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., GERALD DEKKER,

AND CHRISTOPHE MARNAT,

Petitioners,

LUXSHARE, LTD.,

_________

Respondent.

On Writ of Certiorari to

the United States Court of Appeals

for the Sixth Circuit

_________

BRIEF OF ASHISH VIRMANI AS AMICUS

CURIAE IN SUPPORT OF RESPONDENT

_________

JASON MOBERLY CARUSO

Counsel of Record

SHAIA ARAGHI

NEWMEYER & DILLION LLP

895 Dove Street, 5th Floor

Newport Beach, CA 92660

jason.caruso@ndlf.com

Telephone: (949) 854-7000

Counsel for Amicus Curiae

March 1, 2022

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES.......................................4

INTEREST OF AMICUS CURIAE............................8

SUMMARY OF ARGUMENT....................................9

ARGUMENT ............................................................10

A District Court’s Grant of Assistance to

an International Commercial Arbitral

Tribunal Under Section 1782 Issues

Upon Meeting Certain Factors. ....................11

An “Interested Person” Entitled

to Invoke Section 1782 Can Only

Mean a Party or a Prospective

Party to the Arbitration

Proceedings. ........................................13

A Foreign or International

Tribunal Under Intel Standards

Includes an International

Commercial Arbitral Tribunal. ..........15

The Scope and Nature of

Assistance to Be Granted Should

Itself Be Determined Via

Arbitration. .........................................16

II.

Conditioning an Order Under

Section 1782 on a Foreign

Discoverability Requirement May

Impinge Upon the Procedural

Autonomy of the Arbitral

Tribunal...............................................19

The Applicability of the Intel Tests in

the Context of International

Commercial Arbitral Tribunals. ...................22

The First Intel Factor – The

District Court Should Not

Substantively Re-Examine the

Issue of the Nature and Extent of

Discovery to be Granted to an

Interested Person................................22

The Second Intel Factor – The

Order of the Arbitral Tribunal

with Respect to the Extent of

Discovery Must Not Be ReEvaluated by the District Court.........23

The Third Intel Factor – An

Exhaustion Requirement Should

Be Imposed as A Condition of The

District Court Entertaining A

Section 1782 Request..........................25

III.

The Fourth Intel Factor –

“Trimming” of Discovery

Requests Would Not Be

Appropriate in The Context of An

International Commercial

Arbitral Tribunal. ...............................26

This Proposed Construction and

Application of Section 1782 Would in

Fact Limit Judicial Intervention in

International Commercial Arbitrations,

and Favor Arbitration. ..................................27

CONCLUSION .........................................................28

TABLE OF AUTHORITIES

Page(s)

Federal Cases

In re Digitechnic,

2007 U.S. Dist. LEXIS 33708 (W.D. Wash. May 8,

2007).......................................................................25

Intel v. Advanced Micro Devices,

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

Luxshare, Ltd. v. ZF Auto. US, Inc.,

No. 2:20-MC-51245, 2021 WL 2154700 (E.D. Mich.

May 27, 2021).............................................11, 20, 26

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,

473 U.S. 614 (1985)................................................16

Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp.,

460 U.S. 1 (1983)..............................................17, 27

NBC v. Bear Stearns & Co.,

165 F.3d. 184 (2nd Cir. 1999) ................................10

Rent-A-Center, W., Inc. v. Jackson,

561 U.S. 63 (2010)..................................................16

Republic of Kazakhstan v. Biedermann International,

168 F.3d. 880 (5th Cir. 1999).................................10

Societe Nationale Industrielle Aerospatiale v. United

States District Court for Southern District of Iowa,

482 U.S. 522 (1987)..........................................13, 20

Other Cases

ALC v. ALF,

High Court, Singapore, [2010] SGHC 231............25

Amardeep Singh v. Harveen Kaur,

(2017) 8 SCC 746 .....................................................8

Gajendra Sharma v. Union of India,

2020 SCC OnLine SC 963 .......................................8

National Insurance Co. Ltd. v. Pranay Sethi,

(2017) 16 SCC 680 ...................................................8

Rajat Gupta v. Rupali Gupta, II,

(2018) DMC 376 Del ................................................8

Vinay Kumar Mittal v. Dewan Housing Finance

Corporation Ltd.,

Civil Appeal No. 654-660 of 2020 ............................8

Federal Statutes

9 U.S.C. § 3 ................................................................17

9 U.S.C. § 4 ................................................................17

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

Other Authorities

2018 German Arbitration Institute (DIS) Arbitration

Rules.................................................................19, 23

A New World of Discovery: The Ramifications of Two

Recent Federal Courts' Decisions Granting Judicial

Assistance to Arbitral Tribunals Pursuant to 28

U.S.C. § 1782, 17 Am. Rev. Int’l Arb. 45 (2006) ...24

Contracting to Expand the Scope of Review of Foreign

Arbitral Awards: An American Perspective,

29 Brook. J. Int’l L. 313 (2003)..............................27

Discovery for Foreign Proceedings After Intel v.

Advanced Micro Devices: A Critical Analysis of 28

U.S.C. § 1782 Jurisprudence,

83 S. Cal. L.Rev. 875 (2010) ..................................24

Gabrielle Kaufmann-Kohler, Philippe Bartsch,

Discovery in international arbitration: How much

is too much? 1 German Arbitration Journal, 13

(2004)......................................................................20

International Litigation Under the United States

Code, 65 Colum. L.Rev. 1015 (1965) ...............12, 15

United Nations Commission on International Trade

Law, Model Law on International Commercial

Arbitration ...........................................10, 12, 17, 27

INTEREST OF AMICUS CURIAE1

Amicus curiae Ashish Virmani is one of the select

few counsel entitled to file as an Advocate on Record

before the Supreme Court of India. In the course of his

legal practice spanning over a decade, he has

appeared and argued in over 50 reported cases before

Constitutional Courts in India, who have expressed

their formal appreciation in their judgments for the

efforts and assistance rendered by him. He has also

previously assisted amicus curiae before the Supreme

Court of India for improving the functioning of Debt

Recovery Tribunals, a statutory tribunal in India.

Some of the landmark decisions in which Ashish

Virmani has appeared before the Constitutional

Courts in India are National Insurance Co. Ltd. v.

Pranay Sethi & Ors., (2017) 16 SCC 680, Gajendra

Sharma v. Union of India, 2020 SCC OnLine SC 963,

Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746,

Rajat Gupta v. Rupali Gupta, II (2018) DMC 376 Del.,

and Vinay Kumar Mittal v. Dewan Housing Finance

Corporation Ltd., Civil Appeal No. 654-660 of 2020.

Mr. Virmani regularly advises on and appears in

arbitration proceedings and publishes regarding

arbitration. At present, he is pursuing his LL.M. at

Columbia Law School and is a student editor of the

American Review of International Arbitration

Pursuant to Rule 37.6, the undersigned hereby states that no

counsel for a party to this action authored any part of this brief,

in whole or in part, and no person other than amicus curiae or

their counsel made any monetary contribution towards the

preparation or submission of this brief. All parties have

consented to the filing of this brief.

Journal. He is also an LL.M. board member of the

Columbia International Arbitration Association.

Since the outcome of the dispute pending before this

Court has wide ramifications in the arena of

international arbitration which would affect

arbitration proceedings beyond the United States as

well, the amicus has an interest in the outcome of this

matter as a practitioner in the field of international

arbitration.

SUMMARY OF ARGUMENT

28 U.S.C. § 1782 embodies rules of international

cooperation in litigation which regulate both the

performance of procedural acts abroad in aid of

domestic litigation and the performance of procedural

acts in the United States on behalf of foreign

litigation. An international commercial arbitral

tribunal may require the assistance of United States

district courts in obtaining evidence under Section

1782, just like any other foreign or international

tribunal.

However, in the context of an international

commercial arbitral tribunal, under a good faith

application of the tests laid down in Intel v. Advanced

Micro Devices, 542 U.S. 241 (2004), an order under

Section 1782 should only be issued by the district

court to procedurally execute the request of the

arbitral tribunal or the request of a party with the

approval of the arbitral tribunal. Further, the district

court should not independently substantively

evaluate the scope of evidence and discovery to which

a party may be entitled.

Such an application of Section 1782 would comport

with federal policy in favor of arbitration, which

applies with special force in the field of international

commerce and which requires courts to enforce

arbitration agreements according to their terms. It

would also comport with the procedural assistance

provided by competent courts of a state in taking

evidence under Article 27 of the United Nations

Commission on International Trade Law, Model Law

International

Commercial

Arbitration

(“UNCITRAL Model Law”), as well as Article 5 of the

UNCITRAL Model Law, which limits judicial

intervention in arbitration proceedings.

These prescriptions will increase certainty in

deciding applications for relief under Section 1782,

respect party autonomy, grant necessary deference to

arbitrators to control proceedings before them, ensure

parity with similar procedures followed across the

world, reduce cost, increase efficiency and fairness in

the arbitration proceedings, all while ensuring that

the objective of Section 1782 is met.

ARGUMENT

Before 2004, it was well settled that an

international commercial arbitral tribunal did not fall

within the scope of Section 1782. The Second Circuit

in NBC v. Bear Stearns & Co., 165 F.3d. 184 (2nd Cir.

1999) and the Fifth Circuit in Republic of Kazakhstan

v. Biedermann International, 168 F.3d. 880 (5th Cir.

1999) unequivocally concluded that international

commercial arbitral tribunals were beyond the

statute’s reach. However, after this Court’s decision in

Intel v. Advanced Micro Devices, 542 U.S. 241 (2004)

(“Intel”), courts have split on whether such arbitral

tribunals fall within the definition of “foreign or

international tribunal” under Section 1782. An

observation of this Court in Intel suggests that even

international commercial arbitral tribunals would be

covered within the broad language of Section 1782.

Intel, 542 U.S. at 258, citing Hans Smit, International

Litigation Under the United States Code, 65 Colum.

L.Rev. 1015, 1027 (1965), with approval.

Here, the district court held Intel to be the “leading

and controlling authority” on this issue. Luxshare,

Ltd. v. ZF Auto. US, Inc., No. 2:20-MC-51245, 2021

WL 2154700, at *3 (E.D. Mich. May 27, 2021).

Therefore, taking Intel to be the controlling precedent,

the true question before this Court is the scope of the

powers which the district court may exercise while

entertaining a request under Section 1782 in the

context of an international commercial arbitral

tribunal.

I. A District Court’s Grant of Assistance to

an International Commercial Arbitral

Tribunal Under Section 1782 Issues Upon

Meeting Certain Factors.

Section 1782 sets forth “rules of international

cooperation in litigation which regulate both the

performance of procedural acts abroad in aid of

domestic litigation and the performance of procedural

acts in the United States on behalf of foreign

litigation[,]” unless its “interest in doing so outweighs

its interest in promoting the administration of justice

on the international level.” Hans Smit, International

Litigation Under the United States Code, 65 Colum. L.

Rev. 1015, 1017-18 (1965). Thus, the provision

envisages grants of procedural assistance by the U.S.

district courts in executing the requests of the foreign

or international tribunal, rather than independently

determining the scope of evidence that may be

gathered or discovery that may be permitted. This

applies a fortiori in the context of an international

commercial arbitral tribunal.

Similar procedural assistance by courts is provided

for under Article 27 of the UNCITRAL Model Law,

which provides that “[t]he arbitral tribunal or a party

with the approval of the arbitral tribunal may request

from a competent court of this State assistance in

taking evidence” and that “[t]he court may execute the

request within its competence and according to its

rules on taking evidence.” Article 27, United Nations

Commission on International Trade Law, UNCITRAL

Model Law on International Commercial Arbitration

1985: with amendments as adopted in 2006 (Vienna:

United Nations, 2008). This is exactly the nature of

procedural assistance to the international commercial

arbitral tribunal for which Section 1782 was enacted:

to execute the request of the arbitral tribunal at its

request, or at the request of a party with the approval

of the arbitral tribunal. This is the necessary corollary

of this Court’s holding in Intel, as applied in the

context of an international commercial arbitral

tribunal.

A. An “Interested Person” Entitled to

Invoke Section 1782 Can Only Mean a

Party or a Prospective Party to the

Arbitration Proceedings.

In Intel, this Court held that an “interested person”

entitled to invoke Section 1782 is not only a litigant

before the foreign or international tribunal. Intel, 542

U.S. at 255. This Court accorded a wide interpretation

to the term “interested person” in the context of a

complainant who had initiated proceedings before the

European Commission, and who sought discovery

under Section 1782 before the district court. This

Court held that although the applicant lacked a

formal “party” or “litigant” status in proceedings

before the Commission, the complainant had

significant participation and procedural rights before

the European Commission. Intel, 542 U.S. at 255, 257.

The European Commission differs in significant

ways from the U.S. judicial system as it plays a more

“inquisitorial” and active role in gathering evidence.

See Societe Nationale Industrielle Aerospatiale v.

United States District Court for Southern District of

Iowa, 482 U.S. 522, 560 (1987) (“The civil-law system

is inquisitional rather than adversarial and the judge

normally questions the witness and prepares a

written summary of the evidence”). Even interested

third parties who can “show a sufficient interest in the

outcome of the proceedings,” may be admitted and

participate in oral hearings in proceedings before the

European Commission. Michael Albers, Jérémie

Jourdan, The Role of Hearing Officers in EU

Competition Proceedings: A Historical and Practical

Perspective, Journal of European Competition Law &

Practice, Vol. 2, Issue 3, June 2011 at 185–200.

Thus, the context of the holding in Intel is critical:

the term “interested person” as used in Section 1782

is not restricted to a litigant in the context of an

investigation

pending

before

the

European

Commission because “in addition to prompting an

investigation, the complainant has the right to submit

information for the DG-Competition’s consideration,

and may proceed to court if the Commission

discontinues the investigation or dismisses the

complaint.” Intel, 542 U.S. at 256. This Court’s

holding in Intel was therefore premised on the

complainant having sufficient participation rights

triggering a reasonable interest in obtaining judicial

assistance from a United States court pursuant to

Section 1782.

By contrast, an international commercial

arbitration dispute is “fundamentally consensual in

nature” and the international commercial arbitral

tribunal decides issues which arise between parties to

an arbitration agreement and can only bind those

parties, unless under certain circumstances nonsignatories may also participate in the arbitration and

ultimately be bound by the award. Gary B. Born,

International Arbitration: Law and Practice (2021)

1517. Thus, the nature of participation rights before

an international commercial arbitral tribunal are very

different and much more limited than the

participation rights of an “interested third party”

before the European Commission.

This Court in Intel rejected a generalized limitation

to the meaning of “interested person” under Section

1782, but did not exclude an “as applied”

interpretation, depending on the nature of the rights

which may be accorded to a person potentially

interested in the proceedings. An international

commercial arbitral tribunal is created by party

consent to adjudicate disputes between the concerned

parties. Therefore, in the context of an international

commercial arbitral tribunal, an “interested person”

entitled to invoke Section 1782 can only mean a party

or a prospective party to the arbitration proceedings

since no other person would be entitled to any

participation rights before the international

commercial arbitral tribunal.

B. A Foreign or International Tribunal

Under Intel Standards Includes an

International Commercial Arbitral

Tribunal.

While coming to the conclusion that the European

Commission was a “foreign or international tribunal”

under Section 1782, this Court in Intel quoted with

approval Professor Hans Smit, who had advocated

that the term would cover administrative and quasijudicial authorities as well. Hans Smit, International

Litigation under the United States Code, 65 Colum.

L.Rev. 1015, 1027 (1965). This Court also quoted the

relevant part from the article of Professor Hans Smit

which posited that arbitral tribunals are covered

within the breadth of the terms “foreign or

international tribunal.” There is no reason for this

Court to deviate from this holding in Intel, since

international commercial arbitral tribunals would

require the assistance of U.S. courts in obtaining

evidence, just like any other foreign or international

tribunal. However, the extent of assistance extended

must be to provide procedural assistance in executing

the orders of the international commercial arbitral

tribunal, rather than independently substantively

evaluating the need and extent for discovery and

evidence.

C. The Scope and Nature of Assistance to

Granted

Should

Itself

Determined Via Arbitration.

In Intel, this Court held that the “proceeding” for

which assistance was sought under Section 1782 must

be in reasonable contemplation of the parties, but did

not need to be “pending” or “imminent.” Intel, 542 U.S.

at 259.

There is no bar under federal law for adjudication of

the substantive issue of the scope of discovery or

evidence to be provided to a party by the international

commercial arbitral tribunal. Rather, there is a

federal policy in favor of arbitration, which applies

with special force in the field of international

commerce and which “requires courts to enforce

[arbitration agreements] according to their terms.”

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,

473 U.S. 614, 616 (1985); Rent-A-Center, W., Inc. v.

Jackson, 561 U.S. 63, 67 (2010). Further, “as a matter

of federal law, any doubts concerning the scope of

arbitrable issues should be resolved in favor of

arbitration.” Moses H. Cone Mem. Hosp. v. Mercury

Constr. Corp., 460 U.S. 1, 24-25 (1983).

Most dispute resolution clauses and institutional

rules are widely worded to encompass within their

scope all disputes arising under or in connection with

the agreement. Such clauses would include within

their scope the extent of discovery and evidence which

a party may pursue, including mechanisms for

obtaining determinations regarding the same.

Further, the procedure for the conduct of arbitration

is either agreed to between the parties, or left to the

discretion of the arbitral tribunal. See Born at 2295

(“[o]ne of the most fundamental characteristics of

international commercial arbitration is the parties’

freedom to agree upon the arbitral procedure.”); See

also Article 19, United Nations Commission on

International Trade Law, UNCITRAL Model Law on

International Commercial Arbitration 1985: with

amendments as adopted in 2006 (Vienna: United

Nations, 2008).

If the parties as per the terms of their agreement

have not agreed to foreign discovery facilitated by a

district court, the district court would respect and

abide by the terms of the subject agreement. 9 U.S.C.

§ 3 (with respect to any issue “referable to

arbitration,” the trial in a suit shall be stayed until

“such arbitration has been had in accordance with the

terms of the agreement”) (emphasis added); 9 U.S.C. §

4 (in case of a failure, neglect or refusal of the party to

arbitrate, the court shall pass “an order directing that

such arbitration proceed in the manner provided for in

such agreement” and the Court “shall make an order

directing the parties to proceed to arbitration in

accordance with the terms of the agreement”)

(emphasis added).

The established strong federal policy in favor of

arbitral dispute resolution applies with special force

in the field of international commerce. Accordingly, a

district court that issues an order independently

fixing the scope of discovery under Section 1782 may

be encroaching on party autonomy and the right of the

parties and/or the international commercial arbitral

tribunal to determine its procedure.

Accordingly, the issue of the extent of evidence

and/or discovery that a party may be entitled to should

be considered and decided by the international

commercial arbitral tribunal. Consistent with the

underlying policy of U.S. courts to provide procedural

assistance for evidence gathering and discovery, any

order made by the arbitral tribunal seeking assistance

in obtaining evidence could then be procedurally

enforced under Section 1782, rather than be routed as

a request from a foreign court at the seat, which would

only add time and complexity to the process.

Therefore, a respondent in the Section 1782

proceeding should be permitted to request that the

district court refer the determination substantive

issue of the nature and scope of assistance to be issued

to the arbitrator themself.

Even in the present dispute before the Court, the

relevant dispute resolution clause provides that “[a]ll

disputes arising under or in connection with [Master

Purchase] Agreement” are to be resolved in

arbitration. The plain language of this clause includes

within its ambit an adjudication of the substantive

nature and extent of discovery sought by Luxshare

from the Petitioners, including from their directors

and officers or from any other person. This flows from

the power of the arbitral tribunal to determine its own

procedure and to “examine fact witnesses other than

those called by the parties.” Clause 28.2, 2018 DIS

Arbitration Rules. In view of the federal policy in favor

of arbitration, the court would defer to the arbitral

tribunal on this substantive issue.

D. Conditioning an Order Under Section

1782 on a Foreign Discoverability

Requirement May Impinge Upon the

Procedural Autonomy of the Arbitral

Tribunal.

In Intel, this Court held there was no blanket

“foreign-discoverability

requirement”

for

the

invocation of Section 1782. Intel, 542 U.S. at 260.

However, this Court specifically held that “comity and

parity concerns may be legitimate touchstones for a

district court’s exercise of discretion in particular

cases.” Intel, 542 U.S. at 261. Therefore, while Section

1782(a)’s text does not include a generally applicable

foreign-discoverability rule, Intel leaves the door open

for the district court to make such a determination on

a case-to-case basis, taking into account comity and

parity concerns. However, such a determination is

best left to the arbitrator in the first instance.

In the present dispute before this Court, the

arbitration clause provides that the agreement “shall

be governed by German law,” and further provides

that all disputes shall be “exclusively and finally

settled” “in accordance with the Arbitration Rules of

the German Institution of Arbitration e.V. (DIS) . . .

without recourse to the ordinary courts of law.”

Luxshare, Ltd. v. ZF Auto. US, Inc., No. 2:20-MC51245, 2021 WL 2154700, at *8 (E.D. Mich. May 27,

2021). It also provides that “The place of the

arbitration shall be Munich, Germany.” Id.

The issue of foreign-discoverability comes into

sharp focus in this case since “[c]ivil law jurisdictions

[such as Germany] know no such thing as discovery[.]”

Gabrielle Kaufmann-Kohler, Philippe Bartsch,

Discovery in international arbitration: How much is

too much? 1 German Arbitration Journal, 13, 16

(2004). Whereas, “[t]he United States Federal Rules of

Civil Procedure provide for broad pre-trial discovery,

one of the most important instruments of discovery

being document production.” Id at 15; see also Societe

Nationale Industrielle Aerospatiale v. U.S. Dist. Ct. for

S. Dist. of Iowa, 482 U.S. 522, 560 (“[e]ven in commonlaw countries no system of evidence-gathering

resembles that of the United States”).

This Court in Intel further held that “the foreign

tribunal can place conditions on its acceptance of the

information to maintain whatever measure of parity

it concludes is appropriate.” Intel, 542 U.S. at 262. As

a practical matter, however, once substantive

discovery or deposition under Section 1782 is obtained

and a party bases its pleadings or its case on such

information, the arbitral tribunal may struggle to

unscramble the scrambled egg: in other words, the

arbitral tribunal may have no effective means to

distinguish the information obtained through

discovery from the other information available to a

litigant, even if it wishes to exclude such evidence

obtained through discovery.

Determination whether a foreign discoverability

requirement is desirable or not becomes even more

difficult when the arbitral tribunal has not yet been

constituted, as is the case in the present dispute. The

district court held that “[w]ithout authoritative proof

that the DIS would reject Section 1782 discovery, and

given Masser’s declaration that ‘German Courts

Admit Evidence Obtained By Way Of U.S. Discovery

Applications[,]’ and the above-cited DIS Rules, the

Undersigned assumes that the DIS would receive it if

it were obtained and presented.” Luxshare, Ltd. v. ZF

Auto. US, Inc., No. 2:20-MC-51245, 2021 WL 2154700,

at *5 (E.D. Mich. May 27, 2021) (internal citations

omitted). However, no opposition from the arbitral

tribunal could have been forthcoming in the absence

of the tribunal having been constituted.

In the context of an international commercial

arbitral tribunal, imposition of an independent

foreign discoverability requirement as a condition of

relief under Section 1782 may impinge upon the

procedural autonomy of the arbitral tribunal.

Therefore, the determination of the scope of evidence

and discovery is best left to the arbitral tribunal.

II. The Applicability of the Intel Tests in the

Context of International Commercial

Arbitral Tribunals.

In Intel, this Court interpreted Section 1782 in the

context a complaint pending before the European

Commission. The dynamics of the application of the

provision change when the nature of the tribunal

involved is an international commercial arbitral

tribunal.

A. The First Intel Factor – The District

Court Should Not Substantively ReExamine the Issue of the Nature and

Extent of Discovery to be Granted to an

Interested Person.

In Intel, this Court held that the district court is

required to consider whether the person from whom

discovery is sought is a participant in the foreign

proceeding. This Court included this requirement

since non-participants in the foreign proceeding may

be outside the foreign tribunal’s jurisdictional reach,

and Section 1782 could be utilized to obtain such

evidence. This Court reasoned that “nonparticipants

in the foreign proceeding may be outside the foreign

tribunal’s jurisdictional reach; hence, their evidence,

available in the United States, may be unobtainable”

absent relief under Section 1782. Intel, 542 U.S. at

264. By contrast, “A foreign tribunal has jurisdiction

over those appearing before it, and can itself order

them to produce evidence.” Id.

Arbitral tribunals have wide powers to examine not

only parties, but also witnesses who may not be

parties or participants to the dispute. In the present

case, Rule 28.2 of the DIS Rules, which even apply to

expedited proceedings by virtue of Rule 1.4, permit the

arbitral tribunal to “examine fact witnesses other

than those called by the parties, and order any party

to produce or make available any documents or

electronically stored data.” With the availability of

Section 1782 to arbitral tribunals, any such order of

the arbitral tribunal may be procedurally enforced

under that provision, while the substantive

determination of the nature and extent of the

permitted evidence may still be evaluated by the

arbitral tribunal. This would also obviate the need for

the district court to make an independent substantive

determination, while continuing to be available to

procedurally execute the orders in conformance with

Section 1782.

B. The Second Intel Factor – The Order of

the Arbitral Tribunal with Respect to

the Extent of Discovery Must Not Be

Re-Evaluated by the District Court.

The second Intel factor requires examination of 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 federal court judicial assistance. Intel, 542 U.S. at

264.

As noted above, an international commercial

arbitral tribunal is a creature of contract and is

fundamentally consensual in nature. Party autonomy

is at the heart of international commercial

arbitration. As to the character of the proceedings, the

arbitral tribunal does not carry out public functions,

but rather is a private dispute resolution body.

There are also no formal ways to gauge the

receptivity of the arbitral tribunal to a discovery

request, as Intel gave district courts no guidelines for

evaluating foreign tribunals’ receptivity to discovery

acquired in the United States. Marat A.

Massen, Discovery for Foreign Proceedings After Intel

v. Advanced Micro Devices: A Critical Analysis of 28

U.S.C. § 1782 Jurisprudence, 83 S. Cal. L.Rev. 875

(2010). The only appropriate way to gain knowledge of

the arbitral tribunal’s receptivity is through its formal

orders. In the absence of a formal order from the

tribunal, any attempt to glean its intent would be

speculative at best.

There are other policy considerations for deferring

to the arbitral tribunal with respect to taking evidence

and permitting discovery, such as reduced cost,

efficiency and the arbitrators’ ability to control

discovery. See Anna Conley, A New World of

Discovery: The Ramifications of Two Recent Federal

Courts' Decisions Granting Judicial Assistance to

Arbitral Tribunals Pursuant to 28 U.S.C. § 1782, 17

Am. Rev. Int’l Arb. 45 (2006).

Therefore, with respect to international commercial

arbitral tribunals, district courts must take the

receptivity of the tribunal as set forth in a ruling or

order to be dispositive, and in the absence of any

indication regarding receptivity, decide against

granting any request under Section 1782.

C. The Third Intel Factor – An Exhaustion

Requirement Should Be Imposed as A

Condition of The District Court

Entertaining A Section 1782 Request.

In Intel, this Court held that “a district court could

consider whether the § 1782(a) request conceals an

attempt to circumvent foreign proof-gathering

restrictions or other policies of a foreign country or the

United States.” Intel, 542 U.S. at 265.

Imposing an exhaustion requirement -- i.e.,

requiring the party seeking discovery for use in an

international commercial arbitration to first move the

request before that tribunal, before filing a Section

1782 petition -- would provide a litmus test on the

issue whether the arbitral tribunal is amenable to

such request and whether it would in fact permit such

a request for discovery. Some courts have applied an

exhaustion rule while applying the tests laid down in

Intel. See In re Digitechnic, 2007 U.S. Dist. LEXIS

33708, at *9-10 (W.D. Wash. May 8, 2007). Other

foreign courts have held that the power of the district

court to provide judicial assistance could also be

abused if the party seeking such assistance did so in

contravention of the agreed procedure or the

directions of the arbitral tribunal. See ALC v. ALF,

High Court, Singapore, [2010] SGHC 231 (a party

which applied for issuance of a subpoena to compel the

person named to disclose documents or answer

questions on documents after an arbitral tribunal had

earlier rejected such a request was found to have

abused the process of the court).

Even in the present case, counsel for Luxshare

candidly admitted that “[i]t’s unlikely we'd be able to

get this level of discovery in the DIS, which is exactly

why we're seeking it here[.]” Luxshare, Ltd. v. ZF

Auto. US, Inc., No. 2:20-MC-51245, 2021 WL 2154700,

at *7 (E.D. Mich. May 27, 2021). However, this is not

a situation where Section 1782 may be used to assist

a party in gathering evidence by circumventing the

discovery rules which the arbitral tribunal may apply.

D. The Fourth Intel Factor – “Trimming”

of Discovery Requests Would Not Be

Appropriate in The Context of An

International Commercial Arbitral

Tribunal.

This Court in Intel held that “unduly intrusive or

burdensome requests may be rejected or trimmed” by

the district court. Intel, 542 U.S. at 265. This test

requires and relates to the burden imposed by the

discovery request, which may not be relevant in view

of the previous discussion that a party must first

approach the international commercial arbitral

tribunal with its request for discovery. Of course, the

district court may still deny such a request if the

request in not in compliance with law or the interest

of the United States in doing so outweighs its interest

in promoting the administration of justice on the

international level.

III.

This Proposed Construction and

Application of Section 1782 Would in Fact

Limit

Judicial

Intervention

International Commercial Arbitrations,

and Favor Arbitration.

The policy to limit judicial intervention in arbitral

proceedings aligns with the federal policy in favor of

arbitration and that “as a matter of federal law, any

doubts concerning the scope of arbitrable issues

should be resolved in favor of arbitration.” Moses H.

Cone Mem. Hosp., 460 U.S. at 24-25. Therefore, an

interpretation of Section 1782 that permits for the

execution of the orders of the tribunal at the request

of an interested person would appropriately leave the

substantive issue of nature and extent of evidence /

discovery to be resolved via arbitration, and would in

general favor arbitration.

Article 5 of the UNCITRAL Model Law similarly

prescribes that “no court shall intervene except where

so provided in this Law.” Read in consonance with

Article 27, the courts of a state would remain available

to procedurally execute the requests of the arbitral

tribunal to assist it in obtaining evidence and

discovery. While the UNCITRAL Model Law is not

binding, it constitutes a guide for national legislation,

and one which has been adopted by countries around

the world with varying degrees of alteration. Dan C.

Hulea, Contracting to Expand the Scope of Review of

Foreign Arbitral Awards: An American Perspective, 29

Brook. J. Int’l L. 313, 342 (2003). Thus, a construction

of Section 1782 making relief available to

international commercial arbitrations would in fact

favor and strengthen arbitration, consistent with the

emerging worldwide consensus.

CONCLUSION

For the foregoing reasons, the amicus supports the

Respondents in the matter to the extent that Section

1782 would extend to an international commercial

arbitral tribunal, but advocates for restrictive use of

Section 1782 for procedural assistance to the

international commercial arbitral tribunal only.

Respectfully submitted,

JASON MOBERLY CARUSO

Counsel of Record

SHAIA ARAGHI

NEWMEYER & DILLION LLP

895 Dove Street, 5th Floor

Newport Beach, CA 92660

jason.caruso@ndlf.com

Telephone: (949) 854-7000

Counsel for Amicus Curiae

March 1, 2022

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.