Amicus Curiae Brief — ZF Automotive US, Inc., et al., Petitioners v. Luxshare, Ltd.
Supreme Court briefMar 1, 2022
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No. 21-401
IN THE
Supreme Court of the United States
————
ZF AUTOMOTIVE US, INC., ET AL.,
Petitioners,
v.
LUXSHARE, LTD.,
Respondent.
————
On Writ of Certiorari
to the United States Court of Appeals
for the Sixth Circuit
————
BRIEF OF PROFESSORS TAMAR MESHEL,
CRINA BALTAG, FABIEN GÉLINAS, AND JANET
WALKER AS AMICI CURIAE IN SUPPORT OF
RESPONDENT LUXSHARE, LTD.
————
ROBERT K. KRY
MOLOLAMKEN LLP
The Watergate, Suite 500
600 New Hampshire Ave., N.W.
Washington, D.C. 20037
(202) 556-2000
LISA W. BOHL
Counsel of Record
MOLOLAMKEN LLP
300 N. LaSalle St., Suite 5350
Chicago, IL 60654
(312) 450-6700
lbohl@mololamken.com
Counsel for Amici Curiae
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
TABLE OF CONTENTS
Interest of Amici Curiae ............................................
Summary of Argument ...............................................
Argument ......................................................................
I.
Comity Supports Applying § 1782 to
Foreign-Seated International
Commercial Arbitrations ...............................
A. Comity Encourages Consistency
and Judicial Cooperation in the
International Commercial
Arbitration Context .................................
B. Courts Should Apply Similar
Comity Principles in Interpreting
§ 1782, Which Was Designed To
Facilitate International Judicial
Cooperation...............................................
C. Judicial Assistance in Gathering
Evidence for Use by ForeignSeated International Commercial
Arbitral Tribunals Is Common in
the International System ........................
II. Section 1782 Supports the Goals of
International Commercial Arbitration .........
A. Section 1782 Does Not Undermine
Efficiency or Party Autonomy ...............
B. Section 1782 Contains Safeguards
To Minimize Disruptions to the
International Commercial
Arbitration System ..................................
Conclusion .....................................................................
(i)
Page
1
4
6
7
7
11
12
15
15
18
21
ii
TABLE OF AUTHORITIES
Page(s)
CASES
A. v. C., [2020] EWCA (Civ) 409,
[2020] 1 WLR 3504 (Eng.) ................................ 13
In re Accent Delight Int’l Ltd.,
869 F.3d 121 (2d Cir. 2017) ............................... 18
In re Caratube Int’l Oil Co., LLP,
730 F. Supp. 2d 101 (D.D.C. 2010) ................... 19
Comisión Ejecutiva Hidroeléctrica del
Río Lempa v. Nejapa Power Co. LLC,
341 F. App’x 821 (3d Cir. 2009) ..................... 17, 19
Dalian Deepwater Dev. Ltd. v. Sveinung
Dybdahl, [2015] NZHC 151,
[2015] 3 NZLR 260 (N.Z.) .............................. 13, 14
In re Dubey, 949 F. Supp. 2d 990
(C.D. Cal. 2013) .................................................. 19
Emory v. Grenough, 3 U.S. 369 (1797) ................
7
In re Eni S.p.A., No. 20-MC-334,
2021 WL 1063390 (D. Del. Mar. 19, 2021)....... 20
Euromepa, S.A. v. R. Esmerian, Inc.,
154 F.3d 24 (2d Cir. 1998) ................................. 11
GE Energy Power Conversion Fr.
SAS, Corp. v. Outokumpu Stainless
USA, LLC, 140 S. Ct. 1637 (2020) .................. 9, 10
In re Grupo Unidos Por El Canal, S.A.,
No. 14-MC-00226, 2015 WL 1810135
(D. Colo. Apr. 17, 2015) .................................. 17, 20
In re Hallmark Cap. Corp.,
534 F. Supp. 2d 951 (D. Minn. 2007) ................ 16
Hartford Fire Ins. Co. v. California,
509 U.S. 764 (1993) .............................................
8
iii
TABLE OF AUTHORITIES—Continued
Page(s)
Hilton v. Guyot, 159 U.S. 113 (1895) ....................
7
HRC-Hainan Holding Co., LLC v.
Yihan Hu, No. 19-MC-80277,
2020 WL 906719 (N.D. Cal. Feb. 25, 2020) ..... 16
Intel Corp. v. Advanced Micro
Devices, Inc., 542 U.S. 241 (2004) ...... 5, 18, 19, 20
Int’l Transactions, Ltd. v. Embotelladora
Agral Regiomontana, SA de CV,
347 F.3d 589 (5th Cir. 2003) ..............................
8
Islamic Republic of Pakistan v.
Arnold & Porter Kaye Scholer LLP,
No. 18-MC-103, 2019 WL 1559433
(D.D.C. Apr. 10, 2019) ....................................... 20
In re Malev Hungarian Airlines,
964 F.2d 97 (2d Cir. 1992) .............................. 11, 19
Medellin v. Texas, 552 U.S. 491 (2008) ................
9
In re Mesa Power Grp., LLC,
No. 11-MC-280, 2012 WL 6060941
(D.N.J. Nov. 20, 2012) ....................................... 21
Mitsubishi Motors Corp. v.
Soler Chrysler-Plymouth, Inc.,
473 U.S. 614 (1985) .............................................
9
Olympic Airways v. Husain,
540 U.S. 644 (2004) ............................................. 10
In re Peruvian Sporting Goods S.A.C.,
No. 18-MC-91220, 2018 WL 7047645
(D. Mass. Dec. 7, 2018) ...................................... 19
In re Procter & Gamble Co.,
334 F. Supp. 2d 1112 (E.D. Wis. 2004) ............ 20
Schmitz v. Bernstein Liebhard &
Lifshitz, LLP, 376 F.3d 79 (2d Cir. 2004) ....... 19
iv
TABLE OF AUTHORITIES—Continued
Page(s)
Servotronics, Inc. v. Boeing Co.,
954 F.3d 209 (4th Cir. 2020) .............................. 11
Société Nationale Industrielle Aérospatiale
v. U.S. Dist. Ct. for S. Dist. of Iowa,
482 U.S. 522 (1987) ............................................. 7, 8
Tex. Keystone, Inc. v. Prime Nat. Res., Inc.,
694 F.3d 548 (5th Cir. 2012) .............................. 11
Vimar Seguros y Reaseguros, S.A. v.
M/V Sky Reefer, 515 U.S. 528 (1995) ............... 10
STATUTES AND CODES
28 U.S.C. § 1782 ................................................. passim
28 U.S.C. § 1782(a) ........................................ 16, 18, 20
46 U.S.C. §§ 30701 et seq. ....................................... 10
Arbitration Act 1996, c. 23 (Eng., Wales
& N. Ir.) ............................................................... 13
§ 2(3) ................................................................ 13
§ 44(2)(a) ......................................................... 13
Bundesgesetz über das Internationale
Privatrecht [IPRG] [Federal Act on
Private International Law]
Dec. 18, 1987, SR 291 (Switz.) .......................... 14
art. 185a .......................................................... 14
Code de procédure civile [C.P.C.]
[Civil Procedure Code] (Fr.) ............................ 14
art. 1469 .......................................................... 14
art. 1506 .......................................................... 14
Evidence Act 2006, pt. 4 (N.Z.) .......................... 13, 14
§ 182 ................................................................. 14
§ 184 ................................................................. 14
§ 185 ................................................................. 14
v
TABLE OF AUTHORITIES—Continued
Page(s)
Lag om skiljeförfarande (Svensk
författningssamling [SFS] 1999:116)
(Swed.) .................................................................
§ 26 ..................................................................
§ 50 ..................................................................
Zivilprozeßordnung [ZPO]
[Code of Civil Procedure] (Ger.) ......................
§ 1025 ...............................................................
§ 1050 ...............................................................
14
14
14
14
14
14
TREATY PROVISIONS
Convention on the Recognition and
Enforcement of Foreign Arbitral
Awards, June 10, 1958, 84 Stat. 692,
330 U.N.T.S. 3 .............................................. 4, 9, 10
International Convention for the
Unification of Certain Rules of Law
Relating to Bills of Lading,
Aug. 25, 1924, 51 Stat. 233,
120 L.N.T.S. 155 ................................................. 10
OTHER AUTHORITIES
Ayelet Ben-Ezer & Ariel L. Bendor,
The Constitution and Conflict-of-Laws
Treaties: Upgrading the International
Comity, 29 N.C.J. Int’l L. &
Com. Reg. 1 (2003) .............................................
8
Pamela K. Bookman, Litigation
Isolationism, 67 Stan. L. Rev.
1081 (2015)...........................................................
8
Gary B. Born, International
Commercial Arbitration
(3d ed. 2021) ........................................ 12, 16, 17, 18
vi
TABLE OF AUTHORITIES—Continued
Page(s)
Robert Bradshaw, How To Obtain
Evidence from Third Parties:
A Comparative View,
36 J. Int’l Arb. 629 (2019) .................................. 15
Stephen Breyer, The Court and the
World: American Law and the New
Global Realities (2015) ................................... 10, 12
Donald Earl Childress III, Comity as
Conflict: Resituating International
Comity as Conflict of Laws,
44 U.C. Davis L. Rev. 11 (2010) ....................... 11
William S. Dodge, International Comity
in American Law, 115 Colum. L. Rev.
2071 (2015)...........................................................
8
Martin Illmer & Ben Steinbrück,
U.S. Discovery and Foreign Private
Arbitration: The Foreign Lawyer’s
Perspective, 25 J. Int’l Arb. 329 (2008) ........... 12
Int’l Bar Ass’n, Rules on the Taking
of Evidence in International
Arbitrations (2020) ............................................ 20
Int’l Council for Com. Arb., Guide to the
Interpretation of the 1958 New York
Convention: A Handbook
for Judges (2011) .............................................. 2, 10
Julian D.M. Lew, Document Disclosure,
Evidentiary Value of Documents and
Burden of Evidence, in Written
Evidence and Discovery in
International Arbitration: New Issues
and Tendencies 11 (Teresa Giovannini
& Alexis Mourre eds., 2009) ............................. 16
vii
TABLE OF AUTHORITIES—Continued
Page(s)
Joel R. Paul, The Transformation of
International Comity, 71 Law &
Contemp. Probs. 19 (2008) ................................
Lucy F. Reed & Ginger Hancock,
US Style Discovery: Good or Evil?,
in Written Evidence and Discovery in
International Arbitration: New Issues
and Tendencies 339 (Teresa Giovannini
& Alexis Mourre eds., 2009) .............................
Laurence Shore, State Courts and
Document Production, in Written
Evidence and Discovery in
International Arbitration: New Issues
and Tendencies 57 (Teresa Giovannini
& Alexis Mourre eds., 2009) .............................
Reinmar Wolff, Judicial Assistance
by German Courts in Aid of
International Arbitration, in Int’l
Arb. and the Courts 233 (Devin Bray
& Heather L. Bray eds., 2015) .........................
11
20
16
15
IN THE
Supreme Court of the United States
————
NO. 21-401
ZF AUTOMOTIVE US, INC., ET AL.,
Petitioners,
v.
LUXSHARE, LTD.,
Respondent.
————
On Writ of Certiorari
to the United States Court of Appeals
for the Sixth Circuit
————
BRIEF OF PROFESSORS TAMAR MESHEL,
CRINA BALTAG, FABIEN GÉLINAS, AND JANET
WALKER AS AMICI CURIAE IN SUPPORT OF
RESPONDENT LUXSHARE, LTD.
————
INTEREST OF AMICI CURIAE 1
Amici are foreign scholars and practitioners of international arbitration who have authored numerous books and
articles on arbitration law and practice. They have an
Pursuant to this Court’s Rule 37.6, counsel for amici curiae states
that no counsel for a party authored this brief in whole or in part, no
counsel or party made a monetary contribution intended to fund the
preparation or submission of this brief, and no person other than
amici or its counsel made such a contribution. The parties have provided written consent to the filing of this brief.
1
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interest in the proper application of 28 U.S.C. §1782 to foreign-seated international commercial arbitral tribunals
and bring a unique comparative perspective to this critical
issue.
Dr. Tamar Meshel is an Assistant Professor at the University of Alberta Faculty of Law in Edmonton, Alberta,
Canada. Dr. Meshel researches, teaches, and consults in
the areas of international and domestic arbitrations, including issues in investor-state, interstate, and international commercial arbitrations. Her work has been cited
by scholars, litigants, and the Supreme Court of Israel.
Dr. Meshel has practiced international commercial arbitration as a lawyer at Fasken, an international law firm,
and as Deputy Counsel at the International Court of Arbitration of the International Chamber of Commerce in
Paris. She has also served as a legal advisor to the Jerusalem Arbitration Center in Israel and Palestine, and was
a Research Fellow with the Department of International
Law and Dispute Resolution at the Max Planck Institute
for International, European and Regulatory Procedural
Law in Luxembourg.
Dr. Meshel frequently consults on arbitration issues for
domestic and international bodies. She was a Member of
the Sounding Board, which advised on the development of
the Hague Rules on Business and Human Rights Arbitration. Dr. Meshel also advised the Alberta Law Reform Institute regarding the adoption of the Canadian Uniform
International Commercial Arbitration Act and served as a
Member of the Board of Reporters of the Institute for
Transnational Arbitration. She also translated the International Council for Commercial Arbitration’s 2011 Guide
to the Interpretation of the 1958 New York Convention: A
Handbook for Judges, and co-translated the 2021 Arbitration Rules of the International Chamber of Commerce.
3
Dr. Crina Baltag is an Associate Professor in International Arbitration at Stockholm University in Stockholm,
Sweden, and a Director of the University’s Master in International Commercial Arbitration Law. Dr. Baltag is
frequently appointed as arbitrator and legal expert in
commercial and investment arbitrations. She is a member
of the Board of the Arbitration Institute of the Stockholm
Chamber of Commerce and a Vice Chair of the Academic
Council of the Institute for Transnational Arbitration. She
has previously served as the Secretary General of the Arbitration and Mediation Center of the American Chamber
of Commerce for Brazil.
Dr. Fabien Gélinas is the Sir William C. Macdonald
Professor of Law and Norton Rose Fulbright Faculty
Scholar in Arbitration and Commercial Law at McGill
University in Montreal, Quebec, Canada, where he was
formerly associate dean of law and director of the Institute
of Comparative Law. Dr. Gélinas serves as arbitrator in
international commercial and investment matters, and as
an appointing authority for the Permanent Court of Arbitration. He was formerly general counsel of the International Court of Arbitration of the International Chamber
of Commerce, a dispute resolution expert to the Organisation for Economic Co-operation and Development, and a
delegate to the U.N. Commission on International Trade
Law.
Dr. Janet Walker is a Distinguished Research Professor and former associate dean at Osgoode Hall Law School
in Toronto, Ontario, Canada. She authors Canada’s main
text on the conflict of laws, which has been cited in more
than 400 judgments. Dr. Walker is a chair of the ICC Canada Arbitration Committee and a member of the Global
Advisory Board of the New York International Arbitration Center. She is also an independent arbitrator with
4
chambers in Sydney, London, and Toronto, and has served
in matters administered by the International Chamber of
Commerce, International Centre for Dispute Resolution,
Dubai International Arbitration Centre, Hong Kong International Arbitration Centre, and Singapore International Arbitration Centre, among others.
SUMMARY OF ARGUMENT
I.A. In the international arbitration context, comity
concerns counsel toward interpreting domestic laws in a
way that harmonizes them with similar laws in foreign jurisdictions. Such an approach facilitates stability, consistency, and predictability in the international arbitration
system that reinforces its efficiency and effectiveness.
United States courts, for instance, have looked to foreign
interpretations of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards to
promote uniformity in the enforcement of international
commercial arbitration agreements and awards.
B. This Court should take the same comparative approach in deciding whether 28 U.S.C. § 1782 applies to foreign-seated international commercial arbitral tribunals,
which are often referred to as “private” arbitral tribunals.
Section 1782 was designed to promote the orderly resolution of disputes in the United States and abroad and to facilitate international cooperation. Comity principles thus
favor an interpretation of § 1782 that is consistent with
similar laws in other jurisdictions. A construction of § 1782
guided by these comity concerns respects other countries’
interests in a well-functioning international commercial
arbitration system.
C. Several leading international arbitration jurisdictions have domestic equivalents of § 1782 that provide judicial assistance in gathering evidence for use in foreignseated commercial arbitrations. Those jurisdictions in-
5
clude the United Kingdom, New Zealand, France, Germany, Sweden, and Switzerland, all of which provide for
such assistance in their evidentiary rules or arbitration
statutes. Although a global consensus has not yet
emerged, the practice of these jurisdictions counsels
against the wholesale exclusion of foreign-seated international commercial arbitral tribunals from the scope of
§ 1782. Applying § 1782 to such tribunals would be consistent with, and not anomalous to, the emerging norm in
the international system.
II.A. Critics of § 1782 argue that applying the statute
to foreign-seated international commercial arbitrations
threatens their hallmark characteristics of efficiency and
party autonomy. But another key feature of arbitration is
the fair adjudication of disputes based on a comprehensive
evidentiary record, which § 1782 helps support. Arbitral
tribunals also have tools to maintain their efficiency. They
can refuse to stay a case pending a § 1782 application or
sanction parties for using the statute in ways that contravene the tribunal’s rules. And parties, of course, can always choose to contract out of using § 1782. Party autonomy thus supports including foreign-seated international
commercial arbitrations within the scope of § 1782, so litigants and arbitral tribunals have the option to use the tool
when needed.
B. Section 1782 also has safeguards to prevent its
abuse by parties to international arbitrations. Production
of evidence under § 1782 is discretionary, not automatic.
United States courts applying § 1782 thus serve as critical
gatekeepers in preventing potential misuse. In exercising
this discretion, courts are also discouraged from exerting
undue influence in international arbitrations. In Intel
Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241
(2004), this Court set out specific criteria to guide lower
6
courts’ exercise of discretion in evaluating § 1782 applications. Those criteria require courts to consider the international tribunal’s management of its own proceedings,
the tribunal’s position on the need for the requested evidence, whether the requests are designed to circumvent
the agreed-upon arbitration rules, and whether the request is unduly intrusive or burdensome, among other
considerations. On the whole, lower courts have largely
heeded to these requirements, including, for instance, by
accounting for the tribunal’s receptivity to the requested
evidence in deciding whether to grant a § 1782 application.
When applied consistently with this Court’s criteria,
§ 1782 supports international arbitration without risking
unwarranted judicial interference by United States
courts.
ARGUMENT
In the international commercial arbitration context,
comity advances uniformity and recognizes countries’
shared interests in a stable and effective arbitration system. Courts thus apply comity principles by looking to the
practices of other countries when interpreting domestic
laws affecting international commercial arbitration.
Those comity considerations support the application of
28 U.S.C. § 1782 to foreign-seated international commercial arbitral tribunals. Such an interpretation would be
consistent with the emerging global norm. This norm,
which is designed to assist and support international commercial arbitral tribunals, should be encouraged. The experiences of other countries that provide such assistance—including leading international arbitration jurisdictions—undermine the notion that interpreting § 1782 in
this manner deviates from the international consensus.
Extending § 1782 to foreign-seated international commercial arbitrations would not necessarily erode the ef-
7
ficiency and autonomy of such proceedings or lead to undue interference by American courts. Arbitral tribunals
can continue to enforce their own procedures notwithstanding a pending § 1782 application, and parties always
have the option to contract out of § 1782 or adopt rules that
restrict its use. In addition, evidence production under
§ 1782 is discretionary, not mandatory. And this Court has
identified criteria for exercising that discretion in a manner that respects arbitral tribunals’ rules and management of their own proceedings, as well as the bargainedfor expectations of the parties.
I. COMITY SUPPORTS APPLYING § 1782 TO FOREIGN-
SEATED INTERNATIONAL COMMERCIAL ARBITRATIONS
A. Comity Encourages Consistency and Judicial
Cooperation in the International Commercial
Arbitration Context
Courts have long considered concepts of comity in “approach[ing] the resolution of cases touching the laws and
interests of other sovereign states.” Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct. for S. Dist. of
Iowa, 482 U.S. 522, 543 n.27 (1987). Although “international comity” resists a single definition, this Court has described the concept as “the recognition which one nation
allows within its territory to the legislative, executive or
judicial acts of another nation, having due regard * * * to
international duty and convenience.” Hilton v. Guyot, 159
U.S. 113, 163-164 (1895). In other words, “whatever laws
are carried into execution, within the limits of any government, are considered as having the same effect every
where, so far as they do not occasion a prejudice to the
rights of the other governments, or their citizens.” Emory
v. Grenough, 3 U.S. 369, 370 (1797). Comity ultimately reflects the “spirit of cooperation” among different tri-
8
bunals, Aérospatiale, 482 U.S. at 543 n.27, and “the systemic value of reciprocal tolerance and goodwill,” id. at 555
(Blackmun, J., concurring).
In some contexts, international comity considerations
can limit the jurisdiction of domestic courts. In cases that
implicate foreign parties, conduct, law, or effects, comity
concerns often persuade courts to abstain from hearing a
case or to limit the application of domestic law “because
[the case] is too ‘foreign.’ ” Pamela K. Bookman, Litigation Isolationism, 67 Stan. L. Rev. 1081, 1084 (2015). For
example, the “comity of courts” can persuade “judges [to]
decline to exercise jurisdiction over matters more appropriately adjudged elsewhere.” Hartford Fire Ins. Co. v.
California, 509 U.S. 764, 817 (1993).
Similarly, “prescriptive comity,” which involves “the
respect sovereign nations afford each other by limiting the
reach of their laws,” may lead courts to apply the presumption against extraterritoriality to avoid extending
United States laws to foreign cases. Hartford Fire, 509
U.S. at 817; see Bookman, supra, at 1084. In the conflictof-laws context, too, courts may “invoke[ ] comity * * * as
the basis for enforcing foreign laws” and subordinating domestic ones. William S. Dodge, International Comity in
American Law, 115 Colum. L. Rev. 2071, 2088 (2015). Or,
comity may counsel toward the application of res judicata
to recognize the finality of foreign judgments. See Int’l
Transactions, Ltd. v. Embotelladora Agral Regiomontana, SA de CV, 347 F.3d 589, 593 (5th Cir. 2003) (international comity instructs that, “once the parties have had an
opportunity to present their cases fully and fairly before a
court of competent jurisdiction, the results of the litigation
process should be final”); Ayelet Ben-Ezer & Ariel L. Bendor, The Constitution and Conflict-of-Laws Treaties: Upgrading the International Comity, 29 N.C.J. Int’l L. &
9
Com. Reg. 1, 2 (2003) (recognizing res judicata as comity
principle).
In the international commercial arbitration context,
these traditional notions of comity may encourage domestic courts to refrain from hearing disputes submitted to
arbitration; this is the comity between United States
courts and international arbitral tribunals. But there is an
additional comity concern that exists between United
States courts and foreign legal systems that favors cooperation between the two. The arbitration setting requires
“sensitivity to the need of the international commercial
system for predictability in the resolution of disputes.”
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,
Inc., 473 U.S. 614, 629 (1985). Because the goal is to harmonize domestic practices with international norms, comity principles in this context encourage courts to look to
the practices of other countries to make their laws consistent with foreign ones.
For instance, in GE Energy Power Conversion France
SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S. Ct.
1637 (2020), this Court examined the “postratification understanding of other contracting states” in interpreting
the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards (the “New York Convention”), a
multilateral treaty governing the enforcement of international commercial arbitration agreements and awards. Id.
at 1646 (quoting Medellin v. Texas, 552 U.S. 491, 507
(2008)). In particular, the Court looked to the judicial decisions of other Convention signatories to determine that
the domestic doctrine of equitable estoppel should allow
nonsignatory enforcement of arbitration agreements—an
interpretation that aligned with “the weight of authority
from contracting states.” Ibid. The Court thus interpreted the New York Convention with a view toward pro-
10
moting uniformity in the enforcement of international
commercial agreements. Ibid.; see also Int’l Council for
Com. Arb., Guide to the Interpretation of the 1958 New
York Convention: A Handbook for Judges 13-14 (2011)
(noting that “courts should not interpret the terms of the
New York Convention by reference to domestic law” and
that “[t]he terms of the Convention should have the same
meaning wherever in the world they are applied”).
Similarly, in Vimar Seguros y Reaseguros, S.A. v. M/V
Sky Reefer, 515 U.S. 528 (1995), this Court evaluated
whether the Carriage of Goods by Sea Act, 46 U.S.C.
§§ 30701 et seq.—a statute governing the rights of cargo
owners and cargo carriers—invalidated a foreign arbitration clause in a bill of lading. 515 U.S. at 530. The Court
examined other countries’ interpretations of the International Convention for the Unification of Certain Rules Relating to Bills of Lading, on which the Act was modeled.
Id. at 536-537. It then observed that no party to the Convention construed the disputed provision to prohibit foreign forum-selection clauses and adopted a similar interpretation. Ibid.; see also Olympic Airways v. Husain, 540
U.S. 644, 660 (2004) (Scalia, J., dissenting) (recognizing
that “[f]oreign constructions [of a treaty] are evidence of
the original shared understanding of the contracting parties”).
Accordingly, when interpreting laws that affect international commercial arbitration, courts have “increasingly
sought interpretations of domestic law that would allow it
to work in harmony with related foreign laws, so that together they can more effectively achieve common objectives.” Stephen Breyer, The Court and the World: American Law and the New Global Realities 92 (2015). That
practice, which is guided by principles of comity, encour-
11
ages courts to standardize domestic laws with those in foreign jurisdictions.
B. Courts Should Apply Similar Comity Principles
in Interpreting § 1782, Which Was Designed To
Facilitate International Judicial Cooperation
This Court should apply the same comity principles of
judicial cooperation and international harmony when interpreting 28 U.S.C. § 1782. Comity concerns in the context of § 1782 do not involve any “sacrific[ing] [of] an important U.S. public policy embodied in U.S. statutes to the
requirements of the global market.” Joel R. Paul, The
Transformation of International Comity, 71 Law & Contemp. Probs. 19, 37 (2008). Unlike in the conflict-of-laws
setting, for example, the comity principles relevant to
§ 1782 do not serve to “mediate conflicts between sovereigns and their laws,” but rather to facilitate judicial cooperation and assistance. Donald Earl Childress III, Comity
as Conflict: Resituating International Comity as Conflict
of Laws, 44 U.C. Davis L. Rev. 11, 15 (2010).
Indeed, § 1782 was intentionally designed to “contribute to the orderly resolution of disputes both in the United
States and abroad, elevating the importance of the rule of
law and encouraging a spirit of comity between foreign
countries and the United States.” Servotronics, Inc. v.
Boeing Co., 954 F.3d 209, 213 (4th Cir. 2020). In interpreting § 1782, courts have thus “focus[ed] primarily on fostering” the statute’s “twin aims” of “providing efficient means
of assistance to participants in international litigation in
our federal courts and encouraging foreign countries by
example to provide similar means of assistance to our
courts.” Euromepa, S.A. v. R. Esmerian, Inc., 154 F.3d
24, 28 (2d Cir. 1998) (quoting In re Malev Hungarian Airlines, 964 F.2d 97, 100 (2d Cir. 1992)); see Tex. Keystone,
12
Inc. v. Prime Nat. Res., Inc., 694 F.3d 548, 553 (5th Cir.
2012) (similar).
International comity should thus guide the application
of § 1782 to foreign-seated international commercial arbitrations. In particular, courts should apply § 1782 in a
manner that is consistent with equivalent laws in other jurisdictions, and that recognizes other countries’ interests
in a well-functioning international arbitration system.
Such an interpretation would provide certainty, stability,
and predictability to international commercial arbitration
and reinforce its legitimacy and effectiveness. See Breyer,
supra, at 195.
C. Judicial Assistance in Gathering Evidence for
Use by Foreign-Seated International Commercial Arbitral Tribunals Is Common in the International System
Under comity principles, § 1782 should apply to foreignseated international commercial arbitrations because that
approach is consistent with the emerging international
norm. “[C]ontrary to the apparent impression in the
United States, many foreign legal systems do provide judicial assistance in the taking of evidence” for use by foreign-seated international commercial arbitral tribunals.
Martin Illmer & Ben Steinbrück, U.S. Discovery and Foreign Private Arbitration: The Foreign Lawyer’s Perspective, 25 J. Int’l Arb. 329, 330-331 (2008); see Gary B. Born,
International Commercial Arbitration § 16.03[B] (3d ed.
2021) (similar). Such judicial assistance is either explicitly
provided for in a statute or recognized in jurisprudence interpreting the relevant domestic legislative scheme.
While there is not yet an international consensus on the
issue, there is a growing trend of providing such judicial
assistance—particularly among leading international
commercial arbitration jurisdictions.
13
In the United Kingdom, for instance, the Arbitration
Act provides for judicial assistance in gathering evidence
for use by foreign tribunals. That Act allows courts to order “the taking of the evidence of witnesses” for use in arbitrations seated outside the United Kingdom in the same
manner that is permitted in domestic legal proceedings.
Arbitration Act 1996, c. 23, §§ 2(3), 44(2)(a) (Eng., Wales &
N. Ir.). Courts have discretion, however, not to exercise
that power if there is any reason the arbitration’s foreign
seat “makes it inappropriate” to order the production of
evidence. Id. § 2(3).
In A. v. C., [2020] EWCA (Civ) 409, [2020] 1 WLR 3504
(Eng.), the United Kingdom Court of Appeal confirmed
the application of this provision of the Arbitration Act to
foreign-seated arbitral tribunals. There, a party to an international commercial arbitration in New York sought
the testimony of a third-party witness in the United Kingdom. Id. ¶ 1. The court determined that the Arbitration
Act extends to such tribunals and covers requests for evidence from third parties. Id. ¶ 35.
New Zealand similarly allows for evidence gathering in
aid of foreign-seated international commercial arbitrations. Unlike the Arbitration Act in the United Kingdom,
New Zealand’s Arbitration Act does not extend such assistance, but courts have broadly interpreted the country’s
Evidence Act to do so. In Dalian Deepwater Developer
Ltd. v. Sveinung Dybdahl, [2015] NZHC 151, [2015]
3 NZLR 260 (N.Z.), an arbitral tribunal seated in the
United Kingdom sought assistance from the New Zealand
courts in obtaining testimony from a New Zealand witness, invoking the Evidence Act. Id. ¶ 1. That Act allows
domestic courts to provide “assistance in obtaining evidence for civil proceedings” upon application by “any court
or tribunal exercising jurisdiction in a country or territory
14
outside New Zealand.” Evidence Act 2006, pt. 4, §§ 182,
184-185 (N.Z.). The New Zealand High Court addressed
a question similar to the one at issue here: whether the
phrase “any court or tribunal” requesting assistance under the Evidence Act included an international commercial arbitral tribunal. [2015] NZHC 151 ¶¶ 3-4.
The court concluded that the phrase “any court or tribunal” required only that the requesting tribunal exercise
jurisdiction outside New Zealand—not that the tribunal
exercise jurisdiction over the foreign country or territory
itself. [2015] NZHC 151 ¶¶ 27-28. That phrase thus included international commercial arbitral tribunals as a
matter of plain text. Id. ¶ 36. The court also implied that
exclusion of those tribunals from the statute would produce the undesirable result of leaving them without access
to any judicial assistance for evidence-gathering in New
Zealand. Id. ¶ 40. Finally, the court observed that New
Zealand courts ultimately retain discretion over whether
to exercise their power to authorize the production of evidence, minimizing the risk of abuse. Id. ¶ 38.
In addition, France, Germany, Sweden, and Switzerland have all enacted provisions within their codes of civil
procedure or arbitration statutes that allow judicial assistance in gathering evidence for use by foreign-seated international commercial arbitral tribunals. See Code de
procédure civile [C.P.C.] [Civil Procedure Code] arts.
1469, 1506 (Fr.); Zivilprozeßordnung [ZPO] [Code of Civil
Procedure], §§ 1025, 1050, https://www.gesetze-im-internet.de/englisch_zpo/englisch_zpo.html (Ger.); Lag om
skiljeförfarande (Svensk författningssamling [SFS] 1999:
116), §§ 26, 50, https://sccinstitute.se/media/1773096/theswedish-arbitration-act_1march2019_eng-2.pdf (Swed.);
Bundesgesetz über das Internationale Privatrecht [IPRG]
[Federal Act on Private International Law] Dec. 18, 1987,
15
SR 291, art. 185a, para. 2, https://www.fedlex.admin.ch/
eli/cc/1988/1776_1776_1776/en (Switz.). Many of those
statutes also include safeguards that prevent overbroad
requests, including requirements that the party identify
the requested evidence with sufficient specificity and that
the arbitral tribunal approve the request. See Robert
Bradshaw, How To Obtain Evidence from Third Parties:
A Comparative View, 36 J. Int’l Arb. 629, 654 (2019) (recognizing provisions that avoid “fishing expeditions”);
Reinmar Wolff, Judicial Assistance by German Courts in
Aid of International Arbitration, in Int’l Arb. and the
Courts 233, 245-246 (Devin Bray & Heather L. Bray eds.,
2015) (similar).
Accordingly, some of the most important arbitration jurisdictions provide judicial assistance in gathering evidence for use by foreign-seated international commercial
arbitral tribunals. Such practices are increasingly the
norm. The experiences of these countries belie the notion
that including such tribunals within the scope of § 1782
would render the statute an anomaly in the international
system.
II. SECTION 1782 SUPPORTS THE GOALS OF INTERNATIONAL COMMERCIAL ARBITRATION
A. Section 1782 Does Not Undermine Efficiency or
Party Autonomy
A common criticism of applying § 1782 to foreign-seated
international commercial arbitrations is that it would undermine the basic features of those proceedings, including
efficiency and party autonomy. See, e.g., Xu Guojian Amicus Br. 10-16; Chamber of Commerce Amicus Br. 14-23.
That criticism is overstated.
As an initial matter, while efficiency and cost-effectiveness are important features of international commercial
16
arbitration, they are not the only ones. Another “value of
arbitral tribunals comes from * * * their ability to fairly
adjudicate disputes based on evidence; if § 1782(a) can
from time to time help those tribunals get the evidence
they need to reach more informed decisions, [then] certainly that serves the purpose of such proceedings.” HRCHainan Holding Co., LLC v. Yihan Hu, No. 19-MC80277, 2020 WL 906719, at *8 (N.D. Cal. Feb. 25, 2020).
Indeed, some arbitral tribunals have indicated their receptiveness to § 1782. See, e.g., In re Hallmark Cap. Corp.,
534 F. Supp. 2d 951, 957 (D. Minn. 2007) (“[T]he Israeli
arbitrator has stated his ‘receptivity’ to this Court’s assistance.”).
Judicial assistance in gathering evidence is particularly
important with regards to third-party evidence, which an
arbitral tribunal may want but typically has no authority
to order. Born, supra, § 16.02[D]. The absence of thirdparty documents from an arbitration “may leave an issue
unclear and will rarely provide a tribunal with a firm factual situation.” Julian D.M. Lew, Document Disclosure,
Evidentiary Value of Documents and Burden of Evidence, in Written Evidence and Discovery in International Arbitration: New Issues and Tendencies 11, 23 (Teresa Giovannini & Alexis Mourre eds., 2009). In this context, “some arbitral participants have been frustrated on
occasion by the lack of a State court mechanism to provide
more direct support for arbitral proceedings.” Laurence
Shore, State Courts and Document Production, in Written Evidence and Discovery in International Arbitration,
supra, at 57, 57. Section 1782 helps to fill those gaps.
In addition, several features of the international commercial arbitration system prevent a § 1782 application
from delaying the underlying arbitration. For instance,
arbitral tribunals are not required to stay proceedings or
17
deviate from their own procedures pending a § 1782 application. They can also communicate their concerns about
timing to the parties and to the United States courts,
which take those views into account. For instance, in
Comisión Ejecutiva Hidroeléctrica del Río Lempa v.
Nejapa Power Co. LLC, 341 F. App’x 821 (3d Cir. 2009),
the arbitral tribunal had “repeatedly and emphatically
made clear that any documents obtained through the
§ 1782 process would have to be submitted pursuant to the
Arbitral Tribunal’s own directives and deadlines.” Id. at
826. The court thus denied the petition, deferring to “the
Arbitral Tribunal’s own past rulings indicat[ing] that the
time to submit any evidence in the current arbitration
proceeding has passed.” Id. at 827; see also In re Grupo
Unidos Por El Canal, S.A., No. 14-MC-00226, 2015 WL
1810135, at *11 (D. Colo. Apr. 17, 2015) (denying application where, among other things, the “delay” associated
with the request would not be “well-received” by the arbitration panel).
Arbitral tribunals have other tools to curb the potential
misuse of § 1782. Parties to arbitrations make “a commitment to cooperate in good faith in the arbitral process,
with both the arbitral tribunal and other parties to the
arbitration, in resolving the parties’ disputes in a fair,
objective and efficient manner.” Born, supra, § 8.02[B]. A
party who attempts to use § 1782 to circumvent the
parties’ agreements or the arbitral tribunal’s procedural
rules thus may be subject to sanctions. Id. § 15.10.
Nor does § 1782 inherently undermine party autonomy
or impede the parties’ freedom to “design cooperatively
the arbitral process and procedure.” Born, supra,
§ 8.02[B]. Parties remain free to contract out of § 1782 and
similar statutes in other countries, including by incorporating into their arbitration agreements institutional rules
18
that restrict such access. Id. § 16.03[C] & nn.531-534.
Thus, categorically excluding all foreign-seated international commercial arbitrations from the scope of § 1782
actually undermines party autonomy, because it leaves
parties unable to agree to invoke the tool in appropriate
circumstances.
The mere availability of § 1782 and similar statutes in
other jurisdictions does not, by itself, undermine efficiency
or party autonomy in international commercial arbitrations. Upholding parties’ expectations in this setting
does not require categorically excluding such proceedings
from the scope of § 1782. Quite the opposite, arbitral tribunals and parties can structure the use of § 1782 in a way
that is consistent with their agreements and applicable
procedural rules.
B. Section 1782 Contains Safeguards To Minimize
Disruptions to the International Commercial
Arbitration System
Like its foreign equivalents, § 1782 can be applied in a
manner that preserves the efficiency of international commercial arbitration proceedings, respects the parties’ autonomy, and prevents potential abuses. Critically, “a district court is not required to grant a § 1782(a) discovery
application simply because it has the authority to do so.”
Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241,
264 (2004). To the contrary, courts serve as “gatekeepers”
to evidence production, as the statute “leaves to the district courts’ discretion both the decision to grant discovery” and the ability “to ‘prescribe the practice and procedure’ for its production.” In re Accent Delight Int’l Ltd.,
869 F.3d 121, 134 (2d Cir. 2017); see 28 U.S.C. § 1782(a)
(“district court * * * may order” discovery (emphasis
added)). That discretion, moreover, “is not boundless,” as
courts must evaluate an application in light of the statute’s
19
goals of “ providing efficient means of assistance” and “ encouraging foreign countries by example to provide similar
means of assistance to our courts.” Schmitz v. Bernstein
Liebhard & Lifshitz, LLP, 376 F.3d 79, 84 (2d Cir. 2004)
(quoting Malev Hungarian Airlines, 964 F.2d at 100).
The discretion of the lower courts is also cabined by the
criteria articulated by this Court, which prevent applications of § 1782 that unduly interfere with the underlying
arbitration. For instance, a court evaluating a § 1782
application should consider “the nature of the foreign tribunal, the character of the proceedings underway abroad,
and the receptivity of the foreign government or the court
or agency abroad to U.S. federal-court judicial assistance.” Intel, 542 U.S. at 264. Those factors prevent
courts from “interfer[ing] with the parties’ bargained-for
expectations concerning the arbitration process” and the
tribunal’s management of its own proceedings. In re
Caratube Int’l Oil Co., LLP, 730 F. Supp. 2d 101, 105
(D.D.C. 2010).
Applying those principles, courts have conditioned the
grant of a § 1782 application on the approval of the arbitral
tribunal. See, e.g., Nejapa Power, 341 F. App’x at 826-827
(denying request that contravened tribunal’s procedures
and timelines); In re Peruvian Sporting Goods S.A.C., No.
18-MC-91220, 2018 WL 7047645, at *6 (D. Mass. Dec. 7,
2018) (“In a situation where the foreign court restricts discovery, * * * granting the application could undermine the
statute’s objective.”). And they have denied requests
where “it is unclear what the arbitrator’s position [would
be] regarding the parties’ need for documents,” or there is
“no evidence about the arbitral panel’s receptivity to the
requested materials”—such as where a party seeks discovery before the arbitral panel has been constituted. In
re Dubey, 949 F. Supp. 2d 990, 996-997 (C.D. Cal. 2013).
20
Courts should also “consider whether the § 1782(a) request conceals an attempt to circumvent foreign proofgathering restrictions or other policies of a foreign country.” Intel, 542 U.S. at 265. A court should thus deny an
application if it believes that the request contravenes the
procedural rules governing the arbitration or is otherwise
“clearly an end-run around the Tribunal’s evidentiary procedures.” Islamic Republic of Pakistan v. Arnold & Porter Kaye Scholer LLP, No. 18-MC-103, 2019 WL 1559433,
at *7 (D.D.C. Apr. 10, 2019) (observing that arbitral tribunal “repeatedly refused” to order the requested discovery
because it was contrary to tribunal’s procedures); Grupo
Unidos, 2015 WL 1810135, at *11 (rejecting application
that “directly conflict[ed] with the agreed IBA Rules”).
Those procedural rules, for example, may require the
arbitral tribunal’s approval before evidentiary requests
can be submitted to the courts. See Int’l Bar Ass’n, Rules
on the Taking of Evidence in International Arbitrations
art. 3.9 (2020) (third-party evidence requests must be
approved by tribunal).
In addition, “unduly intrusive or burdensome requests
may be rejected or trimmed.” Intel, 542 U.S. at 265.
Courts often attempt to “distinguish a request for useful
discovery from a request that is designed merely to burden an opponent.” In re Procter & Gamble Co., 334 F.
Supp. 2d 1112, 1115 (E.D. Wis. 2004). Courts may also
bear in mind that what is considered material and relevant
evidence in an international arbitration may differ from
United States standards. See Lucy F. Reed & Ginger
Hancock, US Style Discovery: Good or Evil?, in Written
Evidence and Discovery in International Arbitration, supra, at 339, 351. And they can impose limitations on production, including by requiring a protective order or narrowing the scope of the request. See, e.g., In re Eni S.p.A.,
21
No. 20-MC-334, 2021 WL 1063390, at *6 (D. Del. Mar. 19,
2021) (granting protective order to limit use of discovery);
In re Mesa Power Grp., LLC, No. 11-MC-280, 2012 WL
6060941, at *8 (D.N.J. Nov. 20, 2012) (limiting discovery to
“narrowly tailored” requests “to prevent it from being
unduly intrusive or burdensome”).
This Court has recognized several criteria that guide
courts’ exercise of discretion in evaluating § 1782 applications. On balance, the experience in the lower courts
demonstrates that they have adhered to those criteria in
their decisionmaking. To the extent they have not done
so, this Court can simply reinforce its guidance rather
than categorically exclude foreign-seated international
commercial arbitral tribunals from the scope of § 1782.
Applying § 1782 in accordance with the Court’s directives
will not disrupt the international arbitration system or
threaten the autonomy and efficiency of such proceedings.
CONCLUSION
This Court should interpret 28 U.S.C. § 1782 to apply
to foreign-seated international commercial arbitral tribunals.
Respectfully submitted.
ROBERT K. KRY
LISA W. BOHL
MOLOLAMKEN LLP
Counsel of Record
The Watergate, Suite 500
MOLOLAMKEN LLP
600 New Hampshire Ave., N.W. 300 N. LaSalle St., Suite 5350
Washington, D.C. 20037
Chicago, IL 60654
(202) 556-2000
(312) 450-6700
lbohl@mololamken.com
Counsel for Amici Curiae
MARCH 2022
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