, as amici fur-ther explain below, is unjustified. Section 1782 is properly interpreted to permit, but not require, dis-trict courts to authorize discovery in support of inter-national arbitrations founded on contractual agree-ments and treaties alike.
2 Amici take no position on the merits of the disputes underly-ing either arbitration or on the district courts’ exercise of their discretion under Section 1782. ↩
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I. The plain meaning of Section 1782 compels the conclusion that the statute applies to proceedings be-fore international arbitral tribunals.
In amending Section 1782 in 1964, Congress de-liberately used a term—“foreign or international tri-bunal”—of great generality. The term “foreign” signi-fied a location outside the United States. The term “in-ternational” denoted a situation involving multiple nations or nationalities. And “tribunal” meant a court or other body authorized to resolve disputes authori-tatively by adjudicatory means. An international ar-bitral tribunal fully satisfies all the required elements of a “foreign or international tribunal” within the meaning of Section 1782. Congress drew no distinc-tions among, and created no carve-outs from, foreign or international tribunals. That international arbitral tribunals are included in that category was, and is, unambiguous.
It is telling that Congress did not limit assistance under Section 1782 to “foreign or international courts” or “foreign or international judicial bodies,” as it eas-ily could have. “Tribunal” is indisputably the term used to identify the bodies that conduct international arbitral proceedings. Indeed, when the term “foreign or international tribunal” is mentioned, international arbitration tribunals come immediately to mind. Thus, both before and after 1964, this Court has re-peatedly used the term “tribunal” to identify such bod-ies. In keeping with accepted canons of statutory con-struction, a statute is to be interpreted in accordance with its plain meaning. Inquiry into the meaning of Section 1782 should stop there. Bostock v. Clayton Cty., Ga., 140 S. Ct. 1731, 1738 (2020).
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Despite Section 1782’s plain meaning, some courts have grafted onto the provision a requirement that the “foreign or international tribunal” be state-sponsored. On that basis they have drawn a sharp dis-tinction for Section 1782 purposes between two sets of international arbitral tribunals: those adjudicating treaty-based investment disputes between a private party and a State, on the one hand, and those adjudi-cating contract-based and contract-related disputes, on the other. Those courts have made recourse to Sec-tion 1782 available in connection with proceedings be-fore the former, but not before the latter.
Neither the text nor the history of Section 1782 supports this distinction. The text shows that Con-gress chose the capacious term “tribunal,” which un-ambiguously encompasses adjudicatory bodies. The history shows that Congress removed a previous stat-utory requirement that a tribunal be established by a government when it amended Section 1782 in 1964. Nor have those courts that distinguish between inter-national commercial arbitral tribunals and interna-tional investor-State tribunals advanced any princi-pled policy justification for doing so.
Congress’s use of the phrase “foreign or interna-tional tribunal” in other parts of Title 28 does not sup-port a reading of Section 1782 that excludes interna-tional commercial arbitral tribunals. To the contrary, 28 U.S.C. §§ 1696 and 1781, both of which also use the phrase “foreign or international tribunal,” are equally applicable to international commercial arbitral tribu-nals. They provide no reason to doubt the plain mean-ing of the words that Congress chose to use.
The question whether Section 1782 applies to in-ternational commercial arbitral tribunals was the
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subject of extended discussion and deliberation during the drafting of the Restatement of the U.S. Law of In-ternational Commercial and Investor-State Arbitra-tion (Am. Law. Inst., Proposed Final Draft 2019) (“Re-statement”). As approved in 2019, the Restatement takes the position that Section 1782 unqualifiedly ap-plies to international arbitral tribunals, commercial and investor-State alike.
II. In Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), this Court’s only decision on Sec-tion 1782’s scope, the Court stated that the term “for-eign or international tribunal” was to be interpreted broadly. Under Intel, a Section 1782 request may be granted even if (i) no adjudication is yet requested and the proceeding is at a purely investigatory stage, so long as the proceeding may culminate in an adjudica-tion; (ii) the applicant is not a party to the foreign or international proceeding; and (iii) the documents sought to be discovered under Section 1782 would not be discoverable either in that proceeding or in an anal-ogous U.S. proceeding. To be sure, Intel involved a pro-ceeding before a governmental body, the Commission of the European Union. But Intel nowhere suggested that Section 1782 applies only to proceedings pending before governmental bodies.
Instead, the overriding theme that emerges from Intel is that Section 1782’s applicability is subject to no per se conditions or restrictions. Categorically ex-cluding commercial arbitral tribunals from Section 1782’s scope would thus both contravene the plain meaning of the text and deviate from Intel’s basic teaching.
III. There is no reason to suppose that abiding by Section 1782’s clear statutory language will produce
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the results feared by those who oppose applying Sec-tion 1782 to international commercial arbitration. In Intel, this Court emphasized that a decision on a Sec-tion 1782 request is discretionary. Not only does a fed-eral court have discretion to grant or deny a Section 1782 application as it considers best, but even in granting such a request, it has ample latitude to nar-row, limit, or condition discovery. Accordingly, appro-priate safeguards are already present.
A common objection to making Section 1782 avail-able to parties in international arbitration is an al-leged risk of interfering with arbitral tribunals’ proce-dural prerogatives, while injecting the cost, delay, and formalism that arbitration is meant to avert. Yet the Court in Intel considered and addressed that general-ized risk. The Intel Court counseled lower courts to en-sure that the assistance they offer not unduly burden the targets of Section 1782 discovery and instructed them, in assessing Section 1782 requests, to take into account the foreign or international tribunal’s recep-tivity to the requested discovery. Those instructions apply to Section 1782 requests in aid of international arbitrations. And while this Court’s further guidance on how lower courts should apply the Intel discretion-ary factors may be desirable, the Court can provide it without rewriting Section 1782’s statutory language.
IV. Finally, contrary to the concerns of several lower courts, there is no conflict between Section 1782 and Section 7 of the Federal Arbitration Act (“FAA”), 9 U.S.C. § 7. Section 7 addresses the authority of a dis-trict court to assist arbitral proceedings seated within that district in the gathering of evidence. Section 1782, by contrast, applies to foreign or international proceedings.
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ARGUMENT
I. By its plain meaning, Section 1782 applies to international arbitral tribunals.
Section 1782 applies to documents or testimony to be used in “a proceeding in a foreign or international tribunal.” 28 U.S.C. § 1782(a). Congress did not define “foreign or international tribunal,” but the phrase’s plain meaning—both when Congress used it in the statute in 1964 and today—includes privately consti-tuted arbitral tribunals. That “ordinary public mean-ing” is decisive. Bostock v. Clayton Cty., Ga., 140 S. Ct. 1731, 1738 (2020).
A. In 1964, an international arbitral tribu-nal was a “foreign or international tribu-nal.”
In 1964, the term “foreign or international tribu-nal” had a perfectly ordinary meaning that can be es-tablished from contemporaneous dictionaries.
“Foreign” meant “[s]ituated outside a place or country.” Application to Obtain Discovery, 939 F.3d at 719 n.4 (citing Webster’s Third New International Dic-tionary (1961)). “International” meant “[e]xisting be-tween or among nations or their citizens.” Id. (citing Webster’s Third); see also id. (observing that “interna-tional” can also mean “[o]f, relating to, or involving two or more nations or nationalities” (citing The Amer-ican Heritage Dictionary of the English Language
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(1969))). As amended in 1964, Section 1782 encom-passed proceedings taking place abroad and involving countries or parties of different nationalities.3 Id.
At that time, the meaning of “tribunal” was simi-larly broad. According to contemporaneous dictionar-ies, “tribunal” meant “a court or forum of justice: a per-son or body of persons having authority to hear and decide disputes so as to bind the disputants.” Id. at 720 (citing Webster’s New International Dictionary of the English Language (2d ed. 1950)); see also id. (ob-serving that the 1966 edition of Webster’s Third New International Dictionary contained the same defini-tion of “tribunal”). International arbitral tribunals un-questionably constituted “forum[s] of justice” for the resolution of disputes and issued rulings binding on the parties.
This conclusion is reinforced by this Court’s con-temporaneous usage. In 1956, the Court explained that “[t]he nature of the tribunal”—whether it be “a court of law” or “an arbitration panel”—“may make a radical difference in” a given case’s “ultimate result.” Bernhardt v. Polygraphic Co. of Am., 350 U.S. 198, 203 (1956). Four years later, the Court observed that commercial disputes may be resolved either in court or in “the more informal arbitration tribunal[s].” United Steelworkers of Am. v. Warrior & Gulf Nav.
3 As noted in Intel, the 1964 amendments to Section 1782 “de-leted the words ‘in any judicial proceeding pending in any court in a foreign country’ and replaced them with the phrase ‘in a pro-ceeding in a foreign or international tribunal’” such that “the word ‘tribunal’ [would] ensure that ‘assistance is not confined to proceedings before conventional courts,’ but extends also to ‘ad-ministrative and quasi-judicial proceedings.’” 542 U.S. at 248–49 (emphasis omitted). ↩
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Co., 363 U.S. 574, 578 (1960). The following year, the Court used the terms “union tribunals,” “employer tri-bunals,” and “joint tribunals” when describing bodies established “to arbitrate disputes.” National Lab. Rels. Bd. v. Radio & Television Broad. Eng’rs Union, 364 U.S. 573, 580 (1961). And in 1964, the same year that Congress added the term “tribunal” to Section 1782, the Court decided that, in submitting a labor dispute to private arbitration rather than the Na-tional Labor Relations Board, the union was “re-sort[ing] to a tribunal other than the Board.” Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 272 (1964) (emphasis added).
These sources show that, by 1964, the use of “tri-bunal” to refer to an arbitral panel was part of the common vernacular. Because Congress offered no “contrary direction” suggesting that it wished to de-part from that common usage, it “presumably” meant to “adopt[] the cluster of ideas that were attached to” the term. Morissette v. United States, 342 U.S. 246, 263 (1952); see United States v. Detroit Med. Ctr., 833 F.3d 671, 674 (6th Cir. 2016) (“In the absence of any statutory definition to the contrary, courts assume that Congress adopts the customary meaning of the terms it uses.”).
B. Today, an international arbitral tribunal is a “foreign or international tribunal.”
Today, “tribunal” has the same plain meaning that it had in 1964. A leading legal dictionary tells us that a “tribunal” is quite simply a “court of justice or other adjudicatory body.” Black’s Law Dictionary (11th ed. 2019). Arbitral tribunals are “other adjudi-catory bod[ies].” Id.; see also id. (noting in the defini-tion of “arbitrator” that “[p]arties usu[ally] agree to
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have their dispute resolved by either a sole arbitrator or three arbitrators (referred to as an arbitral panel in domestic arbitration or an arbitral tribunal in inter-national arbitration)”).
This Court too has remained consistent in its use of the term “tribunal.” In Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., the Court explained that enforcing “the parties’ [arbitration] agreement” showed “respect for the capacities of foreign and trans-national tribunals”—like the Tokyo-seated commer-cial arbitral tribunal to which the parties had submit-ted their dispute. 473 U.S. 614, 629 (1985); see also id. at 627, 629–631, 634, 636–637, 638 (repeatedly using “tribunal” to refer to international commercial arbi-tral panels). And, in Scherk v. Alberto-Culver Co., the Court stated that, by agreeing to submit their dispute to International Chamber of Commerce arbitration, the parties had “agree[d] to arbitrate before a speci-fied tribunal.” 417 U.S. 506, 519 (1974).
C. The distinction that some courts have drawn between international commer-cial arbitral tribunals and international investment arbitral tribunals is flawed.
Several lower courts have held that Congress in-tended Section 1782 to apply only to “[S]tate-spon-sored” international investment arbitral tribunals, but not to “private” international commercial arbitral tribunals. See, e.g., National Broad. Co. v. Bear Stearns & Co., 165 F.3d 184, 188–90 (2d Cir. 1999). Thus, while the question of Section 1782’s availability in aid of international commercial arbitration has di-vided the federal courts, there is a consensus, correct so far as it goes, that Section 1782 discovery is availa-
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ble in aid of proceedings before treaty-based interna-tional investment arbitration tribunals. See Restate-ment, § 3.5 Reporter’s Note b; see also, e.g., In re Chev-ron Corp., 633 F.3d 153, 161 (3d Cir. 2011) (arbitral tribunal constituted under a bilateral investment treaty is “unquestionably” a “foreign or international tribunal” under Section 1782).
There is no basis, however, for distinguishing be-tween international investment and commercial arbi-tration in this context. Section 1782 discovery should be available in aid of both.
1. Cases drawing this distinction typically rely on two aspects of Section 1782’s legislative history: first, that Congress did not specifically mention interna-tional commercial arbitration when debating the 1964 amendments, e.g., National Broad., 165 F.3d at 189, and second, that one of Section 1782’s predecessor statutes provided for discovery assistance only to tri-bunals “established pursuant to an agreement be-tween the United States and any foreign government or governments,” id. at 192. Neither rationale with-stands scrutiny.
First, there is no evidence that Congress specifi-cally contemplated arbitration under bilateral invest-ment treaties when it amended Section 1782 in 1964. At that time, treaty-based investor-State arbitration, largely a product of the 1980s and 1990s, barely ex-isted. The United States did not sign its first bilateral investment treaty until 1982. See Panama-U.S. Bilat-eral Investment Treaty, Oct. 27, 1982, S. Treaty Doc. No. 99-14. Since then, the treaty governing most in-ternational investment arbitrations involving the United States has been the North American Free Trade Agreement (“NAFTA”), Can.-Mex.-U.S., Dec.
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17, 1992, 32 I.L.M. 289, which did not take effect until 1994.4
Nor, in this context, should the Court attach par-ticular significance to the United States’ signing, in 1965, of the Convention on the Settlement of Invest-ment Disputes Between States and Nationals of Other States (the “ICSID Convention”), Mar. 18, 1965, 17 U.S.T. 1270, 575 U.N.T.S. 159. While the ICSID Con-vention created a framework for international invest-ment arbitration, it established no investment rights or obligations.
In fact, in 1964 international commercial arbitra-tion was much more established than international in-vestment arbitration. It was over forty years earlier, in 1920, that New York passed its Arbitration Law to respond to “the demands of international commerce” and “establish[] legal machinery for protecting, safe-guarding and supervising commercial arbitration.” Julius H. Cohen, The Law of Commercial Arbitration and the New York Statute, 31 Yale L.J. 147, 148, 150 (1921). Two years later, in 1922, the International Chamber of Commerce (“ICC”) published the first ver-sion of its Rules of Arbitration, which were designed for, and are still widely used in, international commer-cial arbitration.5 That was followed the next year by the establishment of the ICC’s International Court of
4 See United Nations Conference on Trade and Dev., Invest-ment Dispute Settlement Navigator, https://investmentpol-icy.unctad.org/investment-dispute-settlement (last visited Feb. 26, 2022) (listing twenty investor-State arbitrations brought against the United States, eighteen under NAFTA). ↩
5 See ICC, Leading Dispute Resolution Worldwide, https://100.iccwbo.org/theme/leading-dispute-resolution-world-wide (last visited Feb. 26, 2022). ↩
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Arbitration with the goal of “making arbitration the preferred method of commercial dispute resolution.”6 The London Court of International Arbitration (“LCIA”)—another international arbitration institu-tion—is even older, established in 1892 to facilitate the arbitration of, among others, “trans-national com-mercial disputes.”7 The arbitration workload of the ICC Court and the LCIA consists overwhelmingly of international commercial cases.
These facts refute the theory that Congress had international investor-State tribunals—but not inter-national commercial tribunals—in mind when enact-ing Section 1782.
Second, and no less significant, one of Section 1782’s predecessor statutes, 22 U.S.C. §§ 270–270g, specifically applied only to tribunals established by the United States and foreign governments—a limita-tion Congress specifically removed when it amended Section 1782 in 1964. See Pub. L. No. 88-619, §§ 3, 9(a), 78 Stat. 995, 995, 997 (1964); 22 U.S.C. §§ 270–270g (1958); see also In re Application to Obtain Dis-covery for Use in Foreign Proceedings, 939 F.3d 710 at 727-28 (6th Cir. 2019); National Broad., 165 F.3d at 189–90. To read a “State-sponsored” tribunal require-ment into Section 1782, after Congress excised it from the statute in 1964, undermines Congress’s purpose in deleting that requirement. See Stokeling v. United States, 139 S. Ct. 544, 561 (2019) (“When Congress
7 LCIA, History, https://www.lcia.org/LCIA/history.aspx (last visited Feb. 26, 2022). ↩
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keeps one piece of statutory text while deleting an-other, we generally have no trouble concluding that it does so with purpose.” (quotation marks omitted)).
In sum, to distinguish between international com-mercial arbitral tribunals and investment arbitral tri-bunals would fall afoul of the maxim that “[l]egislative silence is a poor beacon to follow in discerning the proper statutory route.” Zuber v. Allen, 396 U.S. 168, 185 (1969); see also Harrison v. PPG Indus., Inc., 446 U.S. 578, 592 (1980) (when evaluating a statute’s leg-islative history, “a court cannot, in the manner of Sherlock Holmes, pursue the theory of the dog that did not bark”). The fact remains that neither the text nor the legislative history of Section 1782, as amended in 1964, supports the notion that Congress intended to cover investment arbitral tribunals without covering commercial arbitral tribunals.
2. The distinction is also inconsistent with the re-alities of international arbitration. Investment and commercial arbitral tribunals are indistinguishable in all their essential functions.
First, both types of tribunals derive their jurisdic-tion from the consent of the parties. In commercial ar-bitration, that consent is typically expressed in a con-tractual clause. See Scherk, 417 U.S. at 508. In invest-ment arbitration, that consent is typically formed when an investor accepts a State’s standing offer to arbitrate. See BG Grp., PLC v. Republic of Argentina, 572 U.S. 25, 42 (2014). Thus, an agreement between an investor and a State to arbitrate a dispute does not arise solely from entry by the two States into an in-vestment treaty, but from specific action taken by an investor with respect to the host State.
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Second, in both international commercial arbitra-tion and investment arbitration, the tribunals typi-cally consist of one or three private individuals (one designated by each party and the chair named either by those party-named arbitrators, by the parties themselves, or by an arbitral institution, such as the ICC or LCIA). Neither an investment nor a commer-cial arbitral tribunal is in itself a governmental body.
Third, a foreign State can as easily find itself a party to a commercial as to an investor-State arbitra-tion. States and their instrumentalities regularly en-gage in commercial transactions, including with for-eign investors, that are subject to arbitration. The re-sulting disputes unquestionably fall within the juris-diction of international commercial arbitral tribunals. Under the distinction that some courts have drawn, parties to such proceedings could not seek assistance under Section 1782. Yet if the investor were to bring an analogous claim against under an investment treaty, Section 1782 discovery would be available.
Fourth, international commercial and investment arbitral tribunals apply identical procedural rules in conducting their proceedings. The United Nations Commission on International Trade Law (“UNCITRAL”) Rules, for instance, are used in both investor-State and commercial arbitration. See Chev-ron, 633 F.3d at 158 (UNCITRAL Rules applied to an investor-State arbitration between Chevron and Ec-uador); El Paso Corp. v. La Comision Ejecutiva Hidro-electrica Del Rio Lempa, 341 F. App’x 31, 32 (5th Cir. 2009) (UNCITRAL Rules applied to an international arbitration between two private parties). A significant percentage of arbitrations even under the ICSID Ar-bitration Rules are contract disputes that the parties
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chose to resolve under ICSID Arbitration Rules.8 The rules of other international arbitral institutions like-wise apply equally to both species of arbitrations. See, e.g., Novenergia II – Energy & Environ. (SCA) v. King-dom of Spain, Civil Action No. 18-cv-01148 (TSC), 2020 WL 417794, at *1 (D.D.C. Jan. 27, 2020) (Stock-holm Chamber of Commerce (“SCC”) Rules applied to an investor-State arbitration under the Energy Char-ter Treaty); AO Techsnabexport v. Globe Nuclear Servs. & Supply, Ltd., 656 F. Supp. 2d 550, 551–52 (D. Md. 2009) (SCC Rules applied to an arbitration under a contract for sale of uranium).
Fifth, both types of tribunals interpret and apply rules of law to the facts of a dispute. See BG, 572 U.S. at 31 (investor-State arbitral tribunal applied bilat-eral investment treaty between the United Kingdom and Argentina); El Paso, 341 F. App’x at 32 (interna-tional commercial arbitral tribunal applied El Salva-doran substantive law and Swiss procedural law).
Sixth, though not governmental bodies in them-selves, both commercial and investment arbitral tri-bunals render final and binding decisions that courts will enforce. Under the United Nations Convention on the Recognition and Enforcement of Arbitral Awards, June 10, 1958, 21 U.S.T. 217 (the “New York Conven-tion”), the key international instrument in interna-tional arbitration, courts of all contracting States must, absent a Convention defense, enforce an award to which the Convention applies, whether rendered by an investment or a commercial arbitral tribunal. So
8 See ICSID, Spotlight on Contract-based Disputes at ICSID, https://icsid.worldbank.org/node/20966 (last visited Feb. 26, 2022). ↩
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too with the Inter-American Convention on Interna-tional Commercial Arbitration, Jan. 30, 1975, O.A.S.T.S. No. 42, 1438 U.N.T.S. 245 (the “Panama Convention”); see also Restatement, § 3.5 Reporter’s Note b. This further undermines the “State-spon-sored” versus “private” dichotomy that has found fa-vor with some courts.
****
International commercial arbitral tribunals and international investment arbitral tribunals are mate-rially indistinguishable in form and function. Neither Section 1782’s text and legislative history, nor the re-alities of international arbitration, support distin-guishing between them for purposes of Section 1782. There is no basis to conclude that Section 1782’s ref-erence to “foreign or international tribunal” captures one type of arbitral tribunal but not the other.
D. The use of the phrase “foreign or inter-national tribunal” elsewhere in Title 28 does not support a narrow interpreta-tion of Section 1782.
Despite the absence of any textual limitation on the phrase “foreign or international tribunal” in Sec-tion 1782, Petitioners argue that the use of the same phrase in 28 U.S.C. §§ 1696 and 1781 supports a nar-row interpretation of the phrase. See Pet. Br. 28–31, ZF Automotive, No. 21-401. Section 1696 permits a district court to order service of “any document issued in connection with a proceeding in a foreign or inter-national tribunal” when presented with “a letter rog-atory issued, or request made, by a foreign or interna-tional tribunal or upon application of any interested person.” 28 U.S.C. § 1696(a). Section 1781 grants the
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U.S. Department of State the power “to receive a letter rogatory issued, or request made, by a foreign or in-ternational tribunal” and to transmit “a letter roga-tory issued, or request made,” by a U.S. tribunal to a “foreign or international tribunal, officer, or agency to whom it is addressed.” 28 U.S.C. § 1781(a). Some courts, such as the Seventh Circuit, have held that be-cause the subjects of Sections 1696 and 1781— “[s]ervice-of-process assistance and letters roga-tory”—are “matters of comity between governments,” the use of the same phrase in the three provisions sug-gests that Congress meant to refer to “state-sponsored tribunals” rather than international commercial arbi-tral tribunals in Section 1782. See Servotronics, Inc. v. Rolls-Royce PLC, 975 F.3d 689, 694–95 (7th Cir. 2020).
This is incorrect. Although “identical words used in different parts of the same statute” will be “pre-sumed to have the same meaning,” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit, 547 U.S. 71, 86 (2006), there is no reason why Sections 1696 and 1781 cannot apply to international arbitral tribunals. Sec-tions 1696 and 1781 refer to “request[s] made” by a foreign or international tribunal. See 28 U.S.C. §§ 1696(a), 1781(a). This is not limited to foreign courts or State-sponsored tribunals; international ar-bitral tribunals can also make a “request” for U.S. fed-eral court assistance with service of a document or to obtain evidence. See Application to Obtain Discovery, 939 F.3d at 723; Intel, 542 U.S. at 257 n.10 (“Section 1696(a) . . . is not limited to service of process; it allows service of ‘any document’ issued in connection with a foreign proceeding.” (emphasis omitted)).
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Nor was Congress solely concerned with interna-tional comity when passing these provisions. Section 1696 applies not only to a “request” from a “foreign or international tribunal” but also to an “application of any interested person.” 28 U.S.C. § 1696(a). As this Court has held, an “interested person” is anyone who “possess[es] a reasonable interest in obtaining [judi-cial] assistance.” Intel, 542 U.S. at 256 (alterations in original) (quotation marks omitted). That extends be-yond foreign courts or other State-sponsored tribu-nals, reaching parties to which comity considerations would not apply. There is therefore “no reason to doubt” the conclusion that the plain meaning of the text of Section 1782 compels, namely that “foreign or international tribunal” includes arbitral tribunals re-solving international commercial disputes. Applica-tion to Obtain Discovery, 939 F.3d at 723.
E. The Restatement concludes that interna-tional arbitral tribunals are “foreign or international tribunals” under Section 1782.
The Restatement’s drafters carefully considered how Section 1782 applies to international arbitrations and concluded that international commercial and in-vestment arbitral tribunals stand on the same footing and may both receive assistance under Section 1782. Restatement, § 3.5 Reporter’s Note b. The American Law Institute (“ALI”) unanimously adopted that posi-tion when it approved the Restatement in May 2019.
The Restatement did not reach that conclusion lightly. As with all ALI Restatements, the Restate-ment underwent a rigorous deliberative and drafting process, in this case lasting twelve years. After closely analyzing the issue, the Restatement’s drafters agreed
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that Section 1782’s plain language compels the con-clusion that international commercial arbitral tribu-nals are “tribunals” under Section 1782 and that there is no principled basis outside the statutory text for holding otherwise. Restatement, § 3.5 cmt. b. That con-clusion follows from the bedrock principle that this Court’s statutory interpretation “begins with the lan-guage of the statute” and “ends there as well” when “the statutory language provides a clear answer.” Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999) (quotation marks omitted).
II. This Court’s Intel decision confirms that Section 1782 should be interpreted to apply to international arbitral tribunals.
Intel—this Court’s only decision interpreting Sec-tion 1782—confirms the outcome urged by amici. In Intel, the Court considered whether the European Commission’s Directorate-General for Competition (“DG-Competition”) was a “tribunal” under Section 1782. 542 U.S. at 246. Throughout Intel, the Court confirmed that the phrase “foreign or international tribunal” should be interpreted broadly. See, e.g., id. at 258 (emphasizing that “foreign or international tri-bunal” has a broader scope than language used in Sec-tion 1782’s predecessor statutes and holding that there is “no warrant to exclude” a body that “acts as a first-instance decisionmaker”). The Court ultimately concluded that DG-Competition, which is not a court and was not at the time of the Section 1782 request acting in an adjudicatory capacity, was still a “tribu-nal” within the scope of Section 1782. Id.
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In reaching that conclusion, the Court gave no particular weight to the fact that the European Com-mission is a governmental entity. To the contrary, that feature of the Commission received no attention.
Instead, the Intel Court articulated its opposition to subjecting the availability of Section 1782 to hard-and-fast rules. Id. at 255. As noted, a foreign or inter-national body need not be a court and need not be en-gaging in adjudicatory activity at the time of the dis-covery request in order to qualify as a tribunal under Section 1782. But Intel went further. It announced that Section 1782 discovery is not subject to categori-cal exclusions or limitations, such as a requirement that the material sought to be discovered under Sec-tion 1782 be discoverable either in the foreign or in-ternational forum or in an analogous domestic pro-ceeding. Categorically excluding international com-mercial arbitral tribunals from the scope of Section 1782 would be contrary to Intel’s core teachings.
Intel’s repeated reliance on articles by Professor Hans Smit only bolsters the conclusion that the Court viewed Section 1782 as applying to commercial arbi-trations. See id. at 248, 256–59, 261–62, 264. Profes-sor Smit was the “dominant drafter of, and commen-tator on, the 1964 revision[s]” to Section 1782. In re Letter of Request from Crown Prosecution Serv. of UK, 870 F.2d 686, 689 (D.C. Cir. 1989). One of those arti-cles, published in 1965, specifically identified “arbitral tribunals” as one type of “tribunal” within the scope of Section 1782. Hans Smit, International Litigation Un-der the United States Code, 65 Colum. L. Rev. 1015, 1021, 1026 n.71, 1027 n.73 (1965). The Court cited that portion of Professor Smit’s article deliberately
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and with approval. See Intel, 542 U.S. at 258. Alt-hough the Court omitted part of the relevant passage (“all bodies exercising adjudicatory powers”) in quot-ing Professor Smit, it maintained Professor Smit’s specific reference to arbitral tribunals as falling within Section 1782’s scope. Compare id., with Smit, 65 Colum. L. Rev. at 1026 n.71.
Amici do not argue that academic commentary on Section 1782 can itself overcome the plain text and acknowledge that the Intel’s reference to arbitral tri-bunals was dictum. That commentary is instructive here, however, because it accords with the plain meaning of “tribunal” and reflects the intention of the provision’s principal drafter.
III. Holding that “foreign or international tribu-nal” encompasses international commercial arbitral tribunals will not prove detrimental to international commercial arbitration or the principles underlying it.
The procedural autonomy and efficiency of arbi-tration are some of arbitration’s core purposes as an alternative to litigation and amici are not arguing for unfettered U.S.-style discovery in international arbi-tral proceedings. But discovery is not alien to interna-tional commercial arbitration,9 and the claim that making Section 1782 discovery available in respect of international commercial arbitration would work
9 For example, the LCIA’s 2020 Arbitration Rules provide that the arbitral tribunal has the power “to order any party to produce to the Arbitral Tribunal and to other parties documents or copies of documents in their possession, custody or power which the Ar-bitral Tribunal decides to be relevant.” LCIA, LCIA Arbitration Rules (Oct. 1, 2020), https://www.lcia.org/Dispute_Resolu-tion_Services/lcia-arbitration-rules-2020.aspx. ↩
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great mischief is fundamentally misplaced. See, e.g., Pet. Br. 49-50, ZF Automotive, No. 21-401; Servo-tronics, Inc. v. Boeing Co., 954 F.3d 209, 214 (4th Cir. 2020); Application to Obtain Discovery, 939 F.3d at 729–30.
To begin with, this Court has held that “a district court is not required to grant a § 1782(a) discovery ap-plication simply because it has the authority to do so.” Intel, 542 U.S. at 264. Moreover, arbitral tribunals can exclude documents obtained through Section 1782 and even preemptively make known to a U.S. court that they have no interest in such discovery. Inter-globe Enters. Private Ltd. v. Gangwal, No. 1:19-mc-24257 (S.D. Fla. Apr. 21, 2020), ECF No. 31-1 (tribu-nal ruling that Section 1782 discovery was neither necessary nor helpful, and directing the party seeking Section 1782 discovery to advise the U.S. court of its ruling); see also Intel, 542 U.S. at 265 (noting that the European Commission stated in amicus briefs that it did not “need or want the District Court’s assistance”).
Moreover, this Court and lower federal courts have long guided district courts in exercising their wide discretion under Section 1782. In Intel, the Court identified four factors relevant for this purpose: (i) whether the person from whom discovery is sought is a party to the foreign proceeding; (ii) the nature of the tribunal, the character of the foreign proceeding and the tribunal’s receptivity to Section 1782 discov-ery; (iii) whether the Section 1782 application con-ceals an attempt to circumvent foreign proof-gather-ing restrictions; and (iv) whether complying with the discovery requests would be unduly intrusive or bur-densome. 542 U.S. at 264–65.
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These criteria not only permit courts to deny dis-covery requests under Section 1782, even when the statutory requirements are met, but also to grant them subject to conditions and limitations. Intel made clear that courts should approach each Section 1782 application strictly on its own terms. For example, a court may require a party in whose favor discovery has been ordered under Section 1782 to make a recip-rocal exchange of information. See id. at 262 (citing Euromepa, S.A. v. R. Esmerian, Inc., 51 F.3d 1095, 1102 (2d Cir. 1995)). Courts can and do take these con-siderations into account as soundly and effectively in the international arbitration context as in any other. If the lower courts require further guidance on how to apply those considerations properly in Section 1782 proceedings, this Court can provide that guidance without artificially limiting the meaning of “foreign or international tribunal.”
While each of these factors is relevant to requests in aid of international commercial arbitrations, two have especially heightened utility in that context:
First, precisely because arbitral tribunals enjoy a high degree of procedural autonomy, it is all the more important that U.S. courts refrain from ordering dis-covery that is “unduly intrusive or burdensome.” Intel, 542 U.S. at 265; see Restatement, § 3.5 cmt. c.
Second, courts must seriously consider the “recep-tivity” of an international commercial arbitral tribu-nal to the discovery sought. Indeed, district courts rec-ognize the limitations on discovery in international commercial arbitration and have demonstrated an ability to “exercise considerable restraint, granting ac-cess to requested information only in limited circum-
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stances when the grant is consistent with the tribu-nal’s receptivity to the information.” Restatement, § 3.5 Reporter’s Note b; accord id. § 3.5 cmt. C. Real-world examples confirm this. See Order at 4, Inter-globe, No. 1:19-mc-24257 (S.D. Fla. Apr. 30, 2020), ECF No. 33 (denying Section 1782 discovery after in-ternational commercial arbitral tribunal ruled that such discovery was neither necessary nor helpful); In re Application of Chevron Corp., 762 F. Supp. 2d 242, 251 (D. Mass. 2010) (“[S]ince international arbitrators usually control the discovery process, this court be-lieves it should exercise at least some restraint before granting the instant Section 1782 application.”).
Though district courts have been ordering Section 1782 discovery in aid of international commercial ar-bitrations for years, arbitration remains the mode of choice for the resolution of international disputes.10 There is no evidence that the availability of Section 1782 has been detrimental to international arbitra-tion. To the contrary, the LCIA, for example, reported “an all-time high” number of cases in 2020—the most recent year for which figures are available—that was
10 For example, the 2021 Queen Mary International Arbitra-tion Survey found that 90% of respondents preferred arbitration (either on its own or together with other forms of alternative dis-pute resolution) for resolving cross-border disputes. White & Case LLP & Sch. of Int’l Arbitration Queen Mary Univ. of Lon-don, 2021 International Arbitration Survey: Adapting Arbitra-tion to a Changing World 2 (2021), https://arbitra-tion.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf. ↩
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“an increase of approximately 10% compared with 2019, which was then a record year.”11
Finally, if the availability of Section 1782 discov-ery in aid of proceedings before international commer-cial arbitral tribunals posed a threat to the procedural autonomy of arbitral tribunals, then so would the availability of Section 1782 discovery in aid of pro-ceedings before international investment arbitration tribunals. International investment tribunals are en-titled to no less respect for their procedural autonomy than international commercial tribunals. Yet that has not deterred courts, even while correctly treating the former as perfectly eligible under Section 1782, to treat the latter as categorically ineligible. If the avail-ability of Section 1782 discovery is—and it is—appro-priate in investor-State arbitration, then it should be equally appropriate in international commercial arbi-tration.
Congress gave district courts discretion in enact-ing Section 1782. If it finds that they fail properly to exercise that discretion, Congress can readily act. The problem, if there is any, should be addressed that way, not by rewriting Section 1782 to indulge the fiction that international commercial arbitral tribunals are not “foreign or international tribunals.” See Azar v. Al-lina Health Servs., 139 S. Ct. 1804, 1815 (2019)
11 LCIA, Record Number of LCIA Cases in 2020 (Jan. 20, 2021), https://www.lcia.org/News/record-number-of-lcia-cases-in-2020.aspx; see also Int’l Chamber of Commerce, ICC announces record 2020 caseloads in Arbitration and ADR (Jan. 12, 2021), https://iccwbo.org/media-wall/news-speeches/icc-announces-rec-ord-2020-caseloads-in-arbitration-and-adr/ (noting registration of 946 new arbitrations in 2020, the highest number since 2016). ↩
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(“[C]ourts aren’t free to rewrite clear statutes under the banner of [their] own policy concerns.”).
IV. There is no conflict between Section 1782 and the Federal Arbitration Act.
Petitioners and the decisions of some lower courts suggest that applying Section 1782 to international commercial arbitration would cause a conflict between that statute and the FAA. This is allegedly because Section 1782 authorizes broader discovery than is available under Section 7 of the FAA. See Pet. Br. 37–40, ZF Automotive, No. 21-401; Republic of Kazakh-stan v. Biedermann, Int’l, 168 F.3d 880, 882–83 (5th Cir. 1999); National Broad., 165 F.3d at 187–88. More specifically, under Section 7, the federal district court where an arbitral tribunal is seated may compel a per-son to comply with that tribunal’s order to appear be-fore it as a witness or to produce documents. 9 U.S.C. § 7. By contrast, Section 1782 allows any interested party to ask a federal district court for an order to pro-vide testimony or produce documents for use in a pro-ceeding in a foreign or international tribunal. 28 U.S.C. § 1782(a). Courts that oppose applying Section 1782 to international commercial arbitration consider it “not likely that Congress would have chosen to au-thorize . . . broader discovery in aid of foreign private arbitration than is afforded its domestic dispute-reso-lution counterpart.” Biedermann, 168 F.3d at 883. This position is wrong.
First, this Court in Intel rejected comparisons be-tween Section 1782 and analogous domestic proceed-ings, holding that Section 1782, as “a provision for as-sistance to tribunals abroad,” nowhere “direct[s] United States courts to engage in comparative analy-sis to determine whether analogous proceedings exist
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[in the United States].” 542 U.S. at 263; see Servo-tronics, 954 F.3d at 216 (rejecting comparison); Appli-cation to Obtain Discovery, 939 F.3d at 729 (same). This Court was untroubled by the possibility that a Section 1782 applicant might be entitled to broader discovery than a party to a domestic proceeding. Yet that is precisely the kind of comparison between for-eign and domestic proceedings that Petitioners make here. See Pet. Br. 38–39, ZF Automotive, No. 21-401.12
Second, there is no conflict between Section 1782 and Section 7 of the FAA. Section 7 concerns only the authority of the federal court of the district where the arbitration is seated. See Servotronics, 954 F.3d at 215. It does not address seeking evidence for use in arbitral proceedings seated outside the United States—the only scenario to which Section 1782 ap-plies. See Intel, 542 U.S. at 263. By definition, then, Section 1782 applies to proceedings to which Section 7 of the FAA does not apply. Because Congress knows of “existing law pertinent to the legislation it enacts,” Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 185
12 The English courts recently confronted an analogous situa-tion. In A and B v. C, D and E, [2020] EWCA (Civ) 409, [2020] 1 WLR 3504, the court was asked to determine whether Section 44 of the English Arbitration Act, which allows English courts to order the production of evidence in aid of arbitration, allowed a court to order a nonparty witness located in the United Kingdom to provide evidence for an arbitration seated in New York. Id. at [1]; Arbitration Act 1996, c. 23, §§ 2(3), 44. In holding that the statute authorized discovery from third parties, the court noted that courts would have more flexibility in ordering discovery in aid of a foreign arbitration than a foreign court proceeding but determined that was “not a reason for placing limitations on the statutory language which it will not bear.” A and B, [2020] EWCA (Civ) 409 at [39]. ↩
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(1988), it would have understood the reach of Section 7 when it enacted Section 1782.
This is the only interpretation that “interpret[s] Congress’s statutes as a harmonious whole,” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1619 (2018), while giving effect to the “ordinary public meaning" of the words that Congress chose to use in Section 1782. Bostock, 140 S. Ct. at 1738.
Finally, Section 1782 reflects a legislative judgment that making discovery in the United States available for use in proceedings before non-U.S. adjudicatory bodies will foster international cooperation in evidence-gathering and thereby encourage foreign countries to provide similar assistance to U.S. proceedings. See Intel, 542 U.S. at 252 (describing “twin aims" of Section 1782); S. Rep. No. 88-1580, at 3783 (1964) (desiring to “provid[e] equitable and efficacious procedures for the benefit of tribunals and litigants involved in litigation with international aspects").
Since the 1964 amendments, other countries have extended judicial assistance to arbitrations taking place outside of their borders—the exact international reciprocity that Congress was hoping to encourage in 1964. See Intel, 542 U.S. at 252. The English Arbitration Act, for example, authorizes courts to order discovery in aid of an arbitration taking place abroad, including at least one arbitration taking place in the United States. See Arbitration Act 1996, c. 23, §§ 2(3), 44; supra p. 30 n. 12. Germany also permits its courts to assist arbitrations seated abroad. See Code of Civil Procedure, Dec. 5, 2005, BGBI I at 3786, §§ 1033, 1050 (last amended Oct. 10, 2013). As this Court emphasized in Intel, the 1964 amendment to Section 1782 was part of a larger project to “investigate and study
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existing practices of judicial assistance and cooperation between the United States and foreign countries with a view to achieving improvements.” 542 U.S. at 248 (quoting Pub. L. No. 85-906, § 2, 72 Stat. 1743, 1743 (1958)). Interpreting Section 1782 to include international commercial arbitral tribunals furthers those goals. See Application to Obtain Discovery, 939 F.3d at 730.
Lower courts should exercise their discretion under Section 1782, with appropriate regard for tribunals' receptivity to the discovery sought and this Court's other guidance in Intel. But the notion that either commercial or treaty-based international arbitral tribunals lie outside the scope of Section 1782 is untenable. Had Congress intended to deny Section 1782’s assistance to the adjudicatory bodies that come most readily to mind at the mention of “foreign or international tribunal,” it would and easily could have said so. But the plain language of the statute, together with its legislative history, including commentary from its principal drafter, and this Court’s decision in Intel, all compel the opposite conclusion: both kinds of international arbitral tribunal fall unambiguously within the meaning of “foreign and international tribunal" under Section 1782.
The district courts' orders should be affirmed.
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March 2, 2022
OREN J. WARSHAVSKY
GONZALO S. ZEBALLOS
CARLOS RAMOS-
MROSOVSKY
BAKERHOSTETLER LLP
45 Rockefeller Plaza
New York, NY 10111
(212) 589-4200
Respectfully submitted,
JONATHAN B. NEW
Counsel of Record
BAKERHOSTETLER LLP
45 Rockefeller Plaza
New York, NY 10111
(212) 589-4200
[email protected]
Counsel for Amici Curiae