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28 U.S.C. § 1782 permits courts to order a person “to give [ ] testimony . . . or to produce a document . . . for use in a proceeding in a foreign or international tribunal . . . .” Prior to 2004, § 1782 was rarely used. In fact, from 1964 to 2004 the courts decided only 94 applications.1
But the United States Supreme Court’s decision in Intel Corporation v. Advanced Micro Devices, Inc.2 coupled with the continuing growth of international commerce created a valuable international dispute resolution tool that parties have employed with frequent success. Section 1782 is facile, with its true complexity turning, in large part, on the definition of “tribunal” and a split among courts on application of that term.
At issue in Intel was Advanced Micro Devices’ (“AMD”) request for a court order directing Intel to produce documents relating to an action brought in Alabama (“Alabama Documents”). AMD had filed an antitrust complaint with the Directorate-General for Competition of the European Commission (“European Commission”). AMD sought the Alabama Documents in aid of the antitrust complaint before the European Commission. Among the questions the United States Supreme Court was called upon to address in Intel was whether the documents AMD sought were “for use in a foreign or international tribunal.” The Supreme Court had little difficulty in concluding that the European Commission, to the extent it acts as a first-instance decision maker, fell with the ambit of § 1782. Relying on that section’s legislative history, the Supreme Court observed that in 1958, when the Rules Commission was established, Congress “instructed the Rules Commission to recommend procedural revisions ‘for the rendering of assistance to foreign courts and quasi-judicial agencies.’”3 The Supreme Court, quoting from scholarly commentary by Hans Smit, further stated in dicta, that “[t]he term ‘tribunal’ . . . includes investigating magistrates, administrative and arbitral tribunals, and quasi-judicial agencies, as well as conventional civil, commercial, criminal, and administrative courts.”4 The inclusion of the words “arbitral tribunals” in the Hans Smit definition of “tribunals” is the genesis of the division among the courts of the United States as to whether § 1782’s use extends to private international arbitration.
Before the Supreme Court decided Intel, the Second Circuit in Nat’l Broad. Co. v. Bear Stearns & Co., Inc.5 held that § 1782 does not provide a vehicle for obtaining discovery in a private international arbitration. The Fifth Circuit in Republic of Kazakhstan v. Biedermann Int’l,6 reached a similar conclusion. Following Intel, the Fifth Circuit revisited the issue in El Paso Corporation v. La Comision Ejecutiva Hidroelectrica del Rio Lempa7 and held in an unpublished per curium opinion that nothing in the Intel decision affected the analysis of the Biedermann court. In reaching this conclusion, the Fifth Circuit remarked that the Supreme Court never considered the question of whether private arbitral tribunals fell within the statute:
The question of whether a private international arbitration tribunal also qualifies as a “tribunal” under § 1782 was not before the Court. The only mention of arbitration in the Intel opinion is in a quote in a parenthetical from a law review article by Hans Smit. That quote states that “the term ‘tribunal’ ... includes investigating magistrates, administrative and arbitral tribunals, and quasi-judicial agencies, as well as conventional civil, commercial, criminal, and administrative courts.” Nothing in the context of the quote suggests that the Court was adopting Smit’s definition of “tribunal” in whole.8
Thus the Second and Fifth Circuits aligned to hold that § 1782 could not be used in aid of private international arbitration.
Not all federal appellate courts agree. In 2019, the Sixth Circuit took a contrary view in Abdul Latif Jameel Transportation Co. v. FedEx.,9 finding that “tribunal” included a private arbitral tribunal. To reach this decision, the Sixth Circuit relied on “several reputable legal dictionaries”10 and criticized the pre-Intel decisions as “turn[ing] to legislative history too early in the interpretations process.”11 The Sixth Circuit further noted that even if it were to consider the legislative history, “what the statements make clear is Congress’s intent to expand § 1782(a)’s applicability.”12
Similarly in March of 2020, in Servotronics, Inc. v. Boeing Co.,13 the Fourth Circuit joined the Sixth Circuit in holding that a tribunal established pursuant to the rules of the Chartered Institute of Arbitrators (CIArb) constituted a “tribunal” within the meaning of § 1782. The Court reasoned that the current version of the statute manifested Congressional intent to provide “U.S. assistance in resolving disputes before not only foreign courts but before all foreign and international tribunals.” The Court additionally compared the Federal Arbitration Act with the UK Arbitration Act of 1996, observing arbitration in both the United States and England is a regulated process with judicial supervision.
Further complicating the availability of § 1782 is that courts within the same judicial district may not be in agreement. A prime example is two decisions, each decided in the Southern District of New York but by different judges. In In re Children’s Investment Fund Foundation (UK),15 the district court held in January 2019 that a tribunal established pursuant to the rules of the London Court of International Arbitration (LCIA) is a “foreign or international tribunal” for purposes of § 1782. The court acknowledged that since Bear Stearns, the Second Circuit has not considered whether a private arbitration satisfies the “for use” requirement, but was persuaded by the reasoning of other district courts, as well as an earlier Southern District of New York decision holding that § 1782 is applicable to private arbitration. One month later, in February 2019, a judge in another district court for the Southern District of New York, applying Bear Stearns, held in In re Application of Hanwei Guo17 that a China International Economic and Trade Arbitration Commission (CIETAC) arbitration did not qualify as a “foreign or international tribunal” within the meaning of § 1782. The court observed that although CIETAC was originally established in 1954 by an entity of the Chinese government, today it is a non-governmental organization functioning independently in handling disputes.18
Most recently, on 13 April 2020, a Delaware district judge in In re Application of STORAG ETZEL GMBH19 concluded that private arbitration tribunals do not fall within the scope of § 1782.
The court acknowledged the word “tribunal” was ambiguous and resolved that ambiguity by focusing on authority relied upon in Intel:
The 1964 amendment that added “tribunal” to § 1782 (a) was drafted at Congress’s request by the Commission on International Rules of Judicial Procedure (Rules Commission). Congress created the Rules Commission in 1958 “to recommend procedural revisions ‘for the rendering of assistance to foreign courts and quasi-judicial agencies.’” Intel, 542 U.S. at 257-58 (quoting§ 2, 72 Stat. 1743) (emphasis added by Supreme Court). Thus, it is reasonable to conclude that Congress understood when it adopted the Rules Commission’s revisions to § 1782(a), see id. at 248, that those revisions extended only to courts and government agencies, not to private arbitral bodies.20
Given the wide divergence of court decisions, it is inevitable that the Supreme Court will be called upon to answer definitively whether the word “tribunal” includes a private arbitration tribunal, thereby obviating the inherent inequities applicants face. Until that time, the threshold viability of a § 1782 application will continue to be wholly dependent upon the court in which the application is filed. For this reason, in international commercial arbitration, the place where the application for discovery is made remains crucially important.
1 “Based on a Westlaw search of cases from 1964, when the statute was amended, to 2004, when Intel was decided, there . . . [were] 94 reported cases addressing Section 1782 requests in forty years.” Roger P. Alford, Ancillary Discovery to Prove Denial of Justice, 53 VA. J. INT’L L., 155 n.149 (2012).
2 Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, (2004).
3 Id. at 257-58..
4 Id. at 258.
5 165 F.3d 184 (2d Cir. 1998).
6 168 F.3d 880 (5th Cir. 1999).
7 341 Fed. Appx. 31 (5th Cir. 2009).
8 Id. at 34.
9 939 F.3d 710 (6th Cir. 2019).
10 Id. at 720.
11 Id. at 726.
12 Id. at 728 (emphasis in original).
13 953 F.3d 209 (4th Cir. 2020).
15 In re Children’s Investment Fund (UK), 363 F. Supp. 3d 361 (S.D.N.Y. 2019).
16 Id. at 369.
17 18-MC-561, 2019 WL 917076 (S.D.N.Y. Feb. 25, 2019). The case is on appeal. Argument was heard 28 February 2020. See Cause No. 19-781, Hanwei Guo v. Deutsche Bank Securities Inc., Second Circuit Court of Appeals.
18 Id. at *2.
19 2020 U.S. Dist. LEXIS 63940.
20 Id. at *6.