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







No. 20-794













In the Supreme Court of the United States

BBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB

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 THE INTERNATIONAL

ARBITRATION CENTER IN TOKYO AS

AMICUS CURIAE IN SUPPORT OF

RESPONDENTS

_____________________________________

ROBERT P. PARKER

Counsel of Record

ROTHWELL, FIGG, ERNST & MANBECK, P.C.

607 14TH STREET, N.W.

WASHINGTON, D.C. 20005

(202) 783-6040

rparker@rfem.com

Counsel for Amicus Curiae





TABLE OF CONTENTS

TABLE OF CONTENTS ..................................................... i

TABLE OF AUTHORITIES .............................................. ii

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

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

ARGUMENT........................................................................5

I.

An Applicant for Judicial Assistance

Under § 1782(a) Should Not Have To

Show That The Underlying Proceeding

Is “State-Sponsored” Or “QuasiGovernmental” ........................................... 5

A.

The Seventh Circuit’s Test

Does Not Give Clear

Guidance To Already-Divided

Courts ......................................... 5

B.

The Court Of Appeals’

Approach Would Result In

Application Of § 1782(a) In

Cases Where Interference

With Foreign Sovereign

Interests Is Most Likely ........... 12

II.

Under § 1782(a), An Applicant Must

Show That The Information Sought

Would Be “Used For” The Underlying

Proceeding ................................................ 17

III.

Petitioner Has Not Shown That The

Information It Seeks Is “For Use” In

The Underlying Proceeding ..................... 22

CONCLUSION ..................................................................24



ii

TABLE OF AUTHORITIES

Cases

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

939 F.3d 710 (6th Cir. 2019)................................... 7

Burchell v. March,

58 U.S. 344 (1854) .................................................. 6

Carnival Cruise Lines, Inc. v. Shute,

499 U.S. 585 (1991) ................................................ 9

In re Servotronics, Inc.,

No. 2:18-mc-00364-DCN (D.S.C. Apr. 14, 2021).. 24

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

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

Servotronics, Inc, v. Rolls-Royce PLC,

2021 WL 1221189 (D. Minn. Apr. 1. 2021) .......... 24

Servotronics, Inc. v. Rolls-Royce PLC,

975 F.3d 689 (7th Cir. 2020) .................. 3, 9, 20, 22

Servotronics,Inc. v. Rolls Royce PLC,

No. 19-1847, Dkt. No. 33-2 (7th Cir., filed May

8, 2020) .................................................................. 23

Servotronics. Inc. v. The Boeing Company,

954 F.3d 209 (4th Cir. 2020) .............................. 8, 9

Societe Nationale Industrielle Aerospatiale v.

United States District Court for the Southern



iii

District of Iowa,

482 U.S. 522 (1987) ........................................ 16, 21

Statutes

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

Convention on the Recognition and Enforcement

of Foreign Arbitral Awards,

9 U.S.C. §§ 201-208 ................................................ 6

Federal Arbitration Act of 1925 (“FAA”),

9 U.S.C. §§ 1-16 ................................................ 6, 10

Japanese Arbitration Law (Law No. 238 of 2003) .. 11

Other Authorities

Amended Interim Award,

In the Matter of of an Arbitration Under the

Rules of the Chartered Institute of Arbitrators

Between: Rolls Royce PLC and Servotronics,

Inc. (May 7, 2020) ........................................... 29, 30

Angeline Walsh,

Arbitration Guide to England and Wales (IBA

Arb. Comm., Jan. 2018) ........................................ 13

Charted Institute of Arbiters (“CIArb”) in the

United Kingdom ....................................... 28, 29, 30

Diego Zambrano, A Comity of Errors: The Rise,

Fall, and Return of International Comity in

Transnational Discovery,

34 BERKELEY J. OF INT’L LAW 157 (2016) ............. 19



iv

Earl S. Wolaver, The Historical Background of

Commercial Arbitration,

83 U. PA. L. REV. 132 (1934) ................................... 6

Hiroyuki Tezuka and Yutaro Kawabata,

Arbitration Guide to Japan (IBA Arb. Comm.,

Jan. 2018) ............................................................. 12

John H. Langbein,

The German Advantage in Civil Procedure, 52

U. Chi. L. Rev. 823 (1985) ................................... 18

Kevin Kim,

Arbitration Guide to South Korea (IBA Arb.

Comm., Sept. 2012), available at

https://www.ibanet.org/LPD/Dispute_Resolutio

n_Section/Arbitration/Arbcountryguides#arbitr

ationguides (last visited June 9, 2021) ................ 13

Lauren Ann Ross,

A Comparative Critique to U.S. Courts’

Approach to E-Discovery in Foreign Trials, 11

Duke L. & Tech. Rev. 313 (2012) ......................... 18

Oscar G. Chase,

LAW, CULTURE, AND RITUAL: DISPUTING

PROCESSES IN CROSS-CULTURAL CONTEXT 65

(2005) .................................................................... 20

Oscar G. Chase, et al.,

CIVIL LITIGATION IN COMPARATIVE CONTEXT 350

(2d ed. 2017).......................................................... 20



v

Peter Thorp and Huawei Sun,

Arbitration Guide to China (IBA Arb. Comm.,

June 2018) ............................................................ 13

Richard Kreindler, et al.,

Arbitration Guide to Germany (IBA Arb.

Comm., Feb. 2018) ................................................ 13

Roger Haydock & Jennifer Henderson,

Arbitration and American Civil Justice: An

American Historical Review and a Proposal for

Private/Arbitral and Public/Judicial

Partnership, 2 PEPP. DISP. RES. L. J., ISS. 2

(2002) ...................................................................... 6

Sumeet Kachwaha,

Arbitration Guide to India (IBA Arb. Comm.,

Dec. 2019) ............................................................ 13

UNCITRAL MODEL LAW ON INTERNATIONAL

COMMERCIAL ARBITRATION 1985,

WITH AMENDMENTS ADOPTED IN 2006 (Vienna

2008), available at .......................................... 14, 15



INTEREST OF THE AMICUS CURIAE1

International Arbitration Center in Tokyo

(“IACT”) was organized in 2018 under the auspices of

the Japanese Patent Office. IACT provides a forum

for the arbitration and mediation of international

disputes at the intersection of commerce and

technology. IACT’s leadership includes former judges

from the United States, China, Japan, Korea, Europe,

Australia, and South America. The retired U.S.

judges involved in IACT include former circuit,

district, and administrative law judges.

See

https://www.iactokyo.com/ (last visited June 21,

2021).

IACT differs from other arbitration forums in at

least three respects. First, because IACT’s

substantive focus is at the intersection of commerce

and technology, it offers particular expertise in

associated legal areas, such as intellectual property

and the contractual aspects of research, development,

trade, and innovation. Second, IACT offers parties

the opportunity to have their disputes considered by

former judges and government officials from across

the globe. Third, IACT seeks to promote consistency

of outcomes across different legal regimes by

promoting a cross-cultural approach to dispute

resolution. In this regard, for example, Article 40 of

IACT’s arbitration rules provides for substantive



All parties have consented to the filing of this brief. Pursuant

to Rule 37.6, counsel for amicus curiae authored this brief. No

counsel for a party in this case authored this brief in whole or in

part. No one other than amicus curiae or its counsel contributed

monetarily to the preparation and submission of this brief.





2

review of an arbitration award by a supervisory panel

comprising one arbitrator from each of the U.S.,

Europe, China, Japan, and Korea.

IACT has a particular interest in promoting

respect and cooperation between national judicial

tribunals and international arbitration organizations.

The fact that IATC’s leadership includes former

judges from countries with a variety of legal systems

and traditions gives IACT a global perspective on

transnational dispute resolution issues.

This

includes issues relating to discovery, and particularly

judicial assistance in aid of foreign proceedings.

IACT offers its practical insights and perspectives

to the Court with respect to the proper application of

28 U.S.C. § 1782(a), the United States statute

directed to the provision of judicial assistance to “a

foreign or international tribunal.” For reasons stated

below, IACT submits that the Court of Appeals’

decision excluding private international arbitrations

from the scope of § 1782(a) was incorrect, but the

decision should be affirmed on the alternative ground

that the Petitioner did not demonstrate that the

requested discovery is “for use” in the foreign

proceeding.

SUMMARY OF ARGUMENT

1. The Court of Appeals concluded that a private

arbitration tribunal is not a “foreign or international

tribunal” within the meaning of § 1782(a) based on

the purported distinction between a “state-sponsored,



3

public, or quasi-governmental tribunal,” and a

tribunal whose “adjudicative authority” rests on “a

party’s contract, not a governmental grant of power.”

Servotronics, Inc. v. Rolls-Royce PLC, 975 F.3d 689,

692 n.2, 696 (7th Cir. 2020). The proposed distinction

between tribunals operating under “state-sponsored”

or “quasi-governmental” auspices on the one hand,

and tribunals whose authority is “contractual” on the

other, merely raises a new question as to how the

term “tribunal” should be construed. That is, instead

of asking whether a proceeding is conducted by a

“tribunal,” district courts will have to inquire into the

basis of the tribunal’s authority – an issue that is

neither easily resolved nor directly relevant to the

application of § 1782(a).

Most dispute resolution proceedings do not fall

into neat “quasi-governmental” or “contractual”

categories.

Although virtually every arbitration

proceeding is based on an agreement to arbitrate,

most arbitrations are also “state-sponsored”: they are

conducted pursuant to statutes that provide for the

enforceability of arbitration agreements, for judicial

assistance in the initiation of an arbitration and the

collection of evidence, and for judicial enforcement of

arbitral awards. In this important respect, the Court

of Appeals’ decision fails to account for the

intersection of public and private roles in most

dispute resolution processes, and the important role

that the judiciaries in many countries play in

arbitration proceedings.



4

Moreover, the idea that proceedings can be

categorized as “quasi-governmental” on the one hand,

and “contractual” on the other, does not account for

the wide variety of judicial, administrative, and

arbitral procedures used around the world, and to the

roles both public officials and private parties play in

those processes. To the extent that arbitrations are

more “contractual” than other proceedings because

they leave more room for private choice, that simply

places arbitration at one end of a spectrum ranging

from private arbitration, through a variety of

administrative or quasi-judicial proceedings, to fullfledged adjudication in a national court – all

conducted pursuant to rules grounded in national

policy, history, and tradition. The Court of Appeals’

test, in fact, would result in the application of §

1782(a) in cases in which the foreign government’s

involvement and interest in a proceeding, and the

prospects for interference with the foreign

government’s “judicial sovereignty” is at its highest.

2. This does not mean that § 1782(a) is without

limits. The text of § 1782(a) offers another approach

that is more consistent with the statute’s text and

purpose. The statute provides that the information

sought must be “for use in a proceeding in a foreign or

international tribunal” [emphasis added]. That is,

the statute authorizes assistance to an international

tribunal only if the information sought can or could be

used in the underlying case. The statute should be

applied, and the application for judicial assistance

granted, only if the applicant demonstrates that the



5

introduction of the evidence sought would be

consistent with the tribunal’s rules and procedures.

3. The record in this case raises questions as to

whether Petitioner has or could make the required

showing that the material it seeks is “for use” in the

underlying proceeding. The rules applied in the

underlying proceeding grant discretion to the

arbitration panel to decide on the scope of discovery

and the admissibility of evidence. The record in the

Seventh Circuit indicates that the tribunal has

ordered the discovery it deems appropriate. The

Seventh Circuit’s decision should be affirmed on that

ground.

ARGUMENT

,

An Applicant for Judicial Assistance

Under § 1782(a) Should Not Have To Show

That The Underlying Proceeding Is

“State-Sponsored”

Or

“QuasiGovernmental”

A. The Seventh Circuit’s Test Does Not

Give Clear Guidance To AlreadyDivided Courts

Arbitration has been recognized as a method of

dispute resolution for thousands of years. Homer

describes an arbitration-like proceeding in the Iliad

(Book 18, ll. 496-508). Legal historians explain that

private arbitration was known to ancient Romans as

well as ancient Greeks. Earl S. Wolaver, The



6

Historical Background of Commercial Arbitration, 83

U. PA. L. REV. 132, 132 (1934). The arbitration of

commercial disputes had a long history in England

long before the American Revolution. Id. at 144-45.

Following England’s lead, arbitration was wellestablished in colonial America. Roger Haydock &

Jennifer Henderson, Arbitration and American Civil

Justice: An American Historical Review and a

Proposal for Private/Arbitral and Public/Judicial

Partnership, 2 PEPP. DISP. RES. L. J., ISS. 2 at 144

(2002). In 1854, this Court upheld judicial recognition

of an arbitral award, concluding that “[a]rbitrators

are judges chosen by the parties to decide the matters

submitted to them. . . . If the award is within the

submission, and contains the honest decision of the

arbitrators, after a full and fair hearing of the parties,

a court of equity will not set it aside for error, either

in law or fact.” Burchell v. March, 58 U.S. 344, 34950 (1854).

Given this experience, and the increasing

importance of arbitration as a dispute-resolution tool

in the United States, Congress incorporated the

Burchell principles into Chapter 1 of the Federal

Arbitration Act of 1925 (“FAA”), codified at 9 U.S.C.

§§ 1-16. Additionally, the United States acceded to the

Convention on the Recognition and Enforcement of

Foreign Arbitral Awards of June 10, 1958 and codified

the terms of the treat Chapter 2 (9 U.S.C. §§ 201-208).

Congress thus established a national policy in favor of

arbitration, and authorized federal courts (as

necessary) to enforce arbitration agreements, assist



7

in the development of a record, and enforce

arbitration awards. The FAA and NY Convention do

not distinguish among different arbitration rules, or

limit the parties’ discretion to frame the manner in

which their dispute will be resolved.

Congress’

1964

enactment

of

§ 1782(a),

authorizing courts to provide judicial assistance to

“foreign or international tribunals,” should be read in

this historical context. Given the long tradition of

support for alternatives to judicial proceedings in

private disputes, and the then 40-year-old statute

governing arbitration proceedings in particular,

Congress presumably was aware that the statutory

phrase “foreign or international tribunal” would be

read to include arbitration tribunals. Nonetheless,

the Courts of Appeals have divided over whether

§ 1782(a) should be read to allow judicial assistance

to foreign arbitration proceedings.

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

939 F.3d 710 (6th Cir. 2019), the Sixth Circuit

discussed the state of play even before the Seventh

Circuit’s decision in this case: “[T]he Second and Fifth

Circuits, respectively, determined that the word

‘tribunal’ in § 1782(a) does not clearly exclude private

arbitrations but that the scope of the word is

ambiguous. [Citations omitted.] . . . [H]owever, courts’

longstanding usage of the word shows not only that

one permissible meaning of ‘tribunal’ includes private

arbitrations but also that that meaning is the best

reading of the word in this context.” Id. at 726-27.



8

The Seventh Circuit’s approach follows that of the

Second and Fifth Circuits. It concluded that § 1782(a)

applies to “state-sponsored” or “quasi-governmental”

proceedings, but not “contractual” proceedings like

private arbitration. In addition to the points raised

by the Sixth Circuit in Abdul Latif, the Seventh

Circuit’s test does not resolve the issue. Rather, the

Seventh Circuit’s approach restates the issue in new

terms. That is, asking whether the phrase “foreign or

international tribunal” refers only to “a statesponsored, public, or quasi-governmental tribunal,”

975 F.3d at 696, but not to a tribunal whose authority

“is found in the parties’ contract . . . not a

governmental grant of power,” id. at 693 n.2, raises a

new question that district courts will have to answer.

In other words, the Seventh Circuit’s approach merely

shifts the focus of the question from the definition of

a “tribunal” to whether the “tribunal” falls within one

category or another.

As the record of the arbitration between petitioner

and respondents in this case shows, shifting the focus

of the question does not answer it. In Servotronics.

Inc. v. The Boeing Company, 954 F.3d 209 (4th Cir.

2020), the Fourth Circuit held that the parties’

private arbitration was a state-sponsored proceeding

in light of the FAA and public policy:

In short, arbitration 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

judicial process for the resolution of disputes.



9

Thus, contrary to Boeing’s general assertion

that arbitration is not a product of

"government-conferred authority," under U.S.

law, it clearly is.

Id. at 214. The Seventh Circuit considered the Fourth

Circuit’s position, and rejected it: “This view strikes

us as mistaken. Contractual arbitration is a private

dispute resolution. . . . A private arbitral body does

not exercise governmental or quasi-governmental

authority.” 975 F.3d at 693 & n.2.

The Seventh Circuit’s test fares no better in other

contexts.

For example, judicial proceedings in

national courts may have a contractual basis. Private

parties have substantial leeway to designate a

dispute resolution forum in their contracts. They may

agree to a forum selection clause calling for resolution

of disputes in one of the party’s national courts, or in

a particular venue. Carnival Cruise Lines, Inc. v.

Shute, 499 U.S. 585 (1991) (upholding the forumselection clause in a cruise-line ticket). The parties

may opt for judicial resolution of a dispute for various

commercial and practical reasons, id., at 593-94, and

even more so in contracts involving international

matters between parties of different nationalities.

Alternatively, contracting parties (especially in

international agreements) may opt to arbitrate their

disputes so as to avoid national courts entirely. They

may do so to ensure confidentiality, avoid the

application of the substantive or procedural rules of a

particular jurisdiction, to ensure that the decision-



10

maker has particular expertise, to allow for a

multinational panel, for reasons related to the speed

or cost of the proceedings, or for a host of other

reasons.

Nothing in the contracting parties’

agreement to resolve their disputes in this way has

any direct bearing on the scope of § 1782(a). More

importantly for present purposes, it is not clear

whether or why an agreement to resolve a dispute in

a specified jurisdiction or venue would fall within the

scope of the statute, but an agreement to arbitrate

would not.

Moreover, the Fourth Circuit’s conclusion that

arbitrations are “state-sponsored” proceedings was

correct. In the United States, the FAA confirms the

enforceability of arbitration agreements as a matter

of public policy (9 U.S.C. § 2). It also authorizes

district courts to enforce arbitration agreements (§ 4),

to enforce an arbitration tribunal’s discovery orders (§

7), and to enforce or vacate an arbitration award (§§

9, 10). Contracting parties thus opt for “private

arbitration” under an umbrella of state policy, and

with judicial assistance provided for in the initiation,

conduct, and resolution of their dispute. As the

Fourth Circuit pointed out, to say that arbitrations

are not “state-sponsored” or “quasi-governmental” for

purposes of § 1782(a) ignores this context.

Countries representing a large majority of the

world’s population and global commercial trade have

also adopted statutes that provide for judicial

involvement at various points in the arbitration

process. The International Bar Association’s survey



11

of national arbitration laws confirms that private

arbitrations in China, India, Germany, Japan,

England, and South Korea are conducted under the

backdrop of national statutes that provide for judicial

intervention and assistance at various phases in in

arbitration proceedings.2

Taking one example, private arbitrations in Japan

are conducted under the Japanese Arbitration Law

(Law No. 238 of 2003), which is based on the model

arbitration law adopted by the United Nations

Commission

on

International

Trade

Law’s

(“UNCITRAL”) model arbitration statute.3

The

UNCITRAL model law provides (among other things):

for the enforcement of arbitration agreements (id.,



See Hiroyuki Tezuka and Yutaro Kawabata, Arbitration Guide



to Japan (IBA Arb. Comm., Jan. 2018); Peter Thorp and Huawei

Sun, Arbitration Guide to China (IBA Arb. Comm., June 2018);

Richard Kreindler, et al., Arbitration Guide to Germany (IBA

Arb. Comm., Feb. 2018); Angeline Walsh, Arbitration Guide to

England and Wales (IBA Arb. Comm., Jan. 2018); Sumeet

Kachwaha, Arbitration Guide to India (IBA Arb. Comm., Dec.

2019); Kevin Kim, Arbitration Guide to South Korea (IBA Arb.

Comm., Sept. 2012), available at

https://www.ibanet.org/LPD/Dispute_Resolution_Section/Arbitr

ation/Arbcountryguides#arbitrationguides (last visited June 9,

2021).

3UNCITRAL

MODEL LAW ON INTERNATIONAL COMMERCIAL

ARBITRATION 1985, WITH AMENDMENTS ADOPTED IN 2006 (Vienna

2008), available at

https://uncitral.un.org/sites/uncitral.un.org/files/mediadocuments/uncitral/en/19-09955_e_ebook.pdf (last visited June

9, 2021).



12

Art. 8), for the adoption or enforcement of interim

arbitration awards (id., Arts. 17 I, 17 J), for assistance

in taking evidence (id., Art. 27), for the setting aside

of an award in limited circumstances (id., Art. 34),

and for enforcement of an award (id.¸Art. 36).

Although national arbitration laws may vary from

country to country, that is the point: to say that

arbitration is a matter of “contract” and not “statesponsored” or “quasi-governmental” separates the

process from a national legal context that varies from

country to country. What can be said is that the

UNCITRAL model law, and the national arbitration

laws based on the UNCITRAL approach or otherwise,

reflect a strong global policy to support arbitration

and for judicial involvement in the arbitration

process.

As the Fourth and Seventh Circuit’s

different decisions regarding petitioner’s requests for

judicial assistance illustrate, the effort to sort dispute

resolution processes into different categories based on

a “state-sponsored” or ”quasi-governmental” versus

“contractual” will not resolve the scope of the statute,

but instead will raise new questions about which label

applies.

B. The Court Of Appeals’ Approach

Would Result In Application Of

§ 1782(a) In Cases Where Interference

With Foreign Sovereign Interests Is

Most Likely

The Seventh’s Circuit’s decision calls for judicial

assistance in “state-sponsored” proceedings, but not



13

proceedings based on a private contract. The Court of

Appeals’ approach would thus have U.S. courts

become involved in those cases where they are most

likely to interfere with another country’s sovereign

interests. The question this raises is why Congress

would pass a statute that allows for assistance in

cases involving proceedings conducted under the

auspices of a foreign government, but not in cases in

which private parties engaged in an alternative

approach. That is, why would Congress authorize

assistance only in cases in which a foreign

government’s interest or involvement in the process is

at its highest?

This Court’s decision in Intel Corp. v. Advanced

Micro Devices, Inc., 542 U.S. 241 (2004), suggests that

§ 1782(a) should be given a broad scope. All of the

Justices recognized that § 1782(a) should be

construed by reference to the variety of adjudicative

procedures around the world. Justice Breyer’s dissent

highlighted the “wide variety of nonprosecutorial,

nonadjudicative bodies” to which the statute would

apply. Id. at 268 (Breyer, J. dissenting). The majority

responded by acknowledging that “a foreign

proceeding may have no direct analogue in

[America’s] legal system,” and many “foreign

proceedings [are] resistant to ready classification in

domestic terms.” Id. at 263 n.15. Citing the statute’s

broad and discretionary language, the majority, too,

raised concerns about categorical restrictions on the

statute’s scope. Id. at 255.



14

The Seventh Circuit’s approach flies in the face of

this caution.

Moreover, the Seventh Circuit’s approach has the

potential to inject U.S. district courts into foreign

proceedings conducted under rules where their

involvement is least appropriate. For example,

national courts in Europe, Japan, and elsewhere

follow a “civil law” approach to adjudication. Civillaw courts do not use pre-trial discovery in the

American sense. Unlike plaintiffs in U.S. courts,

claimants in civil-law courts present detailed and

documented claims to the court, and then the judge or

magistrate directs the further compilation and

evaluation of an evidentiary record. Lauren Ann

Ross, A Comparative Critique to U.S. Courts’

Approach to E-Discovery in Foreign Trials, 11 Duke

L. & Tech. Rev. 313, 318-19 (2012); John H. Langbein,

The German Advantage in Civil Procedure, 52 U. Chi.

L. Rev. 823, 827 (1985) (in civil law jurisdictions,

“Digging for facts is primarily the work of the judge.”)

One scholar summarized the difference between

American practice and civil law proceedings as

follows:

The contrast between U.S. and foreign

discovery practices is stark. As explained

above, American courts have long been

comfortable exercising their broad discovery

and jurisdictional powers over parties

wherever located. Discovery in civil law

countries is drastically different from U.S.



15

methods. Because the inquisitorial system

predominates in civil law countries, it is judges,

not the parties themselves, who have the

exclusive power to gather facts. After compiling

evidence, civil law judges produce an official

summary, or dossier, that is used at trial.

Diego Zambrano, A Comity of Errors: The Rise, Fall,

and Return of International Comity in Transnational

Discovery, 34 BERKELEY J. OF INT’L LAW 157, 167-68

(2016) (footnotes omitted).

The civil-law approach to the compilation of an

evidentiary record is not merely a difference in style.

Rather, international lawyers refer to it as an act of

“judicial sovereignty.” Id. at 172 (quoting Report of

the United States Delegation to the Eleventh Session

of the Hague Conference on Private International

Law, 8 I.L.M. 785, 787 (1979)). Scholars point out

that the respective roles of judges and lawyers in

different countries stem from cultural and historical

traditions relating to factors like “the trust in

individual self help rather than the State as a

provider of legal protection” and “different

conceptions of the relationships among private

individuals and between individuals and public

authority.” Oscar G. Chase, LAW, CULTURE, AND

RITUAL: DISPUTING PROCESSES IN CROSS-CULTURAL

CONTEXT 62 (2005), excerpted in Oscar G. Chase, et

al., CIVIL LITIGATION IN COMPARATIVE CONTEXT 350,

352-3 (2d ed. 2017).



16

This Court has recognized the differences in

national approaches to discovery, as well as the

principle of “judicial sovereignty” over “evidencegathering.”

Societe

Nationale

Industrielle

Aerospatiale v. United States District Court for the

Southern District of Iowa, 482 U.S. 522, 543 (1987).

In Societe Nationale, the Court highlighted the

importance of local control over judicial proceedings,

at least in American courts:

It is well known that the scope of American

discovery is often significantly broader than is

permitted in other jurisdictions, and we are

satisfied that foreign tribunals will recognize

that the final decision on the evidence to be

used in litigation conducted in American courts

must be made by those courts.

Id. at 542.

The Seventh Circuit’s approach to § 1782(a),

however, would result in U.S. district courts’ granting

applications for judicial assistance only in “statesponsored” or “quasi-governmental” cases in which

the compilation of an evidentiary record is subject to

the most extensive judicial or administrative control,

but foreclose assistance where the proceeding has the

strongest “private” element. The outcome of the

Court of Appeals’ approach, therefore, would be to

have the U.S. courts provide judicial assistance only

in proceedings where the U.S. courts’ intrusions on

foreign “judicial sovereignty” interests are most

likely. Conversely, by taking the view that § 1782(a)



17

does not apply to arbitration proceedings because

they are not “state-sponsored,” the Seventh Circuit

forecloses judicial assistance in cases in which a

foreign government is (by the Seventh Circuit’s

approach) least interested.

***

Given the wide variety of proceedings to which

§ 1782(a) applies, and the fact that many foreign

proceedings may have no analogue in American

practice, any approach that limits the scope the

statute by reference to the type of proceeding at issue

is likely to raise more problems than it solves. The

Court of Appeals’ exclusion of disputes based on a

private contract, with a focus on “governmental” or

“quasi-governmental” proceedings highlights this

concern. Under that approach, § 1782(a) would apply

only in cases in which a foreign government’s role or

interest is manifest.

The statute provides no

indication that Congress intended that result, or any

reason for this Court to adopt it.

,,

Under § 1782(a), An Applicant Must Show

That The Information Sought Would Be

“Used For” The Underlying Proceeding

Although § 1782(a) does not readily yield to the

categorization of “foreign or international tribunals,”

that does not mean that the grant of judicial

assistance should be automatic.

The statute’s

limiting factor is the requirement that the materials

sought be “for use in a proceeding.” The statute



18

therefore requires that the applicant in the district

court make a reasonable demonstration that the

evidence would be used in the underlying proceeding.

This approach is consistent with this Court’s

recognition in Intel that § 1782(a)’s “for use” term is

the initial hurdle the petitioner has to overcome. Intel

involved a § 1782(a) application by the complainant in

a proceeding before the European Commission’s

competition authority (“DG-Competition”). The Court

explained that DG-Competition initiates proceedings

on the basis of a complaint or sua sponte, and that DGCompetition is open to the receipt of information from

the complainant during its investigative phase. Intel,

542 U.S. at 254. DG-Competition prepares a written

decision, which is subject to review in European

courts. Id. In these circumstances, the Intel Court

noted that the applicant could submit the information

to DG-Competition at the investigative stage, and

the record would be available not only at the

investigative stage but at subsequent appellate

review. Id. at 256-57. In these circumstances, the

Court concluded that the applicant had satisfied the

“for use” requirement. Id. at 257 (“Hence, AMD could

‘use’ evidence in the reviewing courts only by

submitting it to the Commission in the current,

investigative stage.”).

The Court in Intel also instructed district courts

considering judicial assistance applications to

consider “the receptivity of the foreign government or

the court or agency abroad to U.S. federal-court

judicial assistance” and “whether the § 1782(a)



19

request conceals an attempt to circumvent foreign

proof gathering restrictions or other policies of a

foreign country or the United States.” Id. at 264-65.

Although the Court declined “at this juncture, to

adopt supervisory rules” pending “further experience

with § 1782(a) applications in the lower courts,” id. at

265, the further experience with the application of

§ 1782(a) suggests that this threshold requirement –

rather than the definition of “tribunal” – is the

relevant threshold question that the district courts

must address.4

First, the “for use” requirement is easily applied.

Resolution of applications submitted by, or with the

concurrence of, the foreign tribunal itself would be

simple. If the application is by an “interested person,”

then applicant could show at least a substantial

prospect that the information sought would lead to

evidence admissible in the foreign or international

tribunal. The applicant could refer to the arbitration

agreement, the applicable rules of the tribunal

regarding its role in the collection of evidence, the

rules regarding the scope of allowable discovery (if



 The Court in Intel held that the decision on a § 1782(a)



application should not turn on whether the information would

be discoverable under the tribunal’s local rules, but the Court

also noted that this is a different question from whether the

tribunal’s rules would allow for the “use” of information collected

in the United States. 542 U.S. at 261-62 (“[T]here is no reason

to assume that because a country has not adopted a particular

discovery procedure, it would take offense at its use.") (citation

omitted).







20

any), the record of the proceedings in the particular

case, and similar information from which the district

court could make an informed decision.5

Second, treating the “for use” language as a

threshold issue in a § 1782(a) application would

resolve concerns raised by the Seventh Circuit and

other courts regarding a potential inconsistency

between § 1782(a) and the FAA. As the Seventh

Circuit noted, § 1782(a) allows for an application by

“any interested person,” but the FAA requires that a

request for judicial assistance come from the tribunal.

975 F.3d at 695-96. That discrepancy has nothing to

do with whether an arbitration is conducted by a

tribunal – but it is relevant to whether the evidence

is “for use” in the underlying proceeding. Just as the

district court would look to the FAA’s provisions to

determine whether assistance should be granted in a

domestic arbitration, the district courts should

consider the applicable statutes and rules governing

the foreign tribunal to determine whether the

materials sought would be “for use” in that

proceeding.



 The Court also pointed out that the application of § 1782(a)

should not require a “comparative analysis to determine

whether analogous proceedings exist here.” Id. at 263. The

question of whether the information sought is “for use” in a

foreign or international tribunal, however, does not require a

comparative analysis of proceedings. For example, it might be

accomplished by a review of the rules under which the

proceeding is conducted, and the record of the proceeding itself.

21

Third, requiring a “for use” demonstration would

also resolve concerns regarding comity and respect for

foreign sovereign interests. The Court explained the

concern in Societe National:

In addition, we have long recognized the

demands of comity in suits involving foreign

states, either as parties or as sovereigns with a

coordinate

interest

in

the

litigation.

See [Hilton v. Guyot, 159 U.S. 113 (1895)].

American courts should therefore take care to

demonstrate due respect for any special

problem confronted by the foreign litigant on

account of its nationality or the location of its

operations, and for any sovereign interest

expressed by a foreign state.

482 U.S. at 546. The Court in Intel explained that an

application for judicial assistance under § 1782(a)

raises the same concerns. 542 U.S. at 261 (noting that

“comity and parity concerns may be important as

touchstones for a district court's exercise of discretion

in particular cases”). See also, id. at 266 (“Nor do we

know whether the European Commission's views on §

1782(a)'s utility are widely shared in the

international community by entities with similarly

blended adjudicative and prosecutorial functions.”).

By considering whether the information sought in

the § 1782(a) application is “for use” in the underlying

proceedings, the district court would approach the

matter sensitive to the concerns raised by the Courts

22

of Appeals that have tried to limit the statute in other

ways. The district courts would consider and apply

the applicable rules, review the scope and record of

the proceedings, and determine whether the

applicant has made a reasonable showing that the

information is “for use” in the relevant proceeding.

,,,

Petitioner Has Not Shown That The

Information It Seeks Is “For Use” In The

Underlying Proceeding

The record in this case shows that petitioner has

not made a “for use” demonstration. Petitioner and

respondents are involved in an arbitration under the

auspices of the Charted Institute of Arbiters (“CIArb”)

in the United Kingdom. Servotronics, 975 F.3d 691.

CIArb rules provide the arbitration panel with

discretion over the discovery of evidence and the

compilation of a record. Specifically, Article 27 of the

CIArb rules provides:

Article 27 – Evidence

***

3. At any time during the arbitral proceedings

the arbitral tribunal may require the parties to

produce documents, exhibits or other evidence

within such time period as the arbitral tribunal

shall determine.

23

4. The arbitral tribunal shall determine the

admissibility, materiality and weight of the

evidence offered.

CIArb Rules at 21 (1 December 2015), available at

https://www.ciarb.org/media/2729/ciarb-arbitrationrules.pdf (last visited June 21, 2021). Appendix II of

the rules further provides for the consideration of

discovery issues at an early management conference,

including matters relating to the production of

documents. Id. at 47.

The record in the Court of Appeals shows that, in

the underlying dispute, both Petitioner and

Respondent Rolls Royce submitted requests for

discovery from the other party. The Tribunal ruled

on these requests, and ordered the production of

documents, addressing both the burden and relevance

of the materials sought. Amended Interim Award, In

the Matter of an Arbitration Under the Rules of the

Chartered Institute of Arbitrators Between: Rolls

Royce PLC and Servotronics, Inc. (May 7, 2020).6 In

addition, the Tribunal addressed the question of

“custody and control,” and ordered that Rolls Royce

“in the first instance” to “demand copies of any

documents” from Boeing. Id., ¶ 10. In sum, the

Tribunal addressed the discovery requests, and

allowed, denied, or limited the requests based on the

The Amended Interim Award was filed in the Seventh Circuit.

See Servotronics,Inc. v. Rolls Royce PLC, No. 19-1847, Dkt. No.

33-2 (7th Cir., filed May 8, 2020).



24

Tribunal’s

rules

considerations.

and

other

appropriate

At least two district courts that have addressed

the issue since the Seventh Circuit’s decision have

ruled that, in these circumstances, the CIArb

Tribunal “has the last word” on the conduct of its

proceedings, including whether the arbitration should

go forward without the discovery that petitioner seeks

in the United States. In re Servotronics, Inc., No.

2:18-mc-00364-DCN at *8 (D.S.C. Apr. 14, 2021);

Servotronics, Inc., v. Rolls-Royce PLC, 2021 WL

1221189 at *3 (D. Minn. Apr. 1, 2021). To the extent

that the Tribunal has ruled that the discovery

petitioner

seeks

would

be

inadmissible,

inappropriate, or not otherwise consistent with the

Tribunal’s rules or orders, then the Tribunal’s

decisions should be binding.

Insofar as the Tribunal’s rules and decisions

preclude the “use” of the information petitioner seeks,

then § 1782(a) does not authorize the district court to

grant the petitioner’s application, and the decision of

the district court and the Seventh Circuit should be

affirmed on that ground.

CONCLUSION

The decision of the Court of Appeals should be

affirmed.

Respectfully submitted,

25

ROBERT P. PARKER

Counsel of Record

ROTHWELL, FIGG, ERNST &

MANBECK, P.C.

607 14TH STREET, N.W.

WASHINGTON, D.C. 20005

(202) 783-6040

rparker@rfem.com

Counsel for Amicus Curiae

June 25, 2021