No. 21-518
In the
Supreme Court of the United States
ALIXPARTNERS, LLP, ET AL.,
Petitioners,
v.
THE FUND FOR PROTECTION OF INVESTOR RIGHTS
IN FOREIGN STATES,
Respondent.
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Second Circuit
MOTION FOR LEAVE TO FILE AND BRIEF OF
THE INTERNATIONAL INSTITUTE FOR
CONFLICT PREVENTION & RESOLUTION AS
AMICUS CURIAE IN SUPPORT OF
PETITIONERS
JOHN B. PINNEY
Counsel of Record
ROULA ALLOUCH
JOHN C. GREINER
GRAYDON HEAD & RITCHEY LLP
312 Walnut Street, Ste. 1800
Cincinnati, OH 45202
(513) 629-2730
[email protected]
Counsel for Amicus Curiae
November 5, 2021
Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001
[Page i]
The International Institute for Conflict Prevention
& Resolution, Inc. (“CPR”) moves for leave to file the
attached amicus curiae brief in support of the petition
for writ of certiorari filed herein by AlixPartners, LLP,
and Mr. Simon Freakley (hereinafter collectively
“AlixPartners.”).
Although petitioner’s counsel of record has
consented to this filing of this amicus brief,
respondent’s counsel has not.1 Respondent’s counsel
asserted that his client did not believe that CPR had
sufficient interest in the question of the applicability of
Section 1782 to investor-state arbitrations to warrant
submission of an amicus brief by CPR.
As stated in its proposed amicus brief, CPR is an
independent, 501(c)(3) not-for-profit organization
formed in 1977, among other things, to identify
alternatives to litigation and resolve legal conflicts
more effectively and efficiently. The mission of CPR is
to manage conflict to enable purpose. CPR does this by
1 In accordance with Rule 37(2)(a), the undersigned counsel of ↩
record for CPR notified counsel for both petitioner and respondent
of CPR’s intent to file an amicus brief in support of petitioner’s
petition for a writ of certiorari more than ten days prior to the due
date of this brief.
[Page ii]
spearheading innovation and promoting excellence in
dispute prevention and resolution through two arms:
the CPR Institute and CPR Dispute Resolution.
The CPR Institute is a think tank whose members
include arbitrators, mediators, companies, law firms,
government practitioners, and academics, and who
share best practices and develop innovative tools and
resources for dispute prevention and resolution.
CPR Dispute Resolution provides neutrals for and
administers ADR proceedings, such as arbitration,
mediation, early neutral evaluation, dispute review
boards and minitrials. CPR’s arbitrators and mediators
conduct arbitrations and mediations pursuant to the
rules, procedures and protocols generated by the CPR
Institute.
As both a global thought leader in conflict
management and as an administrator of international
arbitrations, CPR has a strong interest in ensuring the
continued use, efficiency and effectiveness of
international arbitration. Specifically, the CPR
Institute has members who engage in arbitration
throughout the world. CPR Dispute Resolution itself is
an administrator of international arbitrations, with
about one-quarter of the 600-plus members of its Panel
of Distinguished Neutrals being located outside of the
United States. Consequently, the question of whether
U.S. district courts may entertain applications for
judicial assistance in obtaining evidence for
presentation in arbitral proceedings before
international tribunals is one of great relevance to CPR
and its constituents.
[Page iii]
CPR has great concern that the current circuit split
regarding the availability of 28 U.S.C. § 1782(a) for
discovery before international arbitral tribunals
undermines CPR’s goal of fostering efficient and
effective resolution of cross-border business disputes
through international commercial arbitration. The
uncertainty whether Section 1782 discovery for use in
an international arbitration is or is not available under
United States law itself leads to extensive, time-
consuming and tremendously expensive litigation over
the threshold issue of simply whether district courts
can entertain an application to obtain evidence from a
United States party.
As shown by this case, the issue is not just limited
to private international arbitration cases (as was
Servotronics²), but also has equal importance to
international investment treaty cases. The mere
existence of the uncertainty regarding the district
court’s jurisdiction over Section 1782 applications
inevitably imposes unacceptably high costs for
resolving the dispute, frequently embroiling not only
the adversaries in the underlying arbitration but also
the third-parties from which the evidence is sought.
CPR therefore submits that it has a keen interest in
urging the Court to grant certiorari in this case to
resolve not only the applicability of Section 1782 for
investor-state arbitrations but also for all private
international arbitrations.
² Servotronics, Inc. v. Rolls-Royce, PLC, cert. granted, No. 20-794,
141 S.Ct. 1684; dismissed under Rule 42 on September 29, 2021.
[Page iv]
CPR takes no position on the merits of the question
presented by the petition of AlixPartners, LLP for a
writ of certiorari. Rather, CPR submits this amicus
brief solely to support the petitioner’s request that the
Court take up the case and grant certiorari to resolve
definitively and promptly the interpretation of the
phrase “foreign or international tribunal” in Section
1782.
As set forth in the petitioner’s Question Presented,
this Court was set to resolve that issue and the circuit
split on the interpretation of Section 1782 in
Servotronics. With consent of all parties in
Servotronics, CPR submitted its amicus brief in support
of certiorari in that case. However, because the
underlying international arbitration case for which the
discovery was sought was resolved shortly before the
scheduled October 5, 2021, argument, the Servotronics
case was dismissed and that important issue remains
and will remain unresolved unless this Court grants
certiorari in this case.
In its Petition before this Court, AlixPartners
argues that the nature of the arbitral tribunal in a
private international case between private parties is
not significantly different from the tribunal in an
investment treaty case. In both instances, the tribunal
itself – the arbitrators – are private persons with no
direct office or credential from any government.
Whether or not there is a significant distinction
between private international arbitration tribunals and
[Page v]
investment treaty arbitral tribunals, this case provides
the perfect vehicle for the Court to address the
definition of the word “tribunal” in both situations.
For the foregoing reasons, CPR respectfully moves
for leave to file its attached amicus brief in support of
petitioner’s petition for writ of certiorari in this case.
Dated: November 5, 2021
Respectfully submitted,
John B. Pinney
Counsel of Record
Roula Allouch
John C. Greiner
GRAYDON HEAD & RITCHEY LLP
312 Walnut Street, Ste. 1800
Cincinnati, OH 45202
(513) 629-2730
[email protected]
Counsel for Amicus Curiae
[Page vi]
[Page 1]
The International Institute for Conflict Prevention
& Resolution, Inc. (“CPR”) respectfully submits this
amicus curiae brief in support of the petition for writ of
certiorari filed herein by AlixPartners, LLP, and Mr.
Simon Freakley (hereinafter collectively
“AlixPartners.”).¹
CPR is an independent, 501(c)(3) not-for-profit
organization formed in 1977, among other things, to
identify alternatives to litigation and resolve legal
conflicts more effectively and efficiently. The mission of
CPR is to manage conflict to enable purpose. CPR does
this by spearheading innovation and promoting
excellence in dispute prevention and resolution through
two arms: the CPR Institute and CPR Dispute
Resolution.
¹ No counsel for any party authored this brief in whole or in part,
no party or party’s counsel has made a monetary contribution
intended to fund the preparation and submission of this brief, and
no person or entity, other than the amicus curiae or its counsel,
made a monetary contribution to the preparation or submission of
this brief. Amicus curiae notified the parties of its intention to file
this brief more than ten days before the due date. Petitioners have
given written consent to the filing of this brief. Respondent did not
give consent.
[Page 2]
The CPR Institute is a think tank whose members
include arbitrators, mediators, companies, law firms,
government practitioners, and academics, and who
share best practices and develop innovative tools and
resources for dispute prevention and resolution. Among
its efforts, CPR and its Arbitration Committee, which
comprises former judges, in-house counsel, law firm
attorneys, arbitrators, and academics, have developed
administered and non-administered arbitration rules
for both international and domestic disputes, model
clauses, best practice guides and tools focused on
ensuring the efficiency, fairness and cost-effectiveness
of arbitrations, with the objective of fostering
resolution. Among the many tools are:
CPR Dispute Resolution provides neutrals for and
administers ADR proceedings, such as arbitration,
mediation, early neutral evaluation, dispute review
boards and minitrials. CPR’s arbitrators and mediators
conduct arbitrations and mediations pursuant to the
rules, procedures and protocols generated by the CPR
Institute.
[Page 3]
A complete overview of the CPR Institute’s
initiatives and conflict resolution tools, and CPR
Dispute Resolution’s services, can be found at
www.cpradr.org.
As both a global thought leader in conflict
management and as an administrator of international
arbitrations, CPR has a strong interest in ensuring the
continued use, efficiency and effectiveness of
international arbitration.
Specifically, the CPR Institute has members who
engage in arbitration throughout the world. CPR
Dispute Resolution itself is an administrator of
international arbitrations, with about one-quarter of
the 600-plus members of its Panel of Distinguished
Neutrals being located outside of the United States.
Consequently, the question of whether U.S. district
courts may entertain applications for judicial
assistance in obtaining evidence for presentation in
arbitral proceedings before international tribunals is
one of great relevance to CPR and its constituents.
More specifically, when the district court’s jurisdiction
is unclear in the district where the party in possession
of the sought-after evidence is located, forum shopping
and extended costly litigation over that issue can
unnecessarily delay the arbitration’s merits hearing
and increase costs significantly. This disruption is
contrary to the effective and efficient resolution
arbitration is intended to provide.
CPR and its members have great concern that the
current circuit split regarding the availability of 28
U.S.C. § 1782(a) for discovery before international
arbitral tribunals undermines CPR’s goal of fostering
[Page 4]
efficient and effective resolution of cross-border
business disputes through international commercial
arbitration.
In particular, the uncertainty whether Section 1782
discovery for use in an international arbitration is or is
not available under United States law itself leads to
extensive, time-consuming and tremendously expensive
litigation over the threshold issue of simply whether
district courts can entertain an application to obtain
evidence from a United States party. As shown by this
case, the issue is not just limited to private
international arbitration cases (as was Servotronics²),
but also has equal importance to international
investment treaty cases. The mere existence of the
uncertainty regarding the district court’s jurisdiction
over Section 1782 applications inevitably imposes
unacceptably high costs for resolving the dispute,
frequently embroiling not only the adversaries in the
underlying arbitration but also the third-parties from
which the evidence is sought. All of this involves
disputes separate and apart from and collateral to the
merits of the underlying controversy that is the subject
of the arbitration upon which the Section 1782
litigation is grounded.
Although the instant case arises from an
international investment treaty arbitration, the same
statutory language in Section 1782 (“foreign or
international tribunal”) governs in both. By granting
certiorari in Servotronics, this Court concluded that the
² Servotronics, Inc. v. Rolls-Royce, PLC, cert. granted, No. 20-794,
141 S.Ct. 1684; dismissed under Rule 42 on September 29, 2021.
[Page 5]
circuit split between the Second, Fifth and Seventh
Circuits, deciding that Section 1782 does not apply, and
the Fourth and Sixth Circuits, holding that Section
1782 does apply, warranted review. By accepting this
case, which arises from an arbitration being conducted
pursuant to an investment treaty, the Court can
definitively decide the scope and extent of whether both
a private international arbitration tribunal and an
investment treaty arbitration tribunal may properly be
deemed to be a “foreign or international tribunal”
within the meaning of that phrase used in Section
1782. This petition thus provides the Court the
opportunity to complete the task it intended to
undertake in the Servotronics case.
CPR therefore urges the Court to establish clarity
on the applicability of Section 1782 to international
arbitration and further urges the Court to hear the
case this term in order to ensure the case does not
become moot.
CPR takes no position on the merits of the question
presented by the petition of AlixPartners, LLP for a
writ of certiorari. Rather, CPR submits this amicus
brief solely to support the petitioner’s request that the
Court take up the case and grant certiorari to resolve
definitively and promptly the interpretation of the
phrase “foreign or international tribunal” in Section
1782.
As set forth in the petitioner’s Question Presented,
this Court was set to resolve that issue and the circuit
[Page 6]
split on the interpretation of Section 1782 in
Servotronics, Inc. v. Rolls-Royce PLC, No. 20-794.
However, because the underlying international
arbitration case for which the discovery was sought
was resolved, the Servotronics case was dismissed
shortly before the scheduled October 5, 2021,
argument. Consequently, that important issue remains
and will remain unresolved unless this Court grants
certiorari in this case.
As recognized by the grant of certiorari in
Servotronics, the Second, Fifth and Seventh Circuits
have decided the question whether Section 1782
includes private arbitral tribunals in the negative
while the Fourth and Sixth Circuits have decided it in
the affirmative. What is especially significant about
this case is the fact that the Second Circuit in its
opinion drew a distinction between a “tribunal” in a
private international arbitration case, as presented in
Servotronics, and a “tribunal” in an investment treaty
arbitration case, as presented here.
Only a year prior to its decision in this case, the
Second Circuit in In re Guo (Guo, v. Deutsche Bank
Securities, Inc.), 965 F.3d 96 (2d Cir. 2020), reaffirmed
its longstanding opinion from National Broadcasting
Co. v. Bear Stearns & Co., 165 F.3d 184 (2d Cir. 1999),
that Section 1782 did not apply with respect to private
international commercial arbitrations. But in its
AlixPartners decision, the Second Circuit analyzed the
extent of governmental involvement in the arbitral
process and concluded that the arbitration qualified as
a “foreign or international tribunal” within the
meaning of that phrase used in Section 1782. See Fund
[Page 7]
for Protection of Investor Rights v. AlixPartners, LLP,
5 F.4th 216, 228. The primary basis for that decision
was that the proceedings before that tribunal were
convened pursuant to a bilateral investment treaty. Id.
In its Petition before this Court, AlixPartners
argues that the nature of the arbitral tribunal in an
international case between private parties is not
significantly different from the tribunal in an
investment treaty case. In both instances, the tribunal
itself – the arbitrators – are private persons with no
direct office or credential from any government. Their
charge in both cases is simply to resolve the parties’
dispute, with the only distinction being that one of the
parties in an investment case is a state or state-related
party – a fact that has nothing to do with the
composition of the tribunal itself.³
The United States submitted an amicus brief in
support of the respondents in the Servotronics case,
arguing forcefully that there is no distinction between
private international arbitral tribunal and investment
treaty arbitral tribunals. The United States’ key point
in Servotronics was that the same logic invoked in
support of the applicability of Section 1782 to private
international arbitrations would almost certainly apply
in investment arbitration cases. Consequently,
“Congress could not have envisioned the application of
Section 1782 to treaty-based investor-state arbitration
when it enacted the provision’s relevant language in
³ For example, the tribunal in the AlixPartners’ case consisted of
two arbitration lawyers and one law professor. See, Fund v.
AlixPartners LLC, 5 F.4th at 226.
[Page 8]
the 1964 Act, because that type of arbitration did not
exist in 1964.” Amicus Brief of the United States, at
15-16.
Whether or not there is a significant distinction
between private international arbitration tribunals and
investment treaty arbitral tribunals, this case provides
the perfect vehicle for the Court to address the
definition of the word “tribunal” in both situations.
The current confusion under Section 1782 creates
both the opportunity for blatant forum shopping and
the likelihood of protracted litigation on the threshold
jurisdictional question in each of the seven remaining
regional circuits that have not decided the question.⁴
⁴ There are four appeals involving Section 1782 currently pending
in the Third, Sixth, Ninth and Eleventh Circuits, two of which are
fully argued and awaiting issuance of a decision on the question
presented herein. Third Circuit: EWE Gasspeicher GmbH v.
Halliburton Co., No. 20-1830; (argued on December 9, 2020); Ninth
Circuit: In re HRC-Hainan Holding Co., LLC, No. 20-15371
(argued on September 14, 2020). Sixth Circuit: Luxshare, Ltd. v.
ZF Automotive US, Inc., No. 21-2736 (appeal filed on July 21,
2021; pet. for cert. before judgment filed on September 14, 2021,
No. 21-401); Eleventh Circuit: Rendon v. Abbott Laboratories
(Appellant’s brief due November 29, 2021). Although the EWE
Gasspeicher and HRC-Hainan Holding Co. cases could be decided
at any time, it appears highly likely that both cases are either now
moot or are likely to become moot very soon. And in the HRC-
Hainan Holding Co. case, counsel for the appellee informed the
court by letter on October 7, 2021, that that an award had
“recently been issued” on in the second (and last) arbitration with
respect to which the Section 1782 petition had been filed.
Consequently, neither is likely to remain at issue such that the
loser will bring the case before this Court. Moreover, the Rendon
case in the Eleventh Circuit appears to be many months away
[Page 9]
This is an especially compelling reason for this Court
to grant certiorari on this important question of federal
law that has significant implications both for United
States parties and for foreign parties involved in
commercial disputes with United States parties.
There is, however, another important factor
favoring the current certiorari petition. The reason why
it took more than twenty years for the question
presented here to make it to the Supreme Court is that
the delays resulting from protracted litigation over the
district court’s jurisdiction for Section 1782
applications can and often do result in the underlying
arbitral case proceeding to hearing and final award
before the Section 1782 court proceedings are complete,
frequently precluding any appeal. Obviously, once an
award in the underlying arbitral proceeding has been
issued, any unresolved Section 1782 proceeding
becomes moot. This is especially significant when the
discovery issue is litigated for six or more months
before the district court and then appealed to a circuit
court of appeals, which typically takes another six or
more months for a decision. Of the eleven Section 1782
cases involving an international arbitration decided by
circuit courts of appeal or still pending before them, the
average length from the initial filing of the Section
from argument and a decision, which again suggests it also will
not remain viable to allow review by this Court. According to
counsel in the EWE Gasspeicher, the hearing in underlying
arbitration case has concluded and an award is expected soon. The
key point is this: except for the current AlixPartners case and
possibly the ZF Automotive case, there are no cases in the
“pipeline” that are likely to stay viable long enough to make it to
this Court’s docket.
[Page 10]
1782 application until issuance of a merits decision (or
to date if still pending) was 20.25 months.⁵
The recently dismissed Servotronics case
demonstrates that there are major procedural hurdles
that mostly preclude review of Section 1782 cases by
this Court. When certiorari was granted in Servotronics
on March 22, 2021, all argument dates in the October
2020 term had been filled, meaning that argument
could not be scheduled before October 2021, even
though the final arbitration hearing was set to begin on
May 10, 2021. Unsurprisingly, the arbitral tribunal
⁵ See, Second Circuit: National Broadcasting Co., Inc. v. Bear
Stearns & Co., Inc., 165 F.3d 184 (2d Cir. 1999) (18 months), and
In re Guo v. Deutsche Bank Securities Inc., 965 F.3d 96 (2d Cir.
2020) (19 months); Third Circuit: EWE Gasspeicher GmbH, supra.
(filed April 26, 2019, and ongoing – 18 months to date), and In re
Storag Etzel GmbH, No. 20-1833 (filed: August 29, 2019, and
dismissed on May 20, 2021 - 21months); Fourth Circuit: In re
Servotronics Inc., 954 F.3d 209 (4th Cir. 2020) (filed October 26,
2018 – 35 months); Fifth Circuit: Republic of Kazakhstan v.
Biedermann Int’l., 168 F.3d 880 (5th Cir. 1999) (5 months), and El
Paso Corp. v. La Comision Ejecutiva Hidroelectrica Del Rio Lempa,
341 Fed. Appx. 31 (5th Cir. 2009) (13 months); Sixth Circuit: Abdul
Latif Jameel Trans. Co. Ltd. v. FedEx Corp., 939 F.3d 710 (6th Cir.
2019) (16 months) and ZF Automotive, filed October 16, 2020, and
ongoing - 12 months); Seventh Circuit: Servotronics, Inc. v. Rolls-
Royce PLC, 975 F.3d 689 (7th Cir. 2020) (filed: October 26, 2018,
and dismissed on September 29, 2021 – 35 months); Ninth Circuit:
HRC-Hainan Holding Co., LLC v. Hu, supra., (filed November 13,
2019 and ongoing – 24 months); and Eleventh Circuit: In re
Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS
Forwarding (USA), Inc., 685 F.3d 987 (11th Cir. 2012), (filed: July
14, 2010, and finally dismissed by 747 F.3d 1262 (11th Cir. 2014)
(43 months), and Rendon v. Abbott Laboratories, filed March 16,
2020, and ongoing – 19 months).
[Page 11]
issued its merits award in August 2021, which led
directly to the dismissal of the matter prior to
argument.
Among the other reasons noted, this case is an ideal
vehicle for the Court to resolve the circuit split
regarding the interpretation of Section 1782 because it
comes before the Court in sufficient time to be heard
and decided this term and because the arbitral
proceeding remains at an early stage.⁶
This Court has already concluded that the question
presented in this petition requires its review. See
Servotronics, Id. A review of the jurisprudence leading
up to that grant of certiorari confirms that this Court
should grant this petition as well.
In Intel Corp. v. Advanced Micro Devices, Inc., 542
U.S. 241 (2004), this Court addressed the question of
whether the Directorate-General for Competition of the
Commission of the European Communities was a
“tribunal” within the meaning of the phrase “foreign or
international tribunal” in Section 1782(a). Citing to the
⁶ As reflected in AlixPartners’ petition (fn. 6, p. 10), the parties
have also stipulated and the district court has ordered that
compliance with the Respondent’s discovery requests is to be
deferred until after disposition of this case by the Court.
[Page 12]
law review article by the reporter to the
Congressionally established Commission on
International Rules of Judicial Procedure that had
drafted the 1964 amendments to Section 1782(a),
Justice Ginsburg’s opinion included the following
quotation from Prof. Smit’s article that stated “[t]he
term ‘tribunal’ . . . includes investigating magistrates,
administrative and arbitral tribunals, and quasi-
judicial agencies, as well as conventional civil,
commercial, criminal, and administrative courts.”⁷ 542
U.S. at 258. The Intel Court went on to hold that the
Directorate-General, which is not a court, would
nonetheless properly be considered to be a “tribunal”
within the meaning of Section 1782(a).
Notwithstanding the earlier decisions in National
Broadcasting Co., Inc. v. Bear Stearns & Co., 165 F.3d
184 (2d Cir. 1999), and Republic of Kazakhstan v.
Biedermann Int’l., 168 F.3d 880 (5th Cir. 1999), which
cases had held that Section 1782’s reference to
“tribunal” did not include private international
tribunals, some lower federal courts began interpreting
Intel as indicating that private international tribunals
should be considered to be “tribunals” within the
meaning of that term in Section 1782(a). See, e.g., In re
Roz Trading Ltd., 469 F. Supp. 2d 1221 (N.D. Ga.
2006); and In re Hallmark Capital Corp., 534 F. Supp.
2d 951 (D. Minn. 2007).⁸
⁷ International Litigation under the United States Code, 65
Columbia L. Rev. 1015, 1026-27, n. 71 (1965), Prof. Hans Smit.
⁸ In 2012, the issue of whether Section 1782 applied for
proceedings before a private international arbitral tribunal
[Page 13]
It was not until 2019 that another case involving a
private international arbitration tribunal reached a
circuit court of appeals. In May 2018, a Saudi party to
a private arbitration pending in Dubai filed an
application under Section 1782(a) in the Western
District of Tennessee in Memphis seeking discovery
from FedEx Corp. Upon denial of the application by the
district court, the Saudi party, Abdul Latif Jameel
Transportation Company, Limited (“ALJ”), appealed to
the Sixth Circuit, which reversed. Abdul Latif Jameel
Trans. Co. v. FedEx Corp., 939 F.3d 710 (6th Cir. 2019).
The Sixth Circuit’s detailed analysis of the meaning of
the term “tribunal” encouraged more applications in
arbitration cases under Section 1782, albeit with mixed
results.⁹ In addition, the international arbitration
reached the Eleventh Circuit in In re Consorcio Ecuatoriano de
Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 685 F.3d
987 (11th Cir. 2012). In its original opinion, the Eleventh Circuit
affirmed the Southern District of Florida’s order allowing
discovery to obtain evidence for private arbitral tribunals.
However, that decision was short lived because the court sua
sponte (and without explanation) withdrew its 2012 opinion 18
months later and entered a new decision that completely changed
the substance of its original opinion. 747 F.3d 1262 (11th Cir.
2014). In its new opinion, the Eleventh Circuit still affirmed the
district court but did so based on the alternative ground of there
being the expectation that formal civil and criminal proceedings in
Ecuador were “reasonably contemplated,” saying nothing about
the existence of the private international arbitration upon which
its earlier decision was based. Consequently, what had been a
circuit split with the Second and Fifth Circuits disappeared.
⁹ A Westlaw search for district court decisions brought under
Section 1782 for discovery in cases based on an underlying private
international arbitration shows that there were at least 14 new
[Page 14]
community was flooded with scores of comments in
articles, legal blogs and law firm “alerts” commenting
on the new circuit split and the need for Supreme Court
review.¹⁰ Two articles were published by the
undersigned in CPR’s Alternatives to the High Cost of
Litigation newsletter.¹¹
The Fourth Circuit soon followed the Sixth Circuit’s
decision in the first Servotronics case, decided on
March 30, 2020, Servotronics, Inc. v. Boeing Co., 954
cases filed after the Sixth Circuit’s decision. This is in comparison
to a total of some 65 cases decided in district courts prior to
September 19, 2019, the date the Sixth Circuit issued its decision
in the ALJ case.
¹⁰ See, e.g., Using the U.S. Courts to Obtain Discovery Here and
Abroad for Foreign and International Proceedings, Frederick
Acomb, 99 Mich. B.J. 32 (Sept. 2020); Practicalities and
Commercial Realities: § 1782 and its Application to Private
Commercial Arbitration, Jennifer Sandlin, 44 J. Legal Prof. 223
(Spring 2020); Compelling U.S. Discovery in International
Franchise Arbitrations: The (F)utility of Section 1782 Applications,
Matthew J. Soroky, 39 Franchise L. J. 185 (Fall 2019); Circuit
Split on 28 U.S.C. § 1782: Are U.S. Courts Trending Against
Discovery for Foreign Private Arbitrations?, Dana MacGrath,
Nilufar Hossain, Kluwer Arbitration Blog, Oct. 4, 2020; and
Second Circuit Rules in Hanwei Guo that Section 1782 Does Not
Apply to Private Commercial Arbitrations, Dana C. MacGrath, ICC
Dispute Resolution Bulletin, 2020, Issue 3, Global Developments.
¹¹ Will the Supreme Court Take Up Allowing Discovery under
Section 1782 for Private International Arbitrations? 38
Alternatives to the High Cost of Litigation 103, July-Aug. 2020;
and Update: The Section 1782 Conflict Intensifies as the
International Arbitration Issues Goes to the Supreme Court, 38
Alternatives to High Cost Litigation 125, Sept. 2020, John B.
Pinney.
[Page 15]
F.3d 209 (4th Cir. 2020). The Fourth Circuit’s decision
agreed with the Sixth Circuit, widening the circuit split
with the Second and Fifth Circuits’ respective 1999
decisions in the NBC and Biedermann cases.
There was commentary suggesting that the Guo
case, which was then before the Second Circuit and had
been argued on February 28, 2020, might follow two
Southern District of New York decisions finding that
Intel had implicitly overruled NBC, leading the Second
Circuit to fall in line with the Fourth and Sixth
Circuits.¹² However, that thought ended when the
Second Circuit issued its decision reaffirming NBC on
July 9, 2020. In re Guo v. Deutsche Bank Securities
Inc., 965 F.3d 96 (2d Cir. 2020). The Guo decision also
ended speculation that a consensus might be reached
regarding the applicability of Section 1782(a) to private
international arbitration without Supreme Court
review.¹³
Last term, the Court granted certiorari in the
second Servotronics case, decided by the Seventh
Circuit on September 22, 2020.¹⁴ 975 F.3d 589 (7th Cir.
¹² In re Children’s Invest. Fund Found. (UK), 363 F. Supp. 3d 361,
370-71 (S.D.N.Y. 2019); and In re Kleimar N.V., 220 F. Supp. 3d
517, 521-22 (S.D.N.Y. 2016).
¹³ Neither losing party in either the Fourth Circuit’s Servotronics
decision or the Second Circuit’s Guo case filed for certiorari in this
Court.
¹⁴ Servotronics had filed parallel Section 1782 applications in
Charleston, South Carolina, the place where the aircraft engine
fire giving rise to the London arbitration by Rolls-Royce occurred,
and in Chicago, Boeing’s headquarters.
[Page 16]
2020). In contrast to the Fourth Circuit’s decision in
what essentially was the same case, the Seventh
Circuit, following the Second and Fifth Circuits’
decisions in NBC and Biedermann and rejecting the
Fourth and Sixth Circuits’ decisions in the first
Servotronics case and FedEx, held that Section 1782
did not apply for private international arbitration
cases. This Court was poised to resolve the circuit split
in Servotronics but for the dismissal on the eve of the
date set for argument.
The latest case is ZF Automotive US, Inc. v.
Luxshare, Ltd.,¹⁵ in which the respondents in the
district court both appealed to the Sixth Circuit and
soon thereafter filed a petition for writ of certiorari
before judgment in this Court. The Section 1782
applicant in ZF Automotive, Luxshare, Ltd., obtained
an order allowing discovery prior to commencement of
a private international arbitration in Germany. In that
the Sixth Circuit has decided that Section 1782
authorizes such discovery, the subpoenaed party, ZF
Automotive, sought this Court’s immediate review, no
doubt believing any appeal to the Sixth Circuit would
be futile. While the ZF Automotive case presents
another opportunity for this Court to consider the
¹⁵ An appeal to the Sixth Circuit was filed, sub nom, Luxshare,
Ltd. v. ZF Automotive US, Inc., No. 21-2736, on July 21, 2021. On
October 13, 2021, the court of appeals denied ZF Automotive’s
motion to stay discovery. Immediately thereafter, ZF Automotive
applied for a stay to Justice Kavanaugh, which was referred by
him to the Court. On October 27, 2021, the Court entered an order
granting a stay of the district court’s discovery order pending
disposition of the applicant’s certiorari petition which remains
pending.
[Page 17]
applicability of Section 1782 to international
arbitration, CPR respectfully submits that only by
granting certiorari in this case will the Court have the
opportunity to definitively address Section 1782 in the
context of both private international arbitrations and
investor-state arbitrations.¹⁶ Furthermore, whether or
not the Court grants certiorari in the ZF Automotive
case, there are at least three reasons that the
AlixPartners case is an appropriate vehicle for this
court to address the meaning of the term “tribunal” as
used in Section 1782: (1) this case comes before the
Court at a time when it can be heard and decided in
the current term, greatly reducing the risk of mootness;
(2) AlixPartners makes a strong case that there should
be no distinction between the meaning of “tribunal” in
Section 1782 for private international arbitrations and
for investor-state arbitrations like that presented in
the petitioner’s case; and (3) the United States, in its
amicus brief filed in Servotronics, effectively argued
that a ruling regarding the applicability of Section
1782 for private international arbitrations would likely
also as a practical matter be determinative regarding
its applicability for investment cases.¹⁷ By granting
¹⁶ Although ZF Automotive’s certiorari petition is brought before
consideration of its appeal by the court of appeals, it would be
appropriate for the Court also to grant certiorari in that case as
well so that both could be consolidated for argument. This would
enable the Court to address definitively the applicability of Section
1782 for both private international arbitrations and investor-state
arbitrations.
¹⁷ The United States argued in its amicus brief filed in
Servotronics (p.31) that neither a private commercial arbitration
nor an investor-state arbitration can be “properly understood as a
[Page 18]
certiorari in both the ZF Automotive case and in this
case, the Court would eliminate any speculation as to
how the ruling in one case impacts the facts presented
in the other case.
The foregoing journey of jurisprudence through the
various circuits not only reflects the need for clarity on
the question but underscores the resources that are
being invested, quite apart from the resolution of the
underlying legal dispute, by parties in Section 1782
litigation. As noted above, over 20 months pass on
average between filing an application for section 1782
discovery until the matter, where contested, is
resolved. While it is hard to tell how much of this time
is spent on the threshold question of whether courts
might order discovery in aid of private arbitral tribunal
processes at all – as opposed to on the question of what
discovery may be allowed – no doubt a significant
portion of the time is being invested litigating the
jurisdictional issue. And this time could be invested far
better in the dispute’s resolution or in other productive
matters.
That the legal community is eager for resolution of
the threshold question is an understatement. There
have been seven recent law review articles written
addressing the topic, including Yanbai Andrea Wang,
Exporting American Discovery, 87 U. Chi. L. R. 2089
‘proceeding in a foreign or international tribunal’ within the
meaning of Section 1782” and that “[i]nvestor-state arbitration
resembles private commercial arbitration in the most salient
respects.” By accepting the AlixPartners case for review, the
Court can determine whether that argument, advanced by the
United States, is correct.
[Page 19]
(Nov. 2020); Case Note; Statutory Interpretation –
Textualism – Sixth Circuit Holds That Private
Commercial Arbitration is a Foreign or International
Tribunal – In re: Application to Obtain Discovery for
Use in Foreign Proceedings, 939 F.3d 710 (6th Cir.
2019), 133 Harv. L. Rev. 2627 (June 2020); Comment,
Authorization of Discovery in International Commercial
Arbitration: Demystifying the Sixth Circuit’s Statutory
Construction of 28 U.S.C. § 1782(a), Jason Arendt, 9
Am. Univ. Bus. L. Rev. 417 (2020); and Alejandro A.
Nava Cuenca, Note, Debunking the Myths:
International Commercial Arbitration and Section
1782(a), 45 Yale J. Int’l. L. 155 (Winter 2021); Case
Note, Are Private Arbitral Panels Tribunals under
§1782?: Analysis of Case Law and Interpretive
Approaches, 32 Fla.J. Int’l. L. 271 (Winter 2020); Note,
The Power of Two Words to Split Circuits, 75 U. Miami
L. Rev. 1241 (Summer 2021); and Note, A Distinction
Without a Difference: 28 U.S.C. §1782 and
International Arbitration, 66 Wayne L. Rev. 923
(Spring 2021). In addition, an entire chapter of a
recently issued treatise on Section 1782 practice is
devoted to the applicability of Section 1782 to private
international arbitrations.¹⁸
Another indication of the international arbitration
community’s interest in this issue was the inclusion of
a mock Supreme Court argument on Section 1782’s
applicability for private international arbitrations held
¹⁸ Obtaining Evidence for Use in International Tribunals under 28
U.S.C. § 1782, Edward M Mullins and Lawrence W. Newman,
editors, JurisNet, LLC (2020), Chapter 8, Use of Section 1782 in
Aid of Arbitration, David Zaslowsky and Kristina Fridman.
[Page 20]
as part of last fall’s “New York Arbitration Week.” On
November 20, 2020, there was a mock argument before
“Supreme Court Justices” Paul D. Clement (former
Solicitor General), Nicole A. Saharsky (former
Assistant Solicitor General), and Fordham Prof.
Pamela Bookman that was broadcast worldwide over
the internet on a Zoom platform, followed by a panel
discussion of the issue.¹⁹
The international arbitration community is
anxiously awaiting the Supreme Court’s definitive
resolution of this critical issue of federal law that has
significant implications globally for the resolution of
disputes arising from cross-border business
transactions, whether such disputes arise from private
commercial transactions or from investments under
investment treaties.
The petition by Servotronics was the first case
involving Section 1782(a) for which this Court’s review
had been sought since Intel in 2003. The reason for
this is quite simple. By definition, cases brought under
Section 1782 are collateral to an underlying case,
whether the underlying case is a litigation matter
before a foreign court, a criminal matter before an
investigating magistrate or an arbitration before a
private international arbitral tribunal. The purpose for
¹⁹ See, https://nyarbitrationweek.com/fordham-conference-on-
international-arbitration-and-mediation/
[Page 21]
which any Section 1782(a) application is made is
entirely to obtain evidence for use in the underlying
case. That means, as a practical matter, there
commonly is an established case schedule for gathering
evidence constraining the amount of time available to
obtain the desired evidence prior to commencement of
the merits hearing or other final determination of the
matter. Moreover, in almost every case, the applicant
will have a limited budget that it can reasonably
devote to both litigating over the United States court’s
jurisdiction for compelling production of the expected
evidence and actually obtaining an order allowing the
requested discovery, assuming it successfully wins on
any jurisdictional challenge. Each of these factors make
it the rare case that as a practical matter can be
appealed beyond the district court to a circuit court of
appeals, let alone seeking further review by this Court.
Consequently, it is not only important that this
Court grant certiorari in this case, but also issue a
definitive ruling that decides the meaning of the word
“tribunal” and whether Section 1782 may be used to
obtain evidence in United States courts for use before
international arbitral tribunals. Only the AlixPartners
case, where the proceedings have been stayed pending
the resolution of this matter, can allow the Court to
decide definitively the issue for both private
international arbitration tribunals and international
investment treaty arbitration tribunals.
Given the paucity of other Section 1782 cases that
can even make it to an appellate court, much less the
Supreme Court, it is not clear when this Court will
soon have another occasion to resolve this issue.
[Page 22]
Hence, the uncertainty resulting from the current
circuit split could well remain unresolved for many
years to come. To illustrate, of the five recent cases
decided by the Second, Fourth, Sixth and Seventh
Circuits, only the Seventh Circuit’s Servotronics and
the current AlixPartners case have been appealed to
this Court after issuance of a decision by a court of
appeals.²⁰ As also explained at note 4 above, there is
no assurance that either of the two cases argued last
year in the Third and Ninth Circuits²¹ will ever be
appealed to this Court. Moreover, for the reasons
stated, both of those cases appear likely to become moot
by the time the courts of appeals issue their respective
decisions, or the losing party might simply decide not
to seek certiorari for economic or timing reasons. In
other words, it is uncertain whether any of the other
cases in the current decisional pipeline will ever be
appealed to the Supreme Court. And finally, even if one
or more of these cases is appealed to this Court, there
can be no assurance that the case will avoid becoming
²⁰ Second Circuit: the CIETAC arbitration hearing commenced 13
days after issuance of the decision in the Guo case; Fourth Circuit:
even though Boeing represented to both the Fourth Circuit and
the South Carolina district court that it would be filing for
certiorari, the time for filing expired on August 27, 2020; Sixth
Circuit: the ALJ v. FedEx case was promptly settled on remand to
the district court.
²¹ As noted in footnote 5 above, the German arbitration
underlying the EWE case pending before the Third Circuit will
likely be resolved by issuance of an award this year, and a final
award has been issued in the CIETAC arbitration in the Ninth
Circuit’s case, HRC-Hainan Holding Co., LLC v. Hu.
[Page 23]
moot prior to this Court’s decision on the merits as was
the case in Servotronics.²²
As a leading voice supporting effective and efficient
methods for resolution of legal conflict for more than 40
years, CPR urges the Court to grant AlixPartners’
petition for certiorari to resolve the current circuit split
that can only be accomplished by this Court. Given the
intensity of interest in the international arbitration
community and the indisputable need for avoidance of
unnecessary and costly litigation over the jurisdiction
of district courts, this Court must put to rest the
question presented by taking up this case and deciding
this case on its merits.
²² It is important to note that cases based on Section 1782 do not
appear to fall within the doctrine on the exception to mootness
based on cases that repeat but evade review. Under United States
v. Sanchez-Gomez, 138 S.Ct. 1532, 1540 (2018), that doctrine was
most recently explained as follows: “(1) the challenged action is in
its duration too short to be fully litigated prior to its cessation or
expiration, and (2) there will be a reasonable expectation that the
same complaining party will be subjected to the same action
again.” Even if this or a related exception to the mootness doctrine
might apply here, the significant risk that the underlying
arbitration case will be finally resolved prior to issuance of this
Court’s merits decision counsels in favor of resolution this term on
this important issue of federal law.
[Page 24]
Dated: November 5, 2021
Respectfully submitted,
John B. Pinney
Counsel of Record
Roula Allouch
John C. Greiner
GRAYDON HEAD & RITCHEY LLP
312 Walnut Street, Ste. 1800
Cincinnati, OH 45202
(513) 629-2730
[email protected]
Counsel for Amicus Curiae