Amicus Curiae Brief — Servotronics, Inc., Petitioner v. Rolls-Royce PLC, et al.

No. 20-794

In the Supreme Court of the

United States

________________

SERVOTRONICS, INC.,

Petitioner,

v.

ROLLS-ROYCE PLC AND THE BOEING COMPANY,

Respondents.

________________

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

________________

BRIEF OF FEDERAL ARBITRATION, INC.

(FEDARB) AS AMICUS CURIAE IN SUPPORT OF

PETITIONER

________________

HENRY S. WEISBURG

Counsel of Record

CHRISTOPHER M. RYAN

JONATHAN J. TOMPKINS

JESSE D.H. SHERRETT

OYINKAN MURAINA

SHEARMAN & STERLING LLP

599 LEXINGTON AVENUE

New York, New York 10022

(212) 848-4000

hweisburg@shearman.com

Counsel for Amicus Curiae

May 12, 2021

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES.......................................... iii

INTEREST OF AMICUS CURIAE ............................... 1

SUMMARY OF ARGUMENT........................................ 2

ARGUMENT ................................................................... 3

I.

The Text of 28 U.S.C. § 1782(a) Includes

Commercial Arbitral Tribunals within the

Phrase “Foreign or International Tribunals” .... 5

A. The Court Must Interpret Section 1782(a)

Based on its Unambiguous Plain Meaning .....5

B. The Plain Meaning of Section 1782(a) Includes

Commercial Arbitral Tribunals .......................7

C. Even if the Court were to Determine that the

Plain Meaning of “Foreign or International

Tribunal” was Ambiguous, there is No Clearly

Expressed Legislative Intent Excluding

Arbitral Tribunals ..........................................12

II.

The Distinction Drawn by Some Courts between

“State Sponsored” Arbitrations and “Private”

Arbitrations is False and, in any Event, is

Irrelevant under 28 U.S.C. § 1782(a) ............... 16

A. Commercial Arbitration Operates in

Accordance with National and International

Legal Authority...............................................17

B. Efforts to Distinguish Investor-State

Arbitration from Commercial Arbitration for

Purposes of Section 1782(a) Fail ....................21

ii

III.

The Court’s Functional Determinations in Intel

are Sufficient to Conclude that All Arbitral

Tribunals are Included in the Phrase “Foreign

or International Tribunal” ................................ 25

CONCLUSION.............................................................. 31

iii

TABLE OF AUTHORITIES

Page(s)

Cases:

A.S. Abell Co. v. Baltimore Typographical Union

No. 12,

338 F.2d 190 (4th Cir. 1964) ................................ 10

Abdul Latif Jameel Transp. Co. v. FedEx Corp.,

939 F.3d 710 (6th Cir. 2019) ........................ passim

Advanced Micro Devices, Inc. v. Intel Corp.,

292 F.3d 664 (9th Cir. 2002) ................................ 25

Am. Express Co. v. Italian Colors Rest.,

570 U.S. 228 (2013) .............................................. 16

Artis v. District of Columbia,

138 S. Ct. 594 (2018) .............................................. 6

Bernhardt v. Polygraphic Co. of Am.,

350 U.S. 198 (1956) ................................................ 9

Circuit City Stores, Inc. v. Adams,

532 U.S. 105 (2001) ................................................ 7

Consorcio Ecuatoriano v. JAS Forwarding (USA),

685 F.3d 987 (11th Cir. 2012), vacated and

superseded 747 F.3d 1262 (11th Cir. 2014) ......... 28

Contra Ukrnafta v. Carpatsky Petroleum Corp.,

2009 WL 2877156 (D. Conn. Aug. 27, 2009) ....... 22

Emlenton Refining Co. v. Chambers,

35 F.2d 273 (3d Cir. 1929) ................................... 10

iv

Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612 (2018) .......................................... 16

Ex rel Application of Winning (HK)

Shipping Co. Ltd.,

2010 WL 1796579 (S.D. Fla. Apr. 30, 2010)........ 29

FDIC v. Meyer,

510 U.S. 471 (1994) ................................................ 8

Fonseca v. Blumenthal,

620 F.2d 322 (2d Cir. 1980) ................................. 26

Food Mktg. Inst. v. Argus Leader Media,

139 S. Ct. 2356 (2019) ............................................ 7

Fore River Shipbuilding Co. v. S. Pac. Co.,

219 F. 387 (1st Cir. 1914) .................................... 10

Garcia v. United States,

469 U.S. 70 (1984) .................................................. 7

Hall St. Assocs. v. Mattel, Inc.,

552 U.S. 576 (2008) ........................................ 28, 29

Hartford Underwriters Ins. Co. v.

Union Planters Bank, N.A.,

530 U.S. 1 (2000) .................................................... 6

Howsam v. Dean Witter Reynolds,

537 U.S. 79 (2002) ................................................ 16

HRC-Hainan Holding Co., LLC v. Yihan Hu,

2020 WL 906719 (N.D. Cal. Feb. 25, 2020) ......... 15

Hyland v. Millers Nat’l Ins. Co.,

91 F.2d 735 (9th Cir. 1937) .................................. 10

v

In re Arb. between Norfolk S. Corp., Norfolk S. Ry.

Co., & Gen. Sec. Ins. Co. & Ace Bermuda Ltd.,

626 F. Supp. 2d 882 (N.D. Ill. 2009) ........ 17, 29, 31

In re Dubey,

949 F. Supp. 2d 990 (C.D. Cal. 2013) .................. 16

In re Euromepa S.A.,

51 F.3d 1095 (2d Cir. 1995) ................................. 30

In re Hallmark Capital Corp.,

534 F. Supp. 2d 951 (D. Minn. 2007) .................. 16

In re Letter of Request from Crown Prosecution Serv.,

870 F.2d 686 (D.C. Cir. 1989) .............................. 30

In re Oxus Gold PLC,

2007 WL 1037387 (D. N.J. Apr. 2, 2007) ............ 21

In re Roz Trading Ltd.,

469 F. Supp. 2d 1221 (N.D. Ga. 2006) ................. 15

In re Servotronics, Inc.,

2019 WL 9698535 (N.D. Ill. Apr. 22, 2019) ......... 16

Intel Corp. v. Advanced Micro Devices, Inc.,

542 U.S. 241 (2004) ...................................... passim

Kanmak Mills, Inc. v. Soc’y Brand Hat Co.,

236 F.2d 240 (8th Cir. 1956) ................................ 10

Kentucky River Mills v. Jackson,

206 F.2d 111 (6th Cir. 1953) ................................ 10

Livingston v. Shreveport-Texas League

Baseball Corp.,

128 F. Supp. 191 (W.D. La. 1955) ....................... 11

vi

Mitsubishi Motors Corp. v.

Soler Chrysler Plymouth, Inc.,

473 U.S. 614 (1985) .......................................... 9, 28

Red Cross Line v. Atl. Fruit Co.,

264 U.S. 109 (1924) ................................................ 9

Republic of Kazakhstan v. Biedermann Int’l,

168 F.3d 880, 882 (5th Cir. 1999) .......................... 9

Servotronics, Inc. v. The Boeing Co.,

954 F.3d 209 (4th Cir. 2020) ...................... 4, 17, 20

Shapiro v. United States,

335 U.S. 1 (1948) .................................................. 15

Tobey v. Cty. of Bristol,

23 F. Cas. 1313 (D. Mass. 1845) ............................ 9

Toledo S.S. Co. v. Zenith Trans. Co.,

184 F. 391 (6th Cir. 1911) .................................... 10

United States v. Furlong,

18 U.S. 184 (1820) .................................................. 6

United States v. LaBonte,

520 U.S. 751 (1997) ................................................ 7

United States v. Ron Pair Enters., Inc.,

489 U.S. 235 (1989) .......................................... 6, 12

United States v. Turkette,

452 U.S. 576 (1981) .............................................. 12

vii

Wilko v. Swan,

201 F.2d 439 (2d Cir. 1953) ................................. 10

Statutes and Other Authorities:

9 U.S.C. § 2 ................................................................ 19

9 U.S.C. § 10 .............................................................. 28

9 U.S.C. § 201 ............................................................ 19

28 U.S.C. § 1782 ................................................ passim

28 U.S.C. § 1782(a) ............................................ passim

2 JOSEPH STORY, COMMENTARIES ON EQUITY

JURISPRUDENCE § 1457 (Boston, Little Brown and

Co., 9th ed. 1866) ................................................... 8

3 WILLIAM BLACKSTONE, COMMENTARIES ON THE

LAWS OF ENGLAND 17 (A. Strahan, T. Cadell & D.

Prince eds., 10th ed., London 1787) ...................... 8

6 C.J.S. Arbitration and Award, § 1 (1937) .............. 11

33 Cong. Ch. 140; 10 Stat. 630 (1855) ........................ 3

37 Cong. Ch. 95; 12 Stat. 769 (1863) .......................... 3

ANTONIN SCALIA & BRYAN A. GARNER, READING LAW:

THE INTERPRETATION OF LEGAL TEXTS 69

(2012) ............................................................ 6, 9, 11

viii

Brief for Intervenors-Appellees, Servotronics, Inc. v.

Rolls-Royce PLC, No. 1:18-cv-07187 (7th Cir. July

8, 2019) ................................................................. 19

BRYAN A. GARNER, A DICTIONARY OF MODERN LEGAL

USAGE (2d ed. 1995) ........................................10-11

Hans Smit, American Judicial Assistance to

International Arbitral Tribunals, 8 AM. REV. INT’L

ARB. 153 (1997) .............................................. 18, 30

Hans Smit, International Litigation under the United

States Code, 65 COLUM. L. REV. 1015 (1965)....... 30

Hans Smit, The Supreme Court Rules on the Proper

Interpretation of Section 1782: Its Potential

Significance for International Arbitration, 14 AM.

REV. INT’L ARB. 295 (2003) ............................. 14, 24

Luca Radicati di Brozolo, The Present – Commercial

Arbitration as a Transnational System of Justice:

The Control System of Arbitral Awards: A ProArbitration Critique of Michael Reisman's

“Architecture of International Commercial

Arbitration, in Albert Jan Van den Berg (ed.),

ARBITRATION: THE NEXT FIFTY YEARS, ICCA

CONGRESS SERIES, Vol. 16 (Kluwer 2012) ........... 18

MAX RADIN, LAW DICTIONARY (1955) .................. 10, 11

Merriam-Webster's Dictionary of Law (1996) .......... 11

N.Y. C.P.L.R. §§ 7501-7515 (McKinney 2018) ......... 19

REP. NO. 88-1580 (1964), as reprinted in

1964 U.S.C.C.A.N. 3782......................................... 4

ix

S. REP. N. 85-2392 (1958), as reprinted in

1958 U.S.C.C.A.N. 5201......................................... 4

Sup. Ct. R. 37.6 ............................................................ 1

W. Michael Reisman & Brian Richardson, The

Present – Commercial Arbitration as a

Transnational System of Justice: Tribunals and

Courts: An Interpretation of the Architecture of

International Commercial Arbitration ................ 18

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY

(1964) .................................................................... 10

1

INTEREST OF AMICUS CURIAE1

Federal Arbitration, Inc. (“FedArb”) is a

nationwide proponent of and source for alternative

dispute resolution services, including arbitration,

mediation, mock trials, special masters and

corporate monitoring of court orders. For the past

15 years, FedArb has assisted clients embroiled in

some of the largest and most consequential domestic

and international arbitrations.

FedArb maintains a panel of highly

experienced arbitrators that includes more than

60 retired Article III judges, as well as multiple

retired Article I and state court judges.

See

https://www.fedarb.com/ (including a list of tribunal

panelists, at https://www.fedarb.com/panelists/).

FedArb has developed detailed arbitration

rules, which, inter alia, favor the application in its

administered arbitrations of the Federal Rules of

Civil Procedure and Federal Rules of Evidence

absent party agreement otherwise. See FedArb

Arbitration

Rules,

Rule

1.04

(https://www.fedarb.com/rules/fedarb-rules/).

For parties accustomed to practicing in federal

court, the default use of the Federal Rules and

FedArb’s roster of former judges enables familiar and

efficient rule-based procedures, while maintaining

Pursuant to Rule 37.6 of the Rules of this Court, the

undersigned hereby states that no counsel for a party authored

any part of this brief, in whole or in part, and no person other

than amicus curiae or its counsel made any monetary

contribution to the preparation or submission of this brief.

Written confirmation of consent to this filing has been received

from counsel of record for all parties.

1

2

the traditional benefits of arbitration (i.e., arbitrator

selection, choice of law, confidentiality, costefficiency, customization, world-wide enforceability,

etc.).

FedArb, as a leading arbitral institution with

a keen focus on familiar federal court procedure,

therefore has a strong interest in the applicability of

28 U.S.C. § 1782(a) to arbitrations commenced

pursuant to party agreement, as it in effect extends

the application of such procedure to a further group

of arbitrations. FedArb, moreover, has an interest in

seeing the United States policy in favor of arbitration

be furthered by permitting the rightful extension of

assistance available under section 1782(a) to all

foreign and international arbitral tribunals.

SUMMARY OF ARGUMENT

Congress, over time, has greatly expanded and

liberalized the scope of Section 1782(a) of Title 28 of

the U.S. Code—a statute providing for federal court

assistance in gathering evidence for use in foreign or

international tribunals.

The straightforward

question raised in this case is whether that statute’s

use of the term “tribunal” encompasses arbitral

tribunals hearing commercial cases. The text of the

statute, standing alone, plainly includes such

tribunals. The legislative history, to which this

Court need not resort under well-established rules of

statutory construction, only further bolsters that

position.

The Court should disregard the distinction

some courts have drawn between so-called “private”

and “state-sponsored” arbitral tribunals in order to

3

exclude the former from section 1782’s reach. The

supposed distinction between these two variations of

arbitration is illusory as all forms of arbitration are

in fact “state sponsored,” including the arbitration

that gives rise to this case.

Even if this Court were to find that the plain

language of section 1782(a) somehow does not

encompass commercial arbitral tribunals, the Court’s

well-reasoned decision in Intel Corp. v. Advanced

Micro Devices, Inc., 542 U.S. 241 (2004), should put

this issue to rest. In Intel, the Court held that there

was “no warrant to exclude” a “tribunal” from

section 1782(a)’s ambit to the extent it “acts as a

first-instance decisionmaker.” Id. at 258. Arbitral

tribunals—including commercial and investor-state

tribunals alike—are indisputably first-instance

decisionmakers performing, like courts, an important

adjudicatory function.

For these reasons, as elaborated herein, the

Court should reverse the decision of the Seventh

Circuit and hold that the phrase “foreign or

international tribunal” encompasses commercial

arbitral tribunals.

ARGUMENT

28 U.S.C. § 1782 reflects a nearly 150-year

Congressional policy to “provide federal-court

assistance in gathering evidence for use in foreign

tribunals.” Intel Corp. v. Advanced Micro Devices,

Inc., 542 U.S. 241, 247 (2004).2 While this policy

For a detailed history of the statute, whose predecessor

legislation first appeared in 1855 and 1863 (see 33 Cong. Ch.

140; 10 Stat. 630 (1855), 37 Cong. Ch. 95; 12 Stat. 769 (1863)),

2

4

was initially limited to proceedings in which a

foreign sovereign was a party or had an interest (id.

at 248), Congress has “substantially broadened the

scope of assistance” under the statute over time. Id.3

In 1958, having recognized “[t]he extensive increase

in . . . international, commercial and financial

transactions . . . and the resultant disputes” that

“involv[ed] both individuals and governments,” S.

REP. N. 85-2392, at 5202-03 (1958), as reprinted in

1958 U.S.C.C.A.N. 5201, 5202-03, Congress further

expanded the scope of section 1782(a) to “improve the

assistance that it had previously afforded.”

Servotronics, Inc. v. The Boeing Co., 954 F.3d 209,

213 (4th Cir. 2020). That process—led by Professor

Hans Smit and the Commission on International

Rules of Judicial Procedure—lasted six years and

resulted in a “complete revision of § 1782.” Intel, 542

U.S. at 248. Ultimately, the 1964 amendments to

section 1782(a) “increas[ed] international cooperation

by providing U.S. assistance in resolving disputes

before not only foreign courts but before all foreign

and international tribunals.” Servotronics, 954 F.3d

at 213 (emphasis in original); REP. NO. 88-1580, at

3782 (1964), as reprinted in 1964 U.S.C.C.A.N. 3782

see Brief for the United States as Amicus Curiae Supporting

Affirmance, Intel, 542 U.S. 241 (No. 02-572).

For example, in 1948, when Congress consolidated and

codified the prior legislation as section 1782, it also eliminated

the requirement that a foreign sovereign be a party or have an

interest in the proceedings and permitted district courts to

designate persons to preside at depositions “to be used in any

civil action pending in any court in a foreign country with

which the United States is at peace.” Intel, 542 U.S. at 248

(emphasis in original). In 1949, Congress again broadened the

statute by replacing “civil action” with “judicial proceeding.” Id.

3

5

(“1964 Senate Report”) (explaining that the purpose

of the amendments was to “improve U.S. judicial

procedures for . . . [o]btaining evidence in the United

States in connection with proceedings before foreign

and international tribunals.”). In doing so, the

revised section 1782(a) gave US federal courts the

broad authority to provide evidentiary assistance to

any “foreign or international tribunal.”

Such

“tribunals” undoubtedly include commercial arbitral

tribunals.

I.

The Text of 28 U.S.C. § 1782(a) Includes

Commercial Arbitral Tribunals within

the Phrase “Foreign or International

Tribunals”

Section 1782 assists tribunals and interested

parties in obtaining documents and testimony for use

“in a proceeding in a foreign or international

tribunal.” 28 U.S.C. §1782(a). Some courts have

applied this statute in a manner that is inconsistent

with the plain meaning of the text. Indeed, courts

have twisted the meaning of the phrase “foreign or

international tribunal” to justify including certain

tribunals within its scope, including so-called “statesponsored” arbitral tribunals, and excluding others,

most notably commercial arbitral tribunals. There is

no basis for such a tortured construction, as

Congress imposed no caveats or conditions on what

constitutes a “foreign or international tribunal.”

A.

The Court Must Interpret Section

1782(a) Based on its Unambiguous

Plain Meaning

This is a straightforward case of statutory

construction. The Court must therefore “begin [its

6

examination of section 1782(a)] with the language of

the statute.” Intel, 542 U.S. at 255 (internal citation

omitted). “In determining the meaning of a statutory

provision, [the Court] look[s] first to its language,

giving the words used their ordinary meaning.” Artis

v. District of Columbia, 138 S. Ct. 594, 603 (2018)

(citation omitted) (internal quotation marks

omitted). When “the statute’s language is plain, ‘the

sole function of the courts’—at least where the

disposition required by the text is not absurd—‘is to

enforce it according to its terms.’” United States v.

Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989)

(citation omitted) (internal quotation marks

omitted); see also Hartford Underwriters Ins. Co. v.

Union Planters Bank, N.A., 530 U.S. 1, 13 (2000) (“It

suffices that the natural reading of the text produces

the result we announce.”); ANTONIN SCALIA & BRYAN

A. GARNER, READING LAW: THE INTERPRETATION OF

LEGAL TEXTS 69 (2012) [hereinafter Scalia, Reading

Law] (“Interpreters should not be required to divine

arcane nuances or to discover hidden meanings.”).

When Congress uses broad or general terms, such as

“foreign or international tribunal,” they are to be

“accorded their full and fair scope,” and not

“arbitrarily limited,” since “the presumed point of

using general words is to produce general coverage—

not to leave room for courts to recognize ad hoc

exceptions.” Scalia, Reading Law 101; see also

United States v. Furlong, 18 U.S. 184, 196 (1820)

(“[G]eneral words . . . ought not . . . to be restricted so

as to exclude any cases within their natural

meaning.”).

Accordingly, where a particular

“disposition is required by the text of the statute,”

that should conclude the Court’s analysis. Intel, 542

U.S. at 267 (Scalia, J., concurring).

7

Moreover, courts should not presume that the

language of a statute is ambiguous. See United

States v. LaBonte, 520 U.S. 751, 757 (1997) (“We do

not start from the premise that [the statutory]

language is imprecise. Instead, we assume that in

drafting legislation, Congress said what it meant.”).

Similarly, courts may not impose their own

limitations upon a plain and unambiguous statute or

resort to legislative history to upend its commonsense construction. See, e.g., Food Mktg. Inst. v.

Argus Leader Media, 139 S. Ct. 2356, 2364 (2019)

(“Even those of us who sometimes consult legislative

history will never allow it to be used to ‘muddy’ the

meaning of ‘clear statutory language.’”); Circuit City

Stores, Inc. v. Adams, 532 U.S. 105, 119 (2001) (“As

the conclusion we reach today is directed by the text

of § 1, we need not assess the legislative history of

the . . . provision.”); Garcia v. United States, 469 U.S.

70, 78 (1984) (“We are not willing to narrow the plain

meaning of even a criminal statute on the basis of a

gestalt judgment as to what Congress probably

intended.”).

B.

The Plain Meaning of Section 1782(a)

Includes Commercial Arbitral

Tribunals

Section 1782(a) provides that:

The district court of the district in which a

person resides or is found may order him to

give his testimony or statement or to produce

a document or other thing for use in a

proceeding in a foreign or international

tribunal, including criminal investigations

conducted before formal accusation. The order

8

may be made pursuant to a . . . request made,

by a foreign or international tribunal or upon

the application of any interested person. …

28 U.S.C. § 1782(a) (emphasis added).

The phrase “foreign or international tribunal”

is not defined within section 1782(a). However, the

text of the statute, standing alone, plainly includes

commercial arbitral tribunals, as they are tribunals

within the ordinary, common sense, and objective

meaning of that term. See FDIC v. Meyer, 510 U.S.

471, 476 (1994) (“In the absence of . . . a definition,

we construe a statutory term in accordance with its

ordinary or natural meaning.”); Scalia, Reading Law

419

(while

dictionaries

are

“useful

and

authoritative,” they “tend to lag behind linguistic

realities—so a term now known to have first occurred

in print in 1900 might not have made its way into a

dictionary until 1950 or even 2000.”).

The term “tribunal” has long and widely been

understood to include arbitral tribunals, including

commercial arbitral tribunals. For example, in 1787,

Blackstone’s Commentaries on the Laws of England

discussed commercial arbitration and noted “the

great use of these peaceable and domestic tribunals,

especially in settling matters of account, and other

mercantile transactions.” 3 WILLIAM BLACKSTONE,

COMMENTARIES ON THE LAWS OF ENGLAND 17 (A.

Strahan, T. Cadell & D. Prince eds., 10th ed., London

1787); see also 2 JOSEPH STORY, COMMENTARIES ON

EQUITY JURISPRUDENCE § 1457 at 686 (Boston, Little

Brown and Co., 9th ed. 1866) (referring to private

commercial arbitrations as “tribunals”); Abdul Latif

Jameel Transp. Co. v. FedEx Corp., 939 F.3d 710,

721-22 (6th Cir. 2019) (amassing sources).

9

Similarly, over the last 100 years, this Court

has consistently referred to arbitrators as

“tribunals.”4 See, e.g., Mitsubishi Motors Corp. v.

Soler Chrysler Plymouth, Inc., 473 U.S. 614, 627-37,

638 (1985) (“[N]ational courts will need to shake off

the old judicial hostility to arbitration, and also their

customary and understandable unwillingness to cede

jurisdiction of a claim arising under domestic law to

a foreign or transnational tribunal.”) (emphasis

added) (citation omitted) (internal quotation marks

omitted); Bernhardt v. Polygraphic Co. of Am., 350

U.S. 198, 203 (1956) (referring to a commercial

arbitration panel as a “tribunal”); Red Cross Line v.

Atl. Fruit Co., 264 U.S. 109, 121 n.1 (1924) (quoting

Tobey v. Cty. of Bristol, 23 F. Cas. 1313, 1320 (D.

Mass. 1845) (Story, J.)) (“[W]hen [courts of equity]

are asked to . . . compel the parties to appoint

arbitrators whose award shall be final, they

necessarily pause to consider whether such tribunals

possess adequate means of giving redress . . . .”).

The Circuit Courts of Appeal likewise have

long referred to arbitration “tribunals.” See, e.g.,

Some courts (see Republic of Kazakhstan v. Biedermann

Int’l, 168 F.3d 880, 882 (5th Cir. 1999)) have suggested that

commercial arbitral tribunals were a new concept in the United

States at the time of the 1964 amendments to section 1782(a)—

a position that is rebutted by this Court’s recognition of

commercial arbitral tribunals in the early 1900s. In any event,

that point is irrelevant. As Justice Scalia has remarked, “The

meaning of rules is constant. Only their application to new

situations presents a novelty. … ‘Suppose a legislator enacts

that it shall be a crime for anyone to “carry concealed on his

person any dangerous weapon.” …’ The category denoted by

any dangerous weapon may include untold numbers of yet-tobe-invented harmful devices.” Scalia, Reading Law 86.

4

10

A.S. Abell Co. v. Baltimore Typographical Union No.

12, 338 F.2d 190, 195 (4th Cir. 1964) (“Board of

Arbitration is the proper tribunal”); Kanmak Mills,

Inc. v. Soc’y Brand Hat Co., 236 F.2d 240, 244 (8th

Cir. 1956) (referring to commercial AAA arbitration

“tribunal”); Wilko v. Swan, 201 F.2d 439, 444 (2d Cir.

1953) (referring to a “‘court of competent jurisdiction’

but also in any other competent tribunal, such as

arbitration”); Kentucky River Mills v. Jackson, 206

F.2d 111, 119 (6th Cir. 1953) (recognizing contractbased arbitration panel as an “arbitration tribunal”);

Hyland v. Millers Nat’l Ins. Co., 91 F.2d 735, 737

(9th Cir. 1937) (“tribunal of three arbitrators”);

Emlenton Refining Co. v. Chambers, 35 F.2d 273, 275

(3d Cir. 1929) (“fact finding tribunal, such as

arbitrators or a jury”); Fore River Shipbuilding Co. v.

S. Pac. Co., 219 F. 387, 395 (1st Cir. 1914) (“any

tribunal, whether it was court or jury, judges or

arbitrators”); Toledo S.S. Co. v. Zenith Trans. Co.,

184 F. 391, 400 (6th Cir. 1911) (“parties who have

sought a settlement of their disputes out of court by a

tribunal of their own choosing”).

The use of the term “tribunal” by courts and

scholars when referring to arbitrations is consistent

with the dictionary definitions of that term before

and after the 1964 amendments to the statute were

adopted. See, e.g., MAX RADIN, LAW DICTIONARY

(1955) (“A general word equivalent to court, but of

more extensive use in public and international law”);

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY

(1964) (a “tribunal” includes “a person or body of

persons having authority to hear and decide disputes

so as to bind the disputants . . . : something that

decides or judges: something that determines or

directs a judgment or course of action”); BRYAN A.

11

GARNER, A DICTIONARY OF MODERN LEGAL USAGE

(2d ed. 1995) (“(1) ‘a court or other adjudicatory

body[]’ . . . . In its most usual application—sense

(1)—tribunal is broader than court and generally

refers to a body, other than a court, that exercises

judicial

functions . . . .”);

Merriam-Webster's

Dictionary of Law (1996) (“a court or forum of justice:

a person or body of persons having to hear and decide

disputes so as to bind the parties”); Scalia, Reading

Law 72, 419, 423, Appendix A (listing the “Max

Radin, Law Dictionary,” “Bryan A. Garner, A

Dictionary of Modern Legal Usage” and “MerriamWebster’s Dictionary of Law” as three of “the most

useful and authoritative” dictionaries “that can be

consulted to determine the near-contemporaneous

common meaning of words” in the period 19512000).5 See also 6 C.J.S. Arbitration and Award, § 1,

p. 152 (1937) (“The settlement of controversies by

arbitration is a legally favored contractual

proceeding of common law origin by which the

parties by consent submit the matter for

determination to a tribunal of their own choosing in

substitution for the tribunals provided by the

Legal dictionaries providing for narrower definitions—

confining the term to “judges,” “judicial court[s],” “[a] court,” or

“seat or bench for the judge or judges of a court” (see FedEx, 939

F.3d at 719-20)—are rendered inapposite by Congress’s having

granted liberal access to section 1782(a) through its 1964

amendments, explicitly removing the phrase “judicial

proceeding pending in any court” and “replac[ing] [it] with the

phrase ‘in a proceeding in a foreign or international tribunal.’”

Intel, 542 U.S. at 248-49 (emphasis added); FedEx, 939 F.3d at

710 n.5 (“We would be remiss if we did not note that both

parties agree that the meaning of ‘tribunal’ in § 1782(a) is not

limited to ‘court’—the narrower of the two definitions we will

discuss.”) (emphasis in original).

5

12

ordinary processes of the law”) (cited in Livingston v.

Shreveport-Texas League Baseball Corp., 128 F.

Supp. 191 (W.D. La. 1955)).

There can be no doubt that the meaning of the

term “tribunal” included arbitral tribunals in 1964,

when the current language of the statute was drafted

and the statute itself was broadly amended. Had

Congress intended to materially narrow both the

meaning of the term “tribunal” and the courts’

discretion “at a time when it was enacting

liberalizing amendments to the statute, it would

have included statutory language to that effect.”

Intel, 542 U.S. at 260 (internal citation omitted).

Congress, however, provided “categorical language”

(Intel, 542 U.S. at 267 (Scalia, J., concurring)) that a

federal district court may permit assistance to any

“foreign or international tribunal,” without otherwise

limiting that term. The term’s general and common

sense meaning, therefore, controls.

C.

Even if the Court were to Determine

that the Plain Meaning of “Foreign

or International Tribunal” was

Ambiguous, there is No Clearly

Expressed

Legislative

Intent

Excluding Arbitral Tribunals

If the Court determines that the plain

meaning of the term “foreign or international

tribunal” is clear, its analysis must stop there. If,

however, the Court finds that the term is ambiguous,

the Court may look to “clearly expressed legislative

intent” to determine its meaning. United States v.

Turkette, 452 U.S. 576, 580 (1981); see also Ron Pair,

489 U.S. at 242 (“The plain meaning of legislation

13

should be conclusive, except in the ‘rare cases [in

which] the literal application of a statute will

produce a result demonstrably at odds with the

intentions of its drafters.’”) (internal citation

omitted). There is no clearly expressed legislative

intent

to

exclude

arbitral

tribunals

from

section 1782(a)’s scope. Nothing in the 1964 Senate

Report accompanying the amended statute states

Congress’s intent to limit the types of tribunals that

could benefit from section 1782(a).

Quite the

opposite.

Congress emphasized that the “word

‘tribunal’ is used to make it clear that assistance is

not confined to proceedings before conventional

courts,” but also includes “administrative and quasijudicial proceedings . . . .” See 1964 Senate Report,

at 3788 (emphasis added). It further stated:

[I]n view of the constant growth of

administrative and quasi-judicial proceedings

all over the world, the necessity for obtaining

evidence in the United States may be as

impelling in [these] proceedings . . . as in

proceedings before a conventional foreign

court. Subsection (a) therefore provides the

possibility of U.S. judicial assistance in

connection with all such proceedings. Finally,

the assistance made available by subsection

(a) is also extended to international tribunals

and litigants before such tribunals.

Id. (emphasis added).

Thus, the Senate made clear that the 1964

amendments were intended to “clarif[y] and

liberaliz[e] existing U.S. procedures for assisting

foreign and international tribunals and litigations”

by “replac[ing], and eliminat[ing] the undesirable

14

limitations of, the assistance extended by” the

predecessor statutes. Id.

The legislative intent to apply the phrase

“foreign or international tribunal” liberally was

confirmed by Hans Smit, the principal author of the

1964 amendments, which were accepted wholesale by

Congress.

According to Professor Smit, the

“legislative history puts beyond doubt that the

assistance to international tribunals for which

Section 1782 provides also extends to private

international tribunals.

…

[Such] history

demonstrates overwhelmingly that the purpose of

Section 1782 was to make the assistance for which it

provides available on the most liberal and

comprehensive basis.” Hans Smit, The Supreme

Court Rules on the Proper Interpretation of Section

1782: Its Potential Significance for International

Arbitration, 14 AM. REV. INT’L ARB. 295, 305-06

(2003) [hereinafter Smit, The Supreme Court Rules]

(emphasis added).

The Court has recognized Congress’s intent to

broaden the reach of section 1782(a) over time. In

Intel, the Court stressed that “Congress substantially

broadened the scope of assistance federal courts

could provide for foreign proceedings” and “the

legislative history . . . reflects Congress’ recognition

that judicial assistance would be available ‘whether

the foreign or international proceeding or

investigation is of a criminal, civil, administrative, or

other nature.

…

Nothing suggests that this

amendment was an endeavor to rein in, rather than

to confirm . . . the broad range of discovery authorized

in 1964.” Intel, 542 U.S. at 247-48, 259 (emphasis in

original removed, new emphasis added); see also

15

FedEx, 939 F.3d at 727-28 (“Assuming that

legislative history is a helpful aid in some cases, . . .

we do not find that it contradicts our conclusion here.

. . . If anything, what the [legislative] statements

make clear is Congress’s intent to expand § 1782(a)’s

applicability.”); HRC-Hainan Holding Co., LLC v.

Yihan Hu, 2020 WL 906719, at *7 (N.D. Cal. Feb. 25,

2020) (“[T]his court . . . does not find in the

legislative history any clear signal that Congress

intended to exclude private arbitral tribunals from

‘foreign and international tribunals.’”); In re Roz

Trading Ltd., 469 F. Supp. 2d 1221, 1227 (N.D. Ga.

2006) (“The Intel court reviewed the legislative

history of § 1782, and found a legislative intent to

broaden the scope of the term ‘tribunal’”).

There also exists a “well-settled doctrine of

this Court to read a statute, assuming that it is

susceptible of either of two opposed interpretations,

in the manner which effectuates rather than

frustrates the major purpose of the legislative

draftsmen.” Shapiro v. United States, 335 U.S. 1, 31

(1948). Congress amended section 1782(a) in 1964 to

expand judicial assistance to proceedings before

“foreign or international tribunal[s],” not to limit

such assistance. See Intel, 542 U.S. at 255 (“[W]e

reject the categorical limitations [petitioner] would

place on the statute’s reach.”). Congress used such

broad language to ensure that courts had ample

discretion to provide section 1782(a) assistance

where needed. Id. at 247, 264 (“[A]s the 1964 Senate

Report suggests, a court presented with a § 1782(a)

request may take into account the nature of the

foreign tribunal [and] the character of the

proceedings underway abroad . . . .”). If the Court

were to exclude commercial arbitral tribunals from

16

the statute’s scope, it would not only frustrate

Congressional intent as manifested by the only

aspect of the legislative history that is clear,6 but

also trample this Court’s prior admonition against

imposing categorical limitations on the statute’s

scope. Id. at 255.7

II.

The Distinction Drawn by Some Courts

between “State Sponsored” Arbitrations

and “Private” Arbitrations is False and,

in any Event, is Irrelevant under

28 U.S.C. § 1782(a)

Some courts have distinguished between socalled “private” arbitral tribunals and “public,”

“governmental,”

or

“state-sponsored”

arbitral

8

tribunals. According to these courts, this distinction

To be sure, the Intel Court’s “caution” of the district

courts that section 1782(a) applications need not be granted

further aligns with the Court’s refusal to impose any

“categorical limitations” on the statute’s scope and affirms the

considerable discretion accorded the district courts to determine

whether particular “tribunals” are of a sufficient nature and

character to be permitted assistance under the statute. See

Intel, 542 U.S. at 247; In re Hallmark Capital Corp., 534 F.

Supp. 2d 951, 956 (D. Minn. 2007) (“[T]he better approach to

this issue is to reject any inflexible rule that would categorically

exclude all private arbitrations from the definition of

‘tribunal’.”).

6

A broad interpretation of section 1782(a) would

certainly be consistent with the “liberal federal policy favoring

arbitration.” Howsam v. Dean Witter Reynolds, 537 U.S. 79, 83

(2002); see also Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1630

(2018); Am. Express Co. v. Italian Colors Rest., 570 U.S. 228,

237-39 (2013).

7

See, e.g., In re Servotronics, Inc., 2019 WL 9698535, at

*4 (N.D. Ill. Apr. 22, 2019) (“state-sponsored arbitral bodies”

might constitute “foreign or international tribunal[s]” under

8

17

is meaningful because “private” arbitral tribunals

“deriv[e] [their] authority not from the government,

but from the parties’ agreement,” whereas so-called

“public” tribunals are created under the authority of

the state.

See Servotronics, 954 F.3d at 213

(ultimately finding this distinction unpersuasive).

This perspective sets up a false distinction and

reflects a fundamental misunderstanding of

international arbitration.

A.

Commercial Arbitration Operates in

Accordance

with

National

and

International Legal Authority

The right to resolve disputes and accord

binding legal authority to such resolutions is

inherently sovereign. This is why courts exist. For

centuries, however, states have recognized the utility

of permitting parties to arbitrate their disputes

outside of the courts and have enacted laws defining

what disputes may be arbitrated, authorizing

judicial assistance to the arbitral process, and giving

legal effect to these quasi-judicial proceedings.

Indeed, virtually every modern jurisdiction that

permits arbitration has enacted one or more of these

laws. Thus, as Professor Smit remarked, “private

Section 1782(a)) (citation omitted) (internal quotation marks

omitted); In re Dubey, 949 F. Supp. 2d 990, 994 (C.D. Cal. 2013)

(distinguishing

between

“purely

private

arbitrations

established by private contract and state-sponsored arbitral

bodies”); In re Arb. between Norfolk S. Corp., Norfolk S. Ry. Co.,

& Gen. Sec. Ins. Co. & Ace Bermuda Ltd., 626 F. Supp. 2d 882,

885 (N.D. Ill. 2009) [hereinafter In re Norfolk S. Corp. Arb.]

(same). But see Servotronics, 954 F.3d at 211 (finding that,

even if this more restrictive definition were applied, it can

nevertheless include private arbitral tribunals).

18

international [arbitral] tribunals . . . have been

accorded by the body politic the power to adjudicate

controversies.” Hans Smit, American Judicial

Assistance to International Arbitral Tribunals, 8 AM.

REV. INT’L ARB., 153, 156 (1997) [hereinafter Smit,

American Judicial Assistance].

See also Luca

Radicati di Brozolo, The Present – Commercial

Arbitration as a Transnational System of Justice:

The Control System of Arbitral Awards: A ProArbitration

Critique

of

Michael

Reisman's

“Architecture

of

International

Commercial

Arbitration, in Albert Jan Van den Berg (ed.),

ARBITRATION: THE NEXT FIFTY YEARS, ICCA

CONGRESS SERIES, Vol. 16 (Kluwer 2012) (“ICCA

Series”), 74-75 (“[a]rbitration cannot exist and

operate as a legal mechanism for the settlement of

disputes, domestic and international, unless it is

tolerated and supported by States”); W. Michael

Reisman & Brian Richardson, The Present –

Commercial Arbitration as a Transnational System

of Justice: Tribunals and Courts: An Interpretation of

the Architecture of International Commercial

Arbitration, in ICCA Series, 17-18, 20 (“Advocates of

arbitration often assume . . . that arbitration is a

free-standing procedure, conceptually and politically

quite independent of the apparatus of the state. But

international commercial arbitration, no less than

arbitration within nation-states, while conducted in

the sphere of private law, is a public legal creation

whose operation and effectiveness is inextricably

linked to prescribed actions by national courts.”;

“states, through their courts, . . . play a role before

the arbitration commences, during the arbitration, or

19

after an award has been rendered.”) (emphasis in

original).9

In the United States, for example, the Federal

Arbitration Act applies to all arbitrations that

involve interstate commerce and each of the 50

states has its own arbitration laws that govern

purely intra-state disputes. See 9 U.S.C. § 2; see e.g.,

N.Y. C.P.L.R. §§ 7501-7515 (McKinney 2018). In

addition, the United States has bound itself to the

international standards set forth in the 1958

Convention on the Recognition and Enforcement of

Foreign Arbitral Awards (the “New York

Convention”), a treaty that obligates contracting

states to recognize and enforce foreign arbitration

agreements and awards.10 It is for these reasons

that, when granting Servotronics’ section 1782

application, the Fourth Circuit recognized that:

[A]rbitration in the United States is a

congressionally endorsed and regulated

process that is judicially supervised. And it

was developed as a favored alternative to the

Respondents’ position that “arbitrations before [socalled “private” arbitral tribunals] are not . . . ‘quasi-judicial’

because they are a mechanism created by private agreement for

parties to resolve their disputes outside of the government’s

adjudicatory processes” and are not “imbued with governmental

authority” or “imbued with judicial powers” clearly

misrepresents the reality of how the commercial arbitration

system operates.

See Brief for Intervenors-Appellees,

Servotronics, Inc. v. Rolls-Royce PLC, No. 1:18-cv-07187 (7th

Cir. July 8, 2019), pp. 15, 32-33 (emphasis in original).

9

The New York Convention is one of the most widely

adopted treaties in the world, with 168 state parties. June 10,

1958, 21 U.S.T. 2517, 330 U.N.T.S. 38, as reprinted in 9 U.S.C.

§ 201.

10

20

judicial process for the resolution of disputes.

Thus, contrary to Boeing’s general assertion

that arbitration is not a product of

‘government-conferred authority,’ under U.S.

law, it clearly is.

Servotronics, 954 F.3d at 213-14.

In the United Kingdom, the legal “seat” of the

arbitration between Servotronics and Rolls-Royce in

this case, commercial arbitrations are authorized

and governed by the Arbitration Act 1996, which

grants authority to arbitral tribunals to resolve

disputes falling within its jurisdiction and legislates

matters covering almost all aspects of the arbitral

proceedings, from their commencement through the

enforcement of arbitration awards.11

Any

commercial arbitration seated in the United

Kingdom, including the one in this case, is conducted

in accordance with the rules and procedures set out

in the Arbitration Act 1996. The same is true of

virtually all arbitrations conducted in juridical

“seats” worldwide.12

In the international context, arbitrations are

governed by both the domestic arbitration laws of the

For example, the Arbitration Act 1996 covers, inter alia,

the enforceability and separability of arbitration agreements

(sections 5-8), the powers of the courts in relation to the conduct

of the arbitration proceedings (sections 42-45), the form,

substance, timing and legal effect of the tribunal’s award(s)

(sections 46-58), and the powers of the courts to enforce or set

aside the tribunal’s award(s) (Section 66-71). Arbitration Act,

1996, c. 23 (UK).

11

12

For a list of national arbitration laws in states that are

parties to the New York Convention, see

https://newyorkconvention1958.org/.

21

countries in which they are seated and the standards

set by the international community through the New

York Convention.

The Convention reflects a

consensus among its 168 contracting states that

foreign arbitration agreements and awards must be

enforced, subject to limited and discretionary

exceptions. Its very purpose was to create universal

standards governing the treatment of arbitration

agreements and awards and to ensure inter-state

consistency.

Through this Convention, the

international community has created—and each

signatory state has accepted—an international legal

regime authorizing, recognizing, and enforcing

commercial arbitrations.

Thus, when commercial parties include an

arbitration agreement in their contracts, they are

electing to resolve disputes within the legal

framework authorized by the juridical “seat” of

arbitration, subjecting themselves to the supervisory

authority of the courts in that “seat”—including the

authority to annul or set aside final arbitral

awards—and accepting that any resulting awards

may be enforced in accordance with the international

standards set by the New York Convention.

B.

Efforts to Distinguish Investor-State

Arbitration

from

Commercial

Arbitration for Purposes of Section

1782(a) Fail

Some courts have held that section 1782(a)

assistance is available to support investor-state

arbitrations because these arbitrations are said to be

“state-sponsored” or “government-sanctioned.” See,

e.g., In re Oxus Gold PLC, 2007 WL 1037387, at *5

22

(D. N.J. Apr. 2, 2007) (finding Section 1782(a)

applicable to an investment treaty arbitration

tribunal because it was “being conducted within a

framework defined by two nations and is governed by

the [UNCITRAL Rules].”).13 These holdings are

wrong and efforts to distinguish between commercial

and investor-state arbitrations are unpersuasive.

Investor-state arbitration is a mechanism by

which states have granted private parties a direct

right of action to bring claims against states in

arbitration for violations of certain defined rights.

Most commonly, these rights are set out in bilateral

or multilateral treaties. In these cases, private

investors are effectively third-party beneficiaries of

the treaties, thus enabling them to directly enforce

these rights against a breaching state. In other

cases, however, the right to initiate an investor-state

arbitration is established by statute or is contained

in a contract between the state and a private party.

In each case, the state defines the scope of disputes

that may be arbitrated, provides the legal framework

for the arbitration, and adopts the post-award

enforcement regime that will be applicable—the

precise framework applicable to commercial

arbitrations.

For

example,

investor-state

The UNCITRAL rules may be used in both commercial

and treaty-based arbitrations and are not materially different

than the arbitration rules promulgated by other arbitral

institutions. Their use, therefore, does not impart upon the

tribunal any special state or international sponsorship. Contra

Ukrnafta v. Carpatsky Petroleum Corp., 2009 WL 2877156, at

*4 (D. Conn. Aug. 27, 2009) (“an arbitration panel governed by

international law, namely, the UNCITRAL rules of arbitration,

constitutes a ‘foreign tribunal’ for the purposes of Section

1782”).

13

23

arbitrations conducted under the auspices of the

International Centre for Settlement of Investment

Disputes (“ICSID”) are subject to an internal, selfcontained review mechanism that precludes courts in

an enforcing state from exercising any discretionary

or review authority. By contrast, investor-state

arbitrations conducted outside of the ICSID system

are subject to enforcement and review under the

New York Convention rules—the same rules

applicable to so-called “private” commercial

arbitrations.

Regardless of whether an investor-state

arbitration is commenced pursuant to treaty, statute,

or contract, it is the product of an agreement

between the state and the private investor. Each

party consents to submit their disputes to arbitration

and any such arbitration is largely indistinguishable

from a commercial arbitration.

Professor Smit

addressed this point:

[Investment treaties] are, in effect, offers to

arbitrate by the state of investment that can

be accepted by, and thus become binding on,

the investor. But, once the investor opts for

arbitration, the situation of the parties is the

same as that under an arbitration agreement

of the same content. There is therefore no

difference of substance between arbitral

proceedings under ordinary arbitration

agreements and those commenced under

bilateral investment treaties that would

justify treating the former differently as far as

Section 1782 is concerned.

Excluding

international arbitral tribunals organized

pursuant to bilateral investment treaties from

24

the reach of Section 1782 would clearly

produce the most untoward result. And if they

are not excluded from its reach, no plausible

argument can be advanced for excluding

international arbitral tribunals not created

pursuant to bilateral investment treaties from

its reach.

Smit, The Supreme Court Rules, at 310.

Moreover,

commercial

arbitrations

and

investor-state

arbitrations

both

share

key

characteristics that make it inappropriate to

differentiate them for purposes of Section 1782(a).

The tribunals in both types of proceedings are formed

by private party appointment of arbitrators. Both

may involve states as parties. Both derive their

authority from national legislation and a form of

international agreement (as discussed above). Both

provide for a final and binding resolution of the

parties’ disputes through the issuance of awards

capable of worldwide enforcement pursuant to treaty.

And each proceeding is the product of a statesanctioned acceptance of arbitration as a valid and

suitable means of resolving disputes.

As such, even if this Court were to find

relevant some role of “state-sponsorship” in the

arbitration to bring it within the ambit of

section 1782(a), arbitrations derived from private

party contract and those from bilateral or multilateral investment treaties would both meet such a

test.

25

III.

The Court’s Functional Determinations

in Intel are Sufficient to Conclude that

All Arbitral Tribunals are Included in the

Phrase

“Foreign

or

International

Tribunal”

Even were the Court not to agree that the

plain language of section 1782(a) encompasses

commercial arbitral tribunals, the Court’s prior

determinations

in

Intel

are

nonetheless

determinative.

In Intel, the Court was asked to decide

whether the Directorate-General for Competition of

the European Commission was a “tribunal” within

the meaning of section 1782(a). Cognizant of the

statute’s history of expanding and liberalizing its

application, the Court declined to impose a

“categorical bar” on the types of tribunals

encompassed by the statute. Intel, 542 U.S. at 246

n.15 (“[i]n light of the variety of foreign proceedings

resistant to ready classification in domestic terms,

Congress left unbounded by categorical rules the

determination whether a matter is proceeding ‘in a

foreign or international tribunal.’”).

Rather, it

focused on the nature of the specific tribunal’s

function.

The Court held that there was “no warrant to

exclude” an entity from section 1782(a)’s ambit to the

extent it “exercises quasi-judicial powers” or “acts as

a first-instance decisionmaker.” Intel, 542 U.S. at

258 (emphasis added) (citing Advanced Micro

Devices, Inc. v. Intel Corp., 292 F.3d 664, 667 (9th

Cir. 2002)) (remarking that “the language used by

Congress in Section 1782 is broad and inclusive” and

“the legislative history surrounding the adoption of

26

Section 1782 broadly [] include[s] ‘bodies of a quasijudicial or administrative nature’ . . . .”) (internal

citation omitted). The Court thus focused on the

tribunal’s ability to bind the parties before it and to

render a decision capable of resolving the underlying

dispute. Id., also at 246-47 (“the Commission is a

§ 1782(a) ‘tribunal’ when it acts as a first instance

decisionmaker”); see also FedEx, 939 F.3d at 725 n.9

(“The Supreme Court seems to have primarily

focused on the decision-making power of the

Commission—and Congress’s substitution in 1964 of

the broad phrase ‘foreign or international tribunal’

for the specific phrase ‘judicial proceeding in a

foreign country’—in reaching its conclusion that the

Commission was a ‘tribunal’”; “the DFIC-LCIA

[arbitration] panel is a ‘first-instance decisionmaker’

with the power to bind the parties—an exercise of

‘quasi-judicial powers’.”) (internal citation omitted);

Fonseca v. Blumenthal, 620 F.2d 322, 323 (2d Cir.

1980) (per curiam) (stating that “impartial

adjudication” is “the hallmark of a tribunal” in the

section 1782 context).

Thus, while the Court did not specifically

address whether private arbitral panels are

“tribunals,” it provided sufficient guidance to

determine that arbitral panels are “tribunals” within

the statute’s scope. See, e.g., FedEx, 939 F.3d at 723

(“Although the Supreme Court has not addressed the

particular question facing us here, its decision in

Intel did address the scope of § 1782(a)’s use of

‘tribunal’ in a different factual context. . . . Intel

determined that § 1782(a) provides for discovery

assistance in non-judicial proceedings.”) (emphasis

added).

27

Arbitral tribunals—including both commercial

and investor-state tribunals—are first-instance

decisionmakers performing a specific adjudicatory

function, equivalent in myriad ways to conventional

courts. They have the legal authority (as discussed

in section II, above) to direct, receive and assess

evidence, issue orders, resolve disputes through

jurisdictional and liability determinations, award

damages, and render awards that are final and

binding on the parties. The final awards of both

investor-state and commercial tribunals are subject

to review for annulment purposes by the courts in

the “seat” of arbitration (except, as explained, for

ICSID cases) and by courts in jurisdictions where

those awards are enforced.

In each case, the

reviewing court can determine whether the arbitral

tribunal had jurisdiction over the parties, acted

outside the scope of its authority, materially

deprived a party of due process, or rendered an

award that offends public policy. Indeed, awards

issued by investor-state arbitrations conducted

outside of the self-contained ICSID regime are

governed by the New York Convention and are

subject to the same level of judicial review as

commercial arbitration awards14—a level of judicial

The scope of such review is defined by international

treaty (e.g., New York Convention), and includes, for example,

whether the “subject matter of the difference is not capable of

settlement by arbitration under the law of that country” or

whether the “award would be contrary to the public policy of

that country.” New York Convention, Articles V(2)(a)-(b).

Further, as mentioned, countries who are signatories to the

New York Convention, including the United States and the

United Kingdom, have enacted implementing legislation

permitting courts to review arbitral awards rendered within

their borders for purposes of set aside or vacatur applications

14

28

review that far exceeds that available to ICSID

awards.15 See, e.g., Mitsubishi, 473 U.S. at 638

(“Having permitted the arbitration to go forward, the

national courts of the United States will have the

opportunity at the award-enforcement stage to

ensure that the legitimate interest in the

enforcement of the antitrust laws has been

addressed.”); Hall St. Assocs. v. Mattel, Inc., 552 U.S.

576, 578, 590 (2008) (“The Federal Arbitration Act . .

. provides for expedited judicial review to confirm,

vacate, or modify arbitration awards”; “[W]e do not

purport to say that [FAA §§ 10 and 11] exclude more

and to assess whether to recognize and enforce said awards

under the same or similar bases. See, e.g., 9 U.S.C. § 10;

Arbitration Act, 1996, c. 23, §§ 67-69 (UK).

While this review is not a de novo reconsideration on

the merits of the arbitral award (including the arbitrators’

determinations of fact and law), there is no basis to conclude

that a full substantive review was either necessary or

warranted by Congress in its liberalization of the statute. See

Consorcio Ecuatoriano v. JAS Forwarding (USA), 685 F.3d 987,

990 (11th Cir. 2012), vacated and superseded 747 F.3d 1262

(11th Cir. 2014) (“[J]udicial review of arbitration awards in

Ecuador, much like a federal court’s review of an arbitration

award, is focused primarily on addressing defects in the

arbitration proceeding, not on providing a second bite at the

substantive apple that would defeat the purpose of electing to

pursue arbitration in the first instance.”). Put simply, that

awards are only reviewable for limited reasons does not

undermine the fact that there exists judicial reviewability of

such awards for purposes of assessing whether a tribunal may

be included within section 1782(a). Id. at 996 (“[W]e can

discern no sound reason to depart from the common sense

understanding that an arbitral award is subject to judicial

review when a court can enforce the award or can upset it on

the basis of defects in the arbitration proceeding or in other

limited circumstances.”).

15

29

searching review based on authority outside the

statute as well . . . .”); FedEx, 939 F.3d at 710 n.11

(“[R]eview of awards under the FAA is considered

‘judicial review.’”) (internal citations omitted). Those

reviews are, moreover, appealable to the Circuit

Courts of Appeal and, potentially, to the Supreme

Court. See, e.g., Hall St., 552 U.S. 576.

In any event, despite the reliance placed by

some courts on the judicial reviewability of a

tribunal’s decision,16 “Intel does not say that a nonjudicial ‘tribunal’ must be subject to judicial review.”

FedEx, 939 F.3d at 710 n.11 (emphasis added).17 In

fact, reviewability was not even discussed in the

section of the Intel decision determining whether the

Commission was a “tribunal.” See Intel, 542 U.S. at

258 (section B).

Critically, the Court in Intel recognized, albeit

in dicta, that “arbitral tribunals” fall within the

meaning of “foreign or international tribunal” for

purposes of section 1782(a). See id. at 258. In

addressing the question of which entities “qualify as

tribunals,” id. at 257-58, the Court quoted

approvingly Professor Smit, whose contemporaneous

written work confirms that an “arbitral tribunal”

constitutes a “tribunal” under the revised statute.

See, e.g., Ex rel Application of Winning (HK) Shipping

Co. Ltd., 2010 WL 1796579, at *8 (S.D. Fla. Apr. 30, 2010); In re

Norfolk S. Corp. Arb., 626 F. Supp. 2d at 886.

16

The issue in Intel was whether the D-G Competition of

the European Commission was a quasi-adjudicative or purely

executive actor, thus necessitating a discussion of whether its

decisions had some form of judicial review. Such functional

wrangling is unnecessary here, as arbitral tribunals are

indisputably adjudicative.

17

30

Id. (quoting Smit, International Litigation under the

United States Code, 65 COLUM. L. REV. 1015, 102627, nn. 71, 73 (1965) (“[t]he term ‘tribunal’ embraces

all bodies exercising adjudicatory powers, and

includes investigating magistrates, administrative

and arbitral tribunals, and quasi-judicial agencies,

as well as conventional civil, commercial, criminal,

and administrative courts”; “The increasing number

and importance of international tribunals make this

liberal provision of assistance in aid of litigation in

international tribunals of great significance. … The

new legislation also authorizes assistance in aid of

international arbitral tribunals.”) (emphasis added)).

It is not surprising that the majority cited Professor

Smit’s section 1782 commentary with approval no

less than six times, given the critical role he played

in its 1964 revision.18

It is in fact difficult to

In fact, the late Professor Smit—whose multiple

commentaries were cited repeatedly by the Intel Court (id. at

248 n.1, 249 n.3, 256-57, 258, 259 (citing Smit’s 1965 article,

from which Intel adopted the definition of “tribunal”); id. at 261,

262 nn.12, 14 (citing a 1994 article by Smit); id. at 262 n.13,

266 n.17 (citing a 1998 article by Smit))—was more than a

leading scholar in his field. He was the Reporter to both the

Advisory Committee to the United States Commission on

International Judicial Assistance and the Commission itself as

well as the Director of the Columbia Law School Project on

International Procedure, which developed the revised

legislation given Congress’s failure to fund either the

Committee or Commission.

Smit, American Judicial

Assistance, at 154. The late Justice Ginsburg, who wrote the

Intel majority decision (and had at one time been an Associate

Director of the Columbia Project (id. at 154)), also confirmed

while sitting as a D.C. Court of Appeals judge that Professor

Smit was “the dominant drafter of, and commentator on, the

1964 revision of 28 U.S.C. § 1782.” In re Letter of Request from

Crown Prosecution Serv., 870 F.2d 686, 689 (D.C. Cir. 1989)

(R.B. Ginsburg, J.); see also In re Euromepa S.A., 51 F.3d 1095,

18

31

imagine what better evidence—outside the statute’s

plain language—one need muster to put this issue to

rest or, for that matter, what “quasi-judicial” body

could meet the definition of “tribunal” in

section 1782(a) if arbitral tribunals (including

commercial arbitral tribunals) are excluded.

CONCLUSION

For the foregoing reasons, FedArb respectfully

suggests that the decision below in the Seventh

Circuit should be reversed and commercial arbitral

tribunals be included within the categories of

“foreign or international tribunal” permitted access

to section 1782(a).

Respectfully submitted,

HENRY S. WEISBURG

Counsel of Record

CHRISTOPHER M. RYAN

JONATHAN J. TOMPKINS

JESSE D.H. SHERRETT

OYINKAN MURAINA

SHEARMAN & STERLING LLP

599 LEXINGTON AVENUE

New York, New York 10022

(212) 848-4000

hweisburg@shearman.com

Counsel for Amicus Curiae

May 12, 2021

1099 (2d Cir. 1995) (recognizing Professor Smit as the “chief

architect of Section 1782”); In re Norfolk S. Corp. Arb., 626 F.

Supp. 2d at 885 n.3.