Amicus Curiae Brief — ZF Automotive US, Inc., et al., Petitioners v. Luxshare, Ltd.

No. 21-401

In the

Supreme Court of the United States

ZF AUTOMOTIVE US, INC., GERALD DEKKER

AND CHRISTOPHE MARNAT,

Petitioners,

v.

LUXSHARE, LTD.,

Respondent.

On Writ of Certiorari to the United States

Court of A ppeals for the Sixth Circuit

BRIEF OF FEDERAL ARBITRATION, INC.

(FEDARB) AS AMICUS CURIAE IN

SUPPORT OF RESPONDENT

Henry S. Weisburg

Counsel of Record

Christopher M. Ryan

Jonathan J. Tompkins

Jesse D.H. Sherrett

Shearman & Sterling Llp

599 Lexington Avenue

New York, New York 10022

(212) 848-4000

hweisburg@shearman.com

March 2, 2022

310851

Counsel for Amicus Curiae

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

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

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

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

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

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

I.

The Text of Section 1782(a) Includes

Commercial Arbitral Tribunals within

the Phrase “Foreign or International

Tribunals” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. The Court Must Interpret Section

1782(a) Based on its Unambiguous

Plain Meaning . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. The Plain Meaning of Section 1782(a)

I n c lud e s C o m m e r c i a l A r b it r a l

Tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

C. Even if the Court were to Determine

that the Plain Meaning of “Foreign or

International Tribunal” is Ambiguous,

there is No Clearly Expressed Legislative

Intent to Exclude Arbitral Tribunals . . . . 12

ii

Table of Contents

Page

II. The Distinction Drawn by Courts between

“Governmental” or “State Sponsored”

Arbitrations and “Private” Arbitrations

is False and, in any Event, is Irrelevant

under Section 1782(a) . . . . . . . . . . . . . . . . . . . . . . 16

A. Commercial Arbitration Operates

Under National and International

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

B. Efforts to Disting uish InvestorState Arbitration from Commercial

Arbitration for Purposes of Section

1782(a) Fail . . . . . . . . . . . . . . . . . . . . . . . . . . 21

III. The Court’s Functional Determinations

in Intel are Sufficient to Conclude that All

Arbitral Tribunals are Included in the Phrase

“Foreign or International Tribunal” . . . . . . . . . 24

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

iii

TABLE OF CITED AUTHORITIES

Page

Cases:

A.S. Abell Co. v.

Baltimore Typographical Union No. 12,

338 F.2d 190 (4th Cir. 1964) . . . . . . . . . . . . . . . . . . . . . 9

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

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

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

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

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

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

Artis v. District of Columbia,

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

Bernhardt v. Polygraphic Co. of Am.,

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

Circuit City Stores, Inc. v. Adams,

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

Consorcio Ecuatoriano v.

JAS Forwarding (USA),

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

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

Emlenton Refining Co. v. Chambers,

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

iv

Table of Cited Authorities

Page

Epic Sys. Corp. v. Lewis,

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

Ex rel Application of Winning (HK) Shipping

Co. Ltd.,

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

FDIC v. Meyer,

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

Fonseca v. Blumenthal,

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

Food Mktg. Inst. v. Argus Leader Media,

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

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

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

Fund for Protection of Investor Rights in

Foreign States v. AlixPartners, LLP,

5 F.4th 216 (2d Cir. 2021) . . . . . . . . . . . . . 16, 17, 21, 22

Garcia v. United States,

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

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

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

v

Table of Cited Authorities

Page

Hartford Underwriters Ins. Co. v.

Union Planters Bank, N.A.,

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

Howsam v. Dean Witter Reynolds,

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

Hyland v. Millers Nat’l Ins. Co.,

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

In re Euromepa S.A.,

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

In re Hallmark Capital Corp.,

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

In re Letter of Request from

Crown Prosecution Serv.,

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

In re Servotronics, Inc.,

2019 WL 9698535 (N.D. Ill. Apr. 22, 2019) . . . . . . 16-17

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

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

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

236 F.2d 240 (8th Cir. 1956) . . . . . . . . . . . . . . . . . . . . . 9

Kentucky River Mills v. Jackson,

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

vi

Table of Cited Authorities

Page

Livingston v.

Shreveport-Texas League Baseball Corp.,

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

Mitsubishi Motors Corp. v.

Soler Chrysler Plymouth, Inc.,

473 U.S. 614 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . 9, 27

Red Cross Line v. Atl. Fruit Co.,

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

Republic of Kazakhstan v. Biedermann Int’l,

168 F.3d 880 (5th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . 8

Servotronics, Inc. v. The Boeing Co.,

954 F.3d 209 (4th Cir. 2020) . . . . . . . . . . . . . 4, 5, 17, 19

Shapiro v. United States,

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

Tobey v. Cty. of Bristol,

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

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

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

Ukrnafta v. Carpatsky Petroleum Corp.,

2009 WL 2877156 (D. Conn. Aug. 27, 2009) . . . . . . . 21

United States v. Furlong,

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

vii

Table of Cited Authorities

Page

United States v. LaBonte,

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

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

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

United States v. Turkette,

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

Wilko v. Swan,

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

Statutes and Other Authorities:

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

9 U.S.C. § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

9 U.S.C. § 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

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

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

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

Brief for Petitioners, AlixPartners, LLP, et

al. v. The Fund for Protection of Investor

Ri ght s in Fo r ei g n St a t es, No. 21- 518

(U.S. Sup. Ct. Jan. 24, 2022) . . . . . . . . . . . . . . . . . . . 26

C.P.L.R. §§ 7501-7515 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

viii

Table of Cited Authorities

Page

FedArb Arbitration Rules, Rule 1.04 . . . . . . . . . . . . . . . 1

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

2 J o seph S t ory, C omm en ta ri es O n E qu i t y

Jurisprudence § 1457 (Boston, Little Brown

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

3 William Blackstone, Commentaries On The

Laws Of England 17 (A. Strahan, T. Cadell

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

A ntonin Scalia & Bryan A. Garner, Reading

L aw : T h e I n t e r p r e t a t i o n o f L e g a l

Texts 69 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9, 11

Bryan A. Garner, A Dictionary Of Modern Legal

Usage (2d ed. 1995) . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Hans Smit, American Judicial Assistance

t o In t e r n a ti o n a l Arb i tr a l Tr i b un a l s,

8 A m. Rev. Int’l A rb., 153 (1997) . . . . . . . . . 14, 18, 30

Hans Smit, International Litigation under

th e United States Cod e, 6 5 C olu m . L.

Rev. 1015 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Hans Smit, The Supreme Court Rules on the Proper

Interpretation of Section 1782: Its Potential

Significance for International Arbitration,

14 A m. Rev. Int’l A rb. 295 (2003) . . . . . . 13, 14, 16, 23

ix

Table of Cited Authorities

Page

Joint Appendix of Petitioners, ZF Automotive

US, Inc., Gerald Dekker, and Christophe

Mar nat v. L uxshare , Ltd ., No. 21- 401

(U.S. Sup. Ct. Jan. 24, 2022) . . . . . . . . . . . . . . . . . . . 19

Max Radin, Law Dictionary (1955) . . . . . . . . . . . . . 10, 11

Merriam-Webster’s Dictionary of Law (1996) . . . . . 10-11

New York Convention, Articles V(2)(a), (b) . . . . . . . . . . 27

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

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

S. R ep. No . 88-1580 (1964), as reprinted in

1964 U.S.C.C.A.N. 3782 . . . . . . . . . . . . . . . 5, 13, 14, 15

W. Michael Reisman & Brian Richardson, The

Present – Commercial Arbitration as a

Transnational System of Justice: Tribunals and

Courts: An Interpretation of the Architecture

of International Commercial Arbitration,

in ICCA Series, 17-18, 20 . . . . . . . . . . . . . . . . . . . . . . 18

Webster’s Third New International Dictionary

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

Ziv ilprozessordnung (ZPO) (Code of Civil

Procedure), §§ 1025-1066 . . . . . . . . . . . . . . . . . . . 20, 27

1

INTEREST OF AMICUS CURIAE1

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

proponent of and source for alternative dispute resolution

services, including arbitration, mediation, mock trials,

special masters and corporate monitoring of court orders.

For the past 15 years, FedArb has assisted clients

embroiled in some of the largest and most consequential

domestic and international arbitrations.

FedArb maintains a panel of highly experienced

arbitrators that includes more than 60 retired Article III

judges, as well as multiple retired Article I and state court

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

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

FedArb has developed detailed arbitration rules,

which, inter alia, favor the application in its administered

arbitrations of the Federal Rules of Civil Procedure and

Federal Rules of Evidence, absent party agreement

otherwise. See FedArb Arbitration Rules, Rule 1.04

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

For parties accustomed to practicing in federal court,

the default use of the Federal Rules and FedArb’s roster

of former judges enables familiar and efficient rule-based

procedures, while maintaining the traditional benefits

of arbitration (i.e., arbitrator selection, choice of law,

1. No counsel for a party authored any part of this brief, in

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

counsel made any monetary contribution to the preparation or

submission of this brief. See Sup. Ct. R. 37.6. The parties have

consented to the filing of amici curiae briefs in this case.

2

confidentiality, cost-efficiency, customization, world-wide

enforceability, etc.).

As a leading arbitral institution with a keen focus on

familiar federal court procedure, FedArb has a strong

interest in the applicability of 28 U.S.C. section 1782(a) to

arbitrations commenced pursuant to party agreement, as

it, in effect, extends the application of such procedure to

a further group of arbitrations. FedArb, moreover, has

an interest in seeing the United States policy in favor

of arbitration be furthered by permitting the rightful

extension of assistance available under section 1782(a) to

all foreign and international arbitral tribunals.

SUMMARY OF ARGUMENT

Congress, over time, has greatly expanded and

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

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

in gathering evidence for use in proceedings before foreign

or international tribunals. The straightforward question

raised in ZF Automotive is whether section 1782’s use

of the term “tribunal” encompasses arbitral tribunals

hearing commercial cases not involving sovereign parties.

The text of the statute, standing alone, plainly includes

such tribunals. The legislative history, to which this Court

need not resort under well-established rules of statutory

construction, further bolsters that position.

The Court should disregard the distinction some

courts, including the Second Circuit, have drawn between

so-called “private” and “state-sponsored” arbitral

tribunals in order to exclude the former from section

1782’s reach. The supposed distinction between these

3

two variations of arbitration is illusory, as all forms of

arbitration are in fact “state sponsored,” including those

giving rise to the cases before this Court.

Even if this Court were to find that the plain language

of section 1782(a) somehow does not encompass nongovernmental commercial arbitral tribunals, the Court’s

well-reasoned decision in Intel Corp. v. Advanced Micro

Devices, Inc., 542 U.S. 241 (2004), should put this issue to

rest. In Intel, the Court held that there was “no warrant

to exclude” a “tribunal” from section 1782(a)’s ambit to

the extent it “acts as a first-instance decisionmaker.” Id.

at 258. Arbitral tribunals—commercial and investorstate tribunals alike—are indisputably first-instance

decisionmakers performing, like courts, an important

adjudicatory function.

For these reasons, as elaborated herein, the Court

should affirm the decision of the District Court for the

Eastern District of Michigan, which relies upon the Sixth

Circuit’s decision in Abdul Latif Jameel Transp. Co. v.

FedEx Corp., 939 F.3d 710 (6th Cir. 2019), and hold that the

phrase “foreign or international tribunal” encompasses

non-governmental commercial arbitral tribunals. 2

ARGUMENT

Section 1782 reflects a nearly 150-year Congressional

policy to “provide federal-court assistance in gathering

2. References herein to “commercial arbitral tribunals” are

meant to signify non-governmental commercial arbitral tribunals,

as no party has contended that purely “governmental” arbitral

tribunals (those involving two sovereign parties) are excluded.

4

evidence for use in foreign tribunals.” Intel Corp. v.

Advanced Micro Devices, Inc., 542 U.S. 241, 247 (2004).

While this policy was initially limited to proceedings in

which a foreign sovereign was a party or had an interest

(id. at 248), Congress has “substantially broadened the

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

1958, having recognized “[t]he extensive increase in . . .

international, commercial and financial transactions . . .

and the resultant disputes” that “involv[ed] both

individuals and governments,” S. Rep. N. 85-2392, at

5202-03 (1958), as reprinted in 1958 U.S.C.C.A.N. 5201,

5202-03, Congress further expanded the scope of section

1782(a) to “improve the assistance that it had previously

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

209, 213 (4th Cir. 2020). That process—led by Professor

Hans Smit and the Commission on International Rules

of Judicial Procedure—lasted six years and resulted in

a “complete revision of § 1782.” Intel, 542 U.S. at 248.

Ultimately, the 1964 amendments to section 1782(a)

“increas[ed] international cooperation by providing U.S.

assistance in resolving disputes before not only foreign

courts but before all foreign and international tribunals.”

3. For example, in 1948, when Congress consolidated and

codified the prior legislation as section 1782, it eliminated the

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

in the proceedings and permitted district courts to designate

persons to preside at depositions “to be used in any civil action

pending in any court in a foreign country with which the United

States is at peace.” Intel, 542 U.S. at 248 (emphasis in original).

In 1949, Congress again broadened the statute by replacing “civil

action” with “judicial proceeding.” Id. Congress’ 1964 amendment

again broadened the scope, replacing “judicial proceeding . . .

in any court in a foreign country” with simply “proceeding in a

foreign or international tribunal.” Id. at 241.

5

Servotronics, 954 F.3d at 213 (emphasis in original); S.

Rep. No. 88-1580, at 3782 (1964), as reprinted in 1964

U.S.C.C.A.N. 3782 (“1964 Senate Report”) (explaining

that the amendments’ purpose was to “improve U.S.

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

United States in connection with proceedings before

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

revised section 1782(a) gave U.S. federal courts the broad

authority to provide evidentiary assistance to any “foreign

or international tribunal.” Such “tribunals” undoubtedly

include commercial arbitral tribunals.

I.

The Text of Section 1782(a) Includes Commercial

Arbitral Tribunals within the Phrase “Foreign or

International Tribunals”

Section 1782 assists tribunals and interested parties

in obtaining documents and testimony for use “in a

proceeding in a foreign or international tribunal.” 28

U.S.C. § 1782(a). Some courts have applied this statute

in a manner that is inconsistent with the text’s plain

meaning. Indeed, courts have twisted the meaning of

the phrase “foreign or international tribunal” to justify

including certain tribunals within its scope, such as socalled “state-sponsored” arbitral tribunals, and excluding

others, most notably commercial arbitral tribunals. There

is no basis for such a tortured construction, as Congress

imposed no limitations on what constitutes a “foreign or

international tribunal.”

A.

The Court Must Interpret Section 1782(a)

Based on its Unambiguous Plain Meaning

This is a straightforward case of statutory construction.

The Court must therefore “begin [its examination

6

of section 1782(a)] with the language of the statute.”

Intel, 542 U.S. at 255 (internal citation omitted). “In

determining the meaning of a statutory provision, [the

Court] look[s] first to its language, giving the words used

their ordinary meaning.” Artis v. District of Columbia,

138 S. Ct. 594, 603 (2018) (citation omitted) (internal

quotation marks omitted). When “the statute’s language

is plain, ‘the sole function of the courts’—at least where

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

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

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

omitted) (internal quotation marks omitted); see also

Hartford Underwriters Ins. Co. v. Union Planters Bank,

N.A., 530 U.S. 1, 13 (2000) (“It suffices that the natural

reading of the text produces the result we announce.”);

A ntonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 69 (2012) [hereinafter

Scalia, Reading Law] (“Interpreters should not be

required to divine arcane nuances or to discover hidden

meanings.”). When Congress uses broad or general

terms, such as “foreign or international tribunal,” they

are to be “accorded their full and fair scope,” and not

“arbitrarily limited,” since “the presumed point of using

general words is to produce general coverage—not to leave

room for courts to recognize ad hoc exceptions.” Scalia,

Reading Law 101; see also United States v. Furlong, 18

U.S. 184, 196 (1820) (“[G]eneral words . . . ought not . . .

to be restricted so as to exclude any cases within their

natural meaning.”). Accordingly, where a particular

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

should conclude the Court’s analysis. Intel, 542 U.S. at

267 (Scalia, J., concurring).

7

Moreover, courts should not presume that the

language of a statute is ambiguous. See United States v.

LaBonte, 520 U.S. 751, 757 (1997) (“We do not start from

the premise that [the statutory] language is imprecise.

Instead, we assume that in drafting legislation, Congress

said what it meant.”). Similarly, courts may not impose

their own limitations upon a plain and unambiguous

statute or resort to legislative history to upend its

common-sense construction. See, e.g., Food Mktg. Inst. v.

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

those of us who sometimes consult legislative history will

never allow it to be used to ‘muddy’ the meaning of ‘clear

statutory language.’”); Circuit City Stores, Inc. v. Adams,

532 U.S. 105, 119 (2001) (“As the conclusion we reach

today is directed by the text of § 1, we need not assess

the legislative history of the . . . provision.”); Garcia v.

United States, 469 U.S. 70, 78 (1984) (“We are not willing

to narrow the plain meaning of even a criminal statute

on the basis of a gestalt judgment as to what Congress

probably intended.”).

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

Commercial Arbitral Tribunals

Section 1782(a) provides that:

The district court of the district in which a

person resides or is found may order him to

give his testimony or statement or to produce a

document or other thing for use in a proceeding

in a foreign or inter national tr ibunal,

including criminal investigations conducted

before formal accusation. The order may be

made pursuant to a . . . request made, by a

8

foreign or international tribunal or upon the

application of any interested person . . . .

28 U.S.C. § 1782(a) (emphasis added).

Congress chose not to define the phrase “foreign or

international tribunal.” However, the text of the statute,

standing alone, plainly includes foreign commercial

arbitral tribunals, as they are tribunals within the

ordinary, common sense, and objective meaning of that

term. See FDIC v. Meyer, 510 U.S. 471, 476 (1994) (“In the

absence of . . . a definition, we construe a statutory term

in accordance with its ordinary or natural meaning.”).

The term “tribunal” has long been understood

to include arbitral tribunals, including commercial

arbitral tribunals. For example, in 1787, Blackstone’s

Commentaries on the Laws of England discussed

commercial arbitration and noted “the great use of these

peaceable and domestic tribunals, especially in settling

matters of account, and other mercantile transactions.”

3 W illiam Blackstone, Commentaries O n T he Laws

O f England 17 (A. Strahan, T. Cadell & D. Prince

eds., 10th ed., London 1787); see also 2 Joseph Story,

Commentaries On Equity Jurisprudence § 1457 at 686

(Boston, Little Brown and Co., 9th ed. 1866) (referring

to private commercial arbitrators as “tribunals”); Abdul

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

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

Similarly, over the last 100 years, this Court has

consistently referred to arbitrators as “tribunals.”4 See,

4. Some courts (see Republic of Kazakhstan v. Biedermann

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

9

e.g., Mitsubishi Motors Corp. v. Soler Chrysler Plymouth,

Inc., 473 U.S. 614, 638 (1985) (“[N]ational courts will need

to shake off the old judicial hostility to arbitration, and

also their customary and understandable unwillingness to

cede jurisdiction of a claim arising under domestic law to

a foreign or transnational tribunal.”) (emphasis added)

(citation omitted) (internal quotation marks omitted);

Bernhardt v. Polygraphic Co. of Am., 350 U.S. 198, 203

(1956) (referring to a commercial arbitration panel as a

“tribunal”); Red Cross Line v. Atl. Fruit Co., 264 U.S. 109,

121 n.1 (1924) (quoting Tobey v. Cty. of Bristol, 23 F. Cas.

1313, 1320 (D. Mass. 1845) (Story, J.)) (“[W]hen [courts

of equity] are asked to . . . compel the parties to appoint

arbitrators whose award shall be final, they necessarily

pause to consider whether such tribunals possess adequate

means of giving redress . . . .”).

The Circuit Courts of Appeal likewise have long

referred to arbitration “tribunals.” See, e.g., A.S. Abell

Co. v. Baltimore Typographical Union No. 12, 338 F.2d

190, 195 (4th Cir. 1964) (“Board of Arbitration is the proper

tribunal”); Kanmak Mills, Inc. v. Soc’y Brand Hat Co.,

236 F.2d 240, 244 (8th Cir. 1956) (referring to commercial

commercial arbitral tribunals were a new concept in the United

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

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

arbitral tribunals in the early 1900s. In any event, that point is

irrelevant. As Justice Scalia has remarked, “The meaning of rules

is constant. Only their application to new situations presents a

novelty . . . . ‘Suppose a legislator enacts that it shall be a crime

for anyone to “carry concealed on his person any dangerous

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

may include untold numbers of yet-to-be-invented harmful

devices.” Scalia, Reading Law 86.

10

AAA arbitration “tribunal”); Wilko v. Swan, 201 F.2d

439, 444 (2d Cir. 1953) (referring to a “‘court of competent

jurisdiction’ but also in any other competent tribunal, such

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

F.2d 111, 119 (6th Cir. 1953) (recognizing contract-based

arbitration panel as an “arbitration tribunal”); Hyland

v. Millers Nat’l Ins. Co., 91 F.2d 735, 737 (9th Cir. 1937)

(“tribunal of three arbitrators”); Emlenton Refining Co.

v. Chambers, 35 F.2d 273, 275 (3d Cir. 1929) (“fact finding

tribunal, such as arbitrators or a jury”); Fore River

Shipbuilding Co. v. S. Pac. Co., 219 F. 387, 395 (1st Cir.

1914) (“any tribunal, whether it was court or jury, judges

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

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

a settlement of their disputes out of court by a tribunal

of their own choosing”).

The use of the term “tribunal” by courts and scholars

when referring to arbitrations is consistent with the

dictionary definitions of that term before and after the

1964 amendments to the statute were adopted. See, e.g.,

M ax Radin, Law D ictionary (1955) (“A general word

equivalent to court, but of more extensive use in public and

international law”); Webster’s Third New International

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

of persons having authority to hear and decide disputes so

as to bind the disputants . . . : something that decides or

judges: something that determines or directs a judgment

or course of action”); Bryan A. Garner, A Dictionary Of

Modern Legal Usage (2d ed. 1995) (“(1) ‘a court or other

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

sense (1)—tribunal is broader than court and generally

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

functions . . . .”); Merriam-Webster’s Dictionary of Law

11

(1996) (“a court or forum of justice: a person or body

of persons having to hear and decide disputes so as to

bind the parties”); Scalia, Reading Law 72, 419, 423,

Appendix A (stating that, while dictionaries are “useful

and authoritative,” they “tend to lag behind linguistic

realities—so a term now known to have first occurred in

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

until 1950 or even 2000,” and listing the “Max Radin, Law

Dictionary,” “Bryan A. Garner, A Dictionary of Modern

Legal Usage” and “Merriam-Webster’s Dictionary of

Law” as three of “the most useful and authoritative”

dictionaries “that can be consulted to determine the

near-contemporaneous common meaning of words” in

the period 1951-2000). 5 See also 6 C.J.S. Arbitration and

Award, § 1, p. 152 (1937) (“The settlement of controversies

by arbitration is a legally favored contractual proceeding

of common law origin by which the parties by consent

submit the matter for determination to a tribunal of their

own choosing in substitution for the tribunals provided by

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

v. Shreveport-Texas League Baseball Corp., 128 F. Supp.

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

5. Legal dictionaries providing for narrower definitions—

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

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

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

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

amendments, explicitly removing the phrase “judicial proceeding

pending in any court” and “replac[ing] [it] with the phrase ‘in a

proceeding in a foreign or international tribunal.’” Intel, 542

U.S. at 248-49 (emphasis added); FedEx, 939 F.3d at 710 n.5 (“We

would be remiss if we did not note that both parties agree that

the meaning of ‘tribunal’ in § 1782(a) is not limited to ‘court’—the

narrower of the two definitions we will discuss.”) (emphasis in

original).

12

There can be no doubt that the meaning of the

term “tribunal” included commercial arbitral tribunals

in 1964, when the current language of the statute was

drafted and the statute itself was broadly amended.

Had Congress intended to materially narrow both

the meaning of the term “tribunal”—for example, to

governmental or intergovernmental tribunals only—and

the courts’ discretion, especially “at a time when it was

enacting liberalizing amendments to the statute, it would

have included statutory language to that effect.” Intel,

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

however, provided “categorical language” (Intel, 542 U.S.

at 267 (Scalia, J., concurring)) that a federal district court

may permit assistance to any “foreign or international

tribunal,” without otherwise limiting that term. The

term’s general and common sense meaning, therefore,

controls.

C.

Even if the Court were to Determine that the

Plain Meaning of “Foreign or International

Tribunal” is Ambiguous, there is No Clearly

Expressed Legislative Intent to Exclude

Arbitral Tribunals

If the Court determines that the plain meaning of

the term “foreign or international tribunal” is clear, its

analysis must stop there. If, however, the Court finds that

the term is ambiguous, the Court may look to “clearly

expressed legislative intent” to determine its meaning.

United States v. Turkette, 452 U.S. 576, 580 (1981); see

also Ron Pair, 489 U.S. at 242 (“The plain meaning of

legislation should be conclusive, except in the ‘rare cases

[in which] the literal application of a statute will produce

a result demonstrably at odds with the intentions of

13

its drafters.’”) (internal citation omitted). There is no

clearly expressed legislative intent to exclude arbitral

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

Senate Report accompanying the amended statute states

Congress’s intent to limit the types of tribunals that could

benefit from section 1782(a). Quite the opposite. Congress

emphasized that the “word ‘tribunal’ is used to make it

clear that assistance is not confined to proceedings before

conventional courts,” but also includes “administrative

and quasi-judicial proceedings . . . .” See 1964 Senate

Report, at 3788 (emphasis added). It further stated:

[I]n view of the constant growth of administrative

and quasi-judicial proceedings all over the

world, the necessity for obtaining evidence

in the United States may be as impelling in

[these] proceedings . . . as in proceedings

before a conventional foreign court. Subsection

(a) therefore provides the possibility of U.S.

judicial assistance in connection with all such

proceedings. Finally, the assistance made

available by subsection (a) is also extended to

international tribunals and litigants before

such tribunals.

Id. (emphasis added); see also Hans Smit, The Supreme

Court Rules on the Proper Interpretation of Section 1782:

Its Potential Significance for International Arbitration,

14 A m. Rev. Int ’l A rb. 295, 314 (2003) [hereinafter Smit,

The Supreme Court Rules] (“[T]he broad and general

language [Congress] did use clearly covered all tribunals

that exercised ‘judicial or quasi-judicial’ authority and

the legislative history made clear the intended plain

meaning.”) (emphasis added).

14

The Senate thus explained that the 1964 amendments

were intended to “clarif[y] and liberaliz[e] existing

U.S. procedures for assisting foreign and international

tribunals and litigations” by “replac[ing], and eliminat[ing]

the undesirable limitations of, the assistance extended by”

the predecessor statutes. Id.

The legislative intent to apply the phrase “foreign

or international tribunal” liberally was confirmed by

Hans Smit, the principal author of the 1964 amendments,

which were accepted wholesale by Congress. According

to Professor Smit, the “legislative history puts beyond

doubt that the assistance to international tribunals for

which Section 1782 provides also extends to private

international tribunals. … [Such] history demonstrates

overwhelmingly that the purpose of Section 1782 was to

make the assistance for which it provides available on

the most liberal and comprehensive basis.” Smit, The

Supreme Court Rules, at 305-06 (emphasis added); Hans

Smit, American Judicial Assistance to International

Arbitral Tribunals, 8 A m . Rev. I nt ’l A rb., 153, 157

(1997) [hereinafter Smit, American Judicial Assistance]

(“Clearly, private arbitral tribunals come within the term

the drafters used. This is also confirmed by the legislative

history.”).

The Court has recognized Congress’s intent to broaden

the reach of section 1782(a) over time. In Intel, the Court

stressed that “Congress substantially broadened the

scope of assistance federal courts could provide for foreign

proceedings” and “the legislative history . . . reflects

Congress’ recognition that judicial assistance would be

available ‘whether the foreign or international proceeding

or investigation is of a criminal, civil, administrative, or

other nature. … Nothing suggests that this amendment

15

was an endeavor to rein in, rather than to confirm . . .

the broad range of discovery authorized in 1964.” Intel,

542 U.S. at 247-48, 259 (emphasis in original removed,

new emphasis added); see also FedEx, 939 F.3d at 727-28

(“Assuming that legislative history is a helpful aid in some

cases, . . . we do not find that it contradicts our conclusion

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

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

applicability.”).

There also exists a “well-settled doctrine of this Court

to read a statute, assuming that it is susceptible of either

of two opposed interpretations, in the manner which

effectuates rather than frustrates the major purpose of

the legislative draftsmen.” Shapiro v. United States, 335

U.S. 1, 31 (1948). Congress amended section 1782(a) in

1964 to expand judicial assistance to proceedings before

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

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

categorical limitations [petitioner] would place on the

statute’s reach.”). Congress used such broad language

to ensure that courts had ample discretion to provide

section 1782(a) assistance where needed. Id. at 247,

264 (“[A]s the 1964 Senate Report suggests, a court

presented with a § 1782(a) request may take into account

the nature of the foreign tribunal [and] the character of

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

were to exclude commercial arbitral tribunals from the

statute’s scope, it would not only frustrate Congressional

intent as manifested by the only aspect of the legislative

history that is clear,6 but also trample this Court’s prior

6. To be sure, the Intel Court’s “caution” to the district courts

that section 1782(a) applications need not be granted further aligns

with the Court’s refusal to impose any “categorical limitations”

16

admonition against imposing categorical limitations on

the statute’s scope. Id. at 255.7

II. The Distinction Drawn by Cour ts between

“Governmental” or “State Sponsored” Arbitrations

and “Private” Arbitrations is False and, in any

Event, is Irrelevant under Section 1782(a)

Some courts have distinguished between so-called

“private” arbitral tribunals and “public,” “governmental,”

or “state-sponsored” arbitral tribunals. 8 According to

on the statute’s scope and affirms the considerable discretion

accorded the district courts to determine whether particular

“tribunals” are of a sufficient nature and character to be permitted

assistance under the statute. See Intel, 542 U.S. at 247; In re

Hallmark Capital Corp., 534 F. Supp. 2d 951, 956 (D. Minn. 2007)

(“[T]he better approach to this issue is to reject any inflexible

rule that would categorically exclude all private arbitrations from

the definition of ‘tribunal’.”); Smit, The Supreme Court Rules, at

306 (“Excluding [private international arbitral tribunals] from

the reach of Section 1782 would . . . produce a result exactly the

opposite of what the reformers intended, for it intended that this

assistance be available to all tribunals whether created under

foreign law or pursuant to an international agreement.”).

7. A broad interpretation of section 1782(a) would certainly

be consistent with the “liberal federal policy favoring arbitration.”

Howsam v. Dean Witter Reynolds, 537 U.S. 79, 83 (2002); see also

Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1630 (2018); Am. Express

Co. v. Italian Colors Rest., 570 U.S. 228, 237-39 (2013).

8. See, e.g., Fund for Protection of Investor Rights in Foreign

States v. AlixPartners, LLP, 5 F.4th 216, 225 (2d Cir. 2021) (reciting

prior holdings that section 1782 “intended to cover governmental or

intergovernmental arbitral tribunals and conventional courts and

other state-sponsored adjudicatory bodies” but not “international

arbitral panels created exclusively by private parties” or “arbitral

bod[ies] established by private parties”); In re Servotronics, Inc.,

17

those courts, that distinction is meaningful because

“private” arbitral tribunals “deriv[e] [their] authority not

from the government, but from the parties’ agreement,”

whereas so-called “public” tribunals are created under

the authority of the state. See Servotronics, 954 F.3d

at 213 (ultimately finding this distinction unpersuasive);

Alixpartners, 5 F.4th at 227 (“[T]he arbitral panel in

this case derives its adjudicatory authority from the

Treaty, . . . rather than an agreement between purely

private parties or any other species of private contract.”).

This perspective sets up a false distinction and reflects

a fundamental misunderstanding of international

arbitration.

A.

Commercial Arbitration Operates Under

National and International Legal Authority

The right to resolve disputes and accord binding legal

authority to such resolutions is inherently sovereign.

That is why courts exist. For centuries, however, states

have recognized the utility of permitting parties to

arbitrate their disputes outside of the courts and have

enacted laws defining what disputes may be arbitrated,

authorizing judicial assistance to the arbitral process, and

giving legal effect to the results of those quasi-judicial

proceedings. Indeed, virtually every modern jurisdiction

that permits arbitration has enacted one or more of

those laws. Thus, as Professor Smit remarks, “private

2019 WL 9698535, at *4 (N.D. Ill. Apr. 22, 2019) (“state-sponsored

arbitral bodies” might constitute “foreign or international

tribunal[s]” under Section 1782(a)) (citation omitted) (internal

quotation marks omitted). But see Servotronics, 954 F.3d at 213

(finding that, even if this more restrictive definition were applied,

it can nevertheless include private arbitral tribunals).

18

international [arbitral] tribunals . . . have been accorded

by the body politic the power to adjudicate controversies.”

Smit, American Judicial Assistance, at 156. Indeed,

“[t]o the extent that [commercial arbitral tribunals] are

created under foreign law, they are foreign tribunals; and

to the extent they are created pursuant to international

agreement, they are international tribunals.” Smit, The

Supreme Court Rules, at 305 (emphasis added); see also

W. Michael Reisman & Brian Richardson, The Present –

Commercial Arbitration as a Transnational System of

Justice: Tribunals and Courts: An Interpretation of the

Architecture of International Commercial Arbitration,

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

assume . . . that arbitration is a free-standing procedure,

conceptually and politically quite independent of the

apparatus of the state. But international commercial

arbitration, no less than arbitration within nation-states,

while conducted in the sphere of private law, is a public legal

creation whose operation and effectiveness is inextricably

linked to prescribed actions by national courts.”; “states,

through their courts, . . . play a role before the arbitration

commences, during the arbitration, or after an award has

been rendered.”) (emphasis in original).

In the United States, for example, the Federal

Arbitration Act applies to all arbitrations that involve

interstate commerce and each of the 50 states has its own

arbitration laws that govern purely intra-state disputes.

See 9 U.S.C. § 2; see e.g., N.Y. C.P.L.R. §§ 7501-7515

(McKinney 2018). In addition, the United States has

bound itself to the international standards set forth in the

1958 Convention on the Recognition and Enforcement of

Foreign Arbitral Awards (the “New York Convention”), a

treaty that obligates contracting states to recognize and

19

enforce foreign arbitration agreements and awards.9 It

is for these reasons that the Fourth Circuit, in recently

accepting that the term “foreign or international tribunal”

encompasses international commercial arbitral tribunals,

recognized that:

[A]rbit ration in the Unit ed Stat es is a

cong ressionally endorsed and reg ulated

process that is judicially supervised. And it

was developed as a favored alternative to the

judicial process for the resolution of disputes.

Thus, contrary to [Respondent’s] general

assertion that arbitration is not a product of

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

law, it clearly is.

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

In Ger many, the legal “seat” of the pending

arbitration between ZF Auto US and Luxshare in

this case (see Joint Appendix of Petitioners at 93, ZF

Automotive US, Inc., Gerald Dekker, and Christophe

Marnat v. Luxshare, Ltd., No. 21-401 (U.S. Sup. Ct.

Jan. 24, 2022)), commercial arbitrations are authorized

and governed by the German Arbitration Act 1998,

largely incorporating the provisions of the UNCITRAL

Model law, which grants authority to arbitral tribunals

to resolve disputes falling within its jurisdiction and

legislates matters covering almost all aspects of the

9. The New York Convention is one of the most widely

adopted treaties in the world, with 169 state parties at present.

June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38, as reprinted in 9

U.S.C. § 201.

20

arbitral proceedings, from their commencement through

the enforcement of arbitration awards.10 Any commercial

arbitration seated in Germany, including the one in this

case, is conducted in accordance with the rules and

procedures set out in the German Arbitration Act 1998.

The same is true of virtually all arbitrations conducted

in juridical “seats” worldwide.11

In the international context, arbitrations are

governed by both the domestic arbitration laws of the

countries in which they are seated and the standards

set by the international community through the New

York Convention. The Convention reflects a consensus

among its 169 contracting states that foreign arbitration

agreements and awards must be enforced, subject to

limited and discretionary exceptions. Its very purpose

was to create universal standards governing the treatment

of arbitration agreements and awards and to ensure

inter-state consistency. Through this Convention, the

international community has created—and each signatory

state has accepted—an international legal regime

10. For example, the German Arbitration Act 1998 covers,

inter alia, the scope, form and enforceability of arbitration

agreements (sections 1030-1032), the powers of the courts in

relation to provisional relief, evidentiary assistance and the

conduct of the arbitration proceedings more generally (sections

1033, 1050), the form, substance, timing and legal effect of the

tribunal’s award(s) (sections 1054-55), and the powers of the courts

to enforce or set aside the tribunal’s award(s) (sections 1059-61).

Zivilprozessordnung [ZPO] [Code of Civil Procedure], § 1025-1066

[hereinafter German Arbitration Act 1998].

11. For a list of national arbitration laws in states

that are parties to the New York Convention, see https://

newyorkconvention1958.org/.

21

authorizing, recognizing, and enforcing commercial

arbitrations.

Thus, when commercial parties include an arbitration

agreement in their contracts, they are electing to resolve

disputes within the legal framework authorized by the

juridical “seat” of arbitration, subjecting themselves to

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

including the authority to annul or set aside final arbitral

awards—and accepting that any resulting awards may be

enforced in accordance with the international standards

set by the New York Convention.

B. Ef for t s t o Disting uish Inve st or- St at e

Arbitration from Commercial Arbitration for

Purposes of Section 1782(a) Fail

Some courts have held that section 1782(a) assistance

is available to support investor-state arbitrations because

these arbitrations are said to be “state-sponsored” or

“government-sanctioned.” See, e.g., Alixpartners, 5

F.4th at 226-7 (finding section 1782(a) applicable to an

investment treaty arbitration tribunal because it “derives

its adjudicatory authority from the ‘intervention or license

of any government to adjudicate cases arising from certain

varieties of foreign investment’” and “the rules that will

govern the dispute were developed by UNCITRAL,

an international body.”) (internal citation omitted).12

12. The UNCITRAL rules may be used in both commercial

and treaty-based arbitrations and are not materially different than

the arbitration rules promulgated by other arbitral institutions.

Their use, therefore, does not impart upon the tribunal any special

state or international sponsorship (contra Ukrnafta v. Carpatsky

Petroleum Corp., 2009 WL 2877156, at *4 (D. Conn. Aug. 27, 2009)

22

Such holdings are wrong, and efforts to distinguish

between commercial and investor-state arbitrations are

unpersuasive.

Investor-state arbitration is a mechanism by which

states have granted private parties a direct right of

action to bring claims against states in arbitration for

violations of certain defined rights. Most commonly,

those rights are enumerated in bilateral or multilateral

treaties. In these cases, private investors are effectively

third-party beneficiaries of the treaties, thus enabling

them to directly enforce those rights against a breaching

state. In other cases, however, the right to initiate an

investor-state arbitration is established by statute or is

contained in a contract between the state and a private

party. In each case, the state defines the scope of disputes

that may be arbitrated, provides the legal framework for

the arbitration, and adopts the post-award enforcement

regime that will be applicable—the precise framework

applicable to commercial arbitrations. For example,

investor-state arbitrations conducted under the auspices

of the International Centre for Settlement of Investment

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

an enforcing state from exercising any discretionary or

review authority. By contrast, investor-state arbitrations

conducted outside of the ICSID system are subject to

enforcement and review under the New York Convention

(“an arbitration panel governed by international law, namely, the

UNCITRAL rules of arbitration, constitutes a ‘foreign tribunal’

for the purposes of Section 1782”)), and it certainly does not mean

that the tribunal using those rules “thus retains affiliation with . . .

foreign States,” as found by the Second Circuit. See Alixpartners,

5 F.4th at 226 (2d Cir. 2021).

23

rules—the same rules applicable to so-called “private”

commercial arbitrations.

Regardless of whether an investor-state arbitration

is commenced pursuant to treaty, statute, or contract,

it is the product of an agreement between the state and

the private investor. Each party consents to submit

their disputes to arbitration and any such arbitration is

largely indistinguishable from a commercial arbitration.

In asking this Court in Intel to reject as “clearly wrong”

the idea that section 1782 “exclude[s] private arbitral

tribunals” (Smit, The Supreme Court Rules, at 304),

Professor Smit addressed this very point:

[Investment treaties] are, in effect, offers to

arbitrate by the state of investment that can

be accepted by, and thus become binding on,

the investor. But, once the investor opts for

arbitration, the situation of the parties is the

same as that under an arbitration agreement

of the same content. There is therefore no

difference of substance between arbitral

proceedings under ordinar y arbitration

agreements and those commenced under

bilateral investment treaties that would justify

treating the former differently as far as Section

1782 is concerned. Excluding international

arbitral tribunals organized pursuant to

bilateral investment treaties from the reach of

Section 1782 would clearly produce the most

untoward result. And if they are not excluded

from its reach, no plausible argument can be

advanced for excluding international arbitral

tribunals not created pursuant to bilateral

investment treaties from its reach.

24

Id., at 310.

Moreover, commercial arbitrations and investorstate arbitrations both share key characteristics that

make it inappropriate to differentiate them for purposes

of section 1782(a). The tribunals in both types of

proceedings are formed by private party appointment

of arbitrators. Both may involve states as parties. Both

derive their authority from national legislation and a

form of international agreement (as discussed above).

Both provide for a final and binding resolution of the

parties’ disputes through the issuance of awards capable

of worldwide enforcement pursuant to treaty. And each

proceeding is the product of a state-sanctioned acceptance

of arbitration as a valid and suitable means of resolving

disputes.

As such, even if this Court were to find relevant some

role of “state-sponsorship” in the arbitration to bring it

within the ambit of section 1782(a), arbitrations derived

from private party contract and those from bilateral or

multi-lateral investment treaties would both meet such

a test.

III. The Court’s Functional Determinations in Intel

are Sufficient to Conclude that All Arbitral

Tribunals are Included in the Phrase “Foreign or

International Tribunal”

Even were the Court not to agree that the plain

language of section 1782(a) encompasses commercial

arbitral tribunals, the Court’s prior functionality

assessment in Intel is nonetheless determinative.

25

In Intel, the Court was asked to decide whether the

Directorate-General for Competition of the European

Commission was a “tribunal” within the meaning of section

1782(a). Cognizant of the statute’s history of expanding

and liberalizing its application, the Court declined to

impose a “categorical bar” on the types of tribunals

encompassed by the statute. Intel, 542 U.S. at 246 n.15

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

to ready classification in domestic terms, Congress left

unbounded by categorical rules the determination whether

a matter is proceeding ‘in a foreign or international

tribunal.’”). Rather, it focused on the nature of the specific

tribunal’s function.

The Court held that there was “no warrant to exclude”

an entity from section 1782(a)’s ambit to the extent it

“exercises quasi-judicial powers” or “acts as a firstinstance decisionmaker.” Intel, 542 U.S. at 258 (emphasis

added) (citing Advanced Micro Devices, Inc. v. Intel Corp.,

292 F.3d 664, 667 (9th Cir. 2002)) (remarking that “the

language used by Congress in Section 1782 is broad and

inclusive” and “the legislative history surrounding the

adoption of Section 1782 broadly [] include[s] ‘bodies of a

quasi-judicial or administrative nature’ . . . .”) (internal

citation omitted). The Court thus focused on the tribunal’s

ability to bind the parties before it and to render a

decision capable of resolving the underlying dispute. Id.,

also at 246-47 (“the Commission is a § 1782(a) ‘tribunal’

when it acts as a first instance decisionmaker”); see also

FedEx, 939 F.3d at 725 n.9 (“The Supreme Court seems

to have primarily focused on the decision-making power

of the Commission—and Congress’s substitution in 1964

of the broad phrase ‘foreign or international tribunal’

for the specific phrase ‘judicial proceeding in a foreign

26

country’—in reaching its conclusion that the Commission

was a ‘tribunal’”; “the DFIC-LCIA [arbitration] panel is

a ‘first-instance decisionmaker’ with the power to bind

the parties—an exercise of ‘quasi-judicial powers’.”)

(internal citation omitted); Fonseca v. Blumenthal, 620

F.2d 322, 323 (2d Cir. 1980) (per curiam) (stating that

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

in the section 1782 context).13

Thus, while this Court did not specifically address

whether private arbitral panels are “tribunals,” it

provided sufficient guidance to determine that arbitral

panels are “tribunals” within the statute’s scope. See,

e.g., FedEx, 939 F.3d at 723 (“Although the Supreme Court

has not addressed the particular question facing us here,

its decision in Intel did address the scope of § 1782(a)’s

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

determined that § 1782(a) provides for discovery assistance

in non-judicial proceedings.”) (emphasis added).

Arbitral tribunals—commercial and investor-state

tribunals alike—are first-instance decisionmakers

performing a specific adjudicatory function, equivalent

in myriad ways to conventional courts. They have the

legal authority (as discussed in section II, above) to direct,

receive and assess evidence, issue orders, resolve disputes

through jurisdictional and liability determinations, award

damages, and render awards that are final and binding on

13. Critically, this Court’s functionality assessment in no way

relies on whether the tribunal has any “governmental control or

influence over the [relevant] proceedings.” Brief for Petitioners

at 34, AlixPartners, LLP, et al. v. The Fund for Protection of

Investor Rights in Foreign States, No. 21-518 (U.S. Sup. Ct. Jan.

24, 2022).

27

the parties. The final awards of both investor-state and

commercial tribunals are subject to review for annulment

purposes by the courts in the “seat” of arbitration

(except, as explained, for ICSID cases) and by courts

in jurisdictions where those awards are enforced. In

each case, the reviewing court can determine whether

the arbitral tribunal had jurisdiction over the parties,

acted outside the scope of its authority, materially

deprived a party of due process, or rendered an award

that offends public policy. Indeed, awards issued by

investor-state arbitrations conducted outside of the selfcontained ICSID regime are governed by the New York

Convention and are subject to the same level of judicial

review as commercial arbitration awards14 —a level of

judicial review that far exceeds that available to ICSID

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

14. The scope of such review is defined by international treaty

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

“subject matter of the difference is not capable of settlement by

arbitration under the law of that country” or whether the “award

would be contrary to the public policy of that country.” New York

Convention, Articles V(2)(a)-(b). Further, as mentioned, countries

who are signatories to the New York Convention, including

the United States and Germany, have enacted implementing

legislation permitting courts to review arbitral awards rendered

within their borders for purposes of set aside applications and to

assess whether to recognize and enforce said awards under the

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

Act 1998, § 1059.

15. While this review does not encompass a de novo

reconsideration of the merits of the arbitral award (including the

arbitrators’ determinations of fact and law), courts will perform a

de novo review for certain jurisdictional decisions. In any event,

there is no basis to conclude that a full substantive review was

either necessary or warranted by Congress in its liberalization

28

permitted the arbitration to go forward, the national

courts of the United States will have the opportunity at

the award-enforcement stage to ensure that the legitimate

interest in the enforcement of the antitrust laws has been

addressed.”); Hall St. Assocs. v. Mattel, Inc., 552 U.S. 576,

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

for expedited judicial review to confirm, vacate, or modify

arbitration awards”; “[W]e do not purport to say that

[FAA §§ 10 and 11] exclude more searching review based

on authority outside the statute as well . . . .”); FedEx, 939

F.3d at 710 n.11 (“[R]eview of awards under the FAA is

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

Those reviews are, moreover, appealable to the Circuit

Courts of Appeal and, potentially, to the Supreme Court.

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

In any event, despite the reliance placed by some

courts on the judicial reviewability of a tribunal’s

of the statute. See Consorcio Ecuatoriano v. JAS Forwarding

(USA), 685 F.3d 987, 990 (11th Cir. 2012), vacated and superseded

747 F.3d 1262 (11th Cir. 2014) (“[J]udicial review of arbitration

awards . . . is focused primarily on addressing defects in the

arbitration proceeding, not on providing a second bite at the

substantive apple that would defeat the purpose of electing to

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

are only reviewable for limited reasons does not undermine the

fact that there exists judicial reviewability of such awards for

purposes of assessing whether a tribunal may be included within

section 1782(a). Id. at 996 (“[W]e can discern no sound reason to

depart from the common sense understanding that an arbitral

award is subject to judicial review when a court can enforce the

award or can upset it on the basis of defects in the arbitration

proceeding or in other limited circumstances.”).

29

decision,16 “Intel does not say that a non-judicial ‘tribunal’

must be subject to judicial review.” FedEx, 939 F.3d at 710

n.11 (emphasis added).17 In fact, reviewability was not even

discussed in the section of the Intel decision determining

whether the Commission was a “tribunal.” See Intel, 542

U.S. at 258 (section B).

Critically, the Court in Intel recognized, albeit in

dicta, that “arbitral tribunals” fall within the meaning

of “foreign or international tribunal” for purposes

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

question of which entities “qualify as tribunals,” id. at

257-58, the Court quoted approvingly Professor Smit,

whose contemporaneous written work confirms that a

private “arbitral tribunal” constitutes a “tribunal” under

the revised statute. Id. (quoting Smit, International

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

Rev. 1015, 1026-27, nn. 71, 73 (1965) (“[t]he term ‘tribunal’

embraces all bodies exercising adjudicatory powers,

and includes investigating magistrates, administrative

and arbitral tribunals, and quasi-judicial agencies, as

well as conventional civil, commercial, criminal, and

administrative courts”; “The new legislation . . . authorizes

assistance in aid of international arbitral tribunals.”)

(emphasis added)). It is not surprising that the majority

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

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

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

the European Commission was a quasi-adjudicative or purely

executive actor, thus necessitating a discussion of whether its

decisions had some form of judicial review. Such functional

w rangling is unnecessary here, as arbitral tribunals are

indisputably adjudicative.

30

cited Professor Smit’s section 1782 commentary with

approval no less than six times, given the critical role

he played in its 1964 revision.18 It is in fact difficult to

imagine what better evidence—outside the statute’s plain

language—one need muster to put this issue to rest or,

for that matter, what “quasi-judicial” body could meet

the definition of “tribunal” in section 1782(a) if arbitral

tribunals (including commercial arbitral tribunals) are

excluded.

18. In fact, the late Professor Smit—whose multiple

commentaries were cited repeatedly by the Intel Court (id. at 248

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

Intel adopted the definition of “tribunal”); id. at 261, 262 nn.12,

14 (citing a 1994 article by Smit); id. at 262 n.13, 266 n.17 (citing

a 1998 article by Smit))—was more than a leading scholar in his

field. He was the Reporter to both the Advisory Committee to the

United States Commission on International Judicial Assistance

and the Commission itself as well as the Director of the Columbia

Law School Project on International Procedure, which developed

the revised legislation given Congress’s failure to fund either the

Committee or Commission. Smit, American Judicial Assistance,

at 154. The late Justice Ginsburg, who wrote the Intel majority

decision (and had at one time been an Associate Director of the

Columbia Project (id. at 154)), also confirmed while sitting as a D.C.

Court of Appeals judge that Professor Smit was “the dominant

drafter of, and commentator on, the 1964 revision of 28 U.S.C.

§ 1782.” In re Letter of Request from Crown Prosecution Serv.,

870 F.2d 686, 689 (D.C. Cir. 1989) (R.B. Ginsburg, J.); see also In

re Euromepa S.A., 51 F.3d 1095, 1099 (2d Cir. 1995) (recognizing

Professor Smit as the “chief architect of Section 1782”).

31

CONCLUSION

For the foregoing reasons, FedArb respectfully

suggests that this Court determine that foreign or

international commercial arbitral tribunals are included

within the categories of “foreign or international tribunal”

permitted access to section 1782(a).

Respectfully submitted,

Henry S. Weisburg

Counsel of Record

Christopher M. Ryan

Jonathan J. Tompkins

Jesse D.H. Sherrett

Shearman & Sterling Llp

599 Lexington Avenue

New York, New York 10022

(212) 848-4000

hweisburg@shearman.com

Counsel for Amicus Curiae