United States: Looking For Consensus In Federal Court Discovery For Private Foreign Or International Arbitral Proceedings

Since the 1948 enactment of 28 USC § 1782 in the United States, no consensus has emerged as to the availability of federal court discovery to parties in private foreign or international arbitral proceedings. This year, within months of one another, six federal courts have issued rulings that are widely inconsistent on the availability of section 1782 discovery. The courts have ruled that a proceeding before a private international arbitral tribunal is eligible for section 1782 discovery; that, categorically, no such discovery is available; that the definition of private arbitral tribunal applies to CIETAC; and that discovery is available by virtue of a party’s parallel pursuit of discovery through foreign civil proceedings. As these cases demonstrate, recent US court decisions have brought no predictability, let alone certainty, to the subject Congress, on the other hand, could and should amend the statute so as to include private tribunals in the scope of section 1782.  This article discusses the case law’s state of disarray; proposes a legislative solution; considers the proposed amendment’s merits; and advocates for Congress to act.

INTRODUCTION

Since the enactment of 28 USC § 1782 in 1948, no consensus has emerged as to the availability of federal court discovery to parties in private foreign or international arbitral proceedings. Decisions by five district courts and one circuit court this year are illustrative within months of one another, the courts ruled (i) that proceedings under the rules of the London Court of International Arbitration (LCIA) and those of its collaboration with the Dubai International Financial Centre (DIFC LCIA) are eligible for US discovery despite the status of the arbitral panels as a private tribunals¹; (ii) that, categorically, no US discovery is available to parties in international private arbitral proceedings²; (iii) that the definition of private arbitral tribunal, and the bar to discovery, is applicable to the China International Economic and Trade Arbitration Commission (CIETAC)³; and that (iv) discovery is available by virtue of a party’s parallel pursuit of discovery through a foreign civil proceeding.⁴ These cases demonstrate the wheel-of-fortune like nature of the case law applying section 1782 to private foreign or international arbitral proceedings.

OPENING THE DOOR TO DISCOVERY FOR PRIVATE ARBITRAL TRIBUNALS

Courts have long struggled with the question of whether arbitral proceedings under the auspices of a foreign or international⁵ private institutions are ‘foreign or international tribunal[s]’ within the meaning of 28 USC § 1782(a), titled ‘Assistance to foreign and international tribunals and to litigants before such tribunals’. In its present form and in relevant part, the statute reads:

Prior to the Supreme Court’s 2004 decision in Intel Corp v Advanced Micro Devices, Inc,⁶ few federal courts had discussed section 1782’s applicability to private arbitral tribunals.⁷ The only circuit courts to consider the issue (the Second Circuit in NBC v Bear Stearns & Co⁸ and the Fifth Circuit in Republic of Kazakhstan v Biedermann International⁹) had concluded that such tribunals were beyond the statute’s reach.¹⁰

Intel did not decide the question as that case concerned the availability of § 1782 discovery in an antitrust proceeding before the European Commission, not before a private arbitral tribunal.¹¹ However, Justice Ginsburg, writing for the majority, described the statute’s permissive language (‘may’) to give district courts broad discretion in applying section 1782 discovery, leading to a multi-factor test that lower courts were to employ in considering section 1782 petitions: (i) whether ‘the person from whom discovery is sought is a participant in the foreign proceeding’; (ii) ‘the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance’; (iii) ‘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’; and (iv) whether the request is ‘unduly intrusive or burdensome’.¹²

While NBC and Biedermann had characterized section 1782’s legislative history as evidence of a lack of Congressional intent to cover private international arbitrations,¹³ in Intel Justice Ginsburg observed in dicta that a 1964 amendment of section 1782 (changing ‘any judicial proceeding’ to ‘a proceeding in a foreign or international tribunal’) had expanded the reach of the statute, so that it could be read to include foreign and international ‘arbitral tribunals’.¹⁴

The notion of an expanded reach came from Professor Hans Smit, the reporter to the Congressionally-created US Commission on International Rules of Judicial Procedure, to whom then-Judge Ginsburg had once referred as the ‘dominant drafter of, and commentator on, the 1964 revision’.¹⁵ Moreover, as is documented in the literature and relevant court decisions,¹⁶ the Senate Report on the 1964 amendment stated that Congress adopted the 1964 amendment ‘to provide the possibility of U.S. judicial assistance in connection with [administrative and quasi-judicial proceedings abroad]’,¹⁷ and the House Report stated that ‘the word “tribunal” is used to make it clear that assistance is not confined to proceedings before conventional courts’.¹⁸

Yet, whereas the plain language of the 1964 amendment and its legislative history as recited in Intel¹⁹ provide ample support for including private arbitral tribunals in section 1782’s scope, Intel did not pose, much less resolve, whether foreign or international private arbitral tribunals fall within the scope of section 1782.²⁰

CONSENSUS PROVES ELUSIVE

Fifteen years have passed since Intel. But as of the writing of this article, only two federal circuit courts have taken up the question of section 1782’s applicability to private foreign arbitral tribunals.²¹ In contrast, in addition to the district court decisions reviewed in the Sixth and Seventh Circuits, district courts across the United States have had occasion to consider the question on no fewer than eighteen occasions since 2010. Five courts declined to rule on or otherwise side-stepped the question²²; seven found that private arbitrations constitute a ‘foreign or international tribunal’ for section 1782 purposes²³; and another six found that they do not.²⁴ Opposite outcomes, sometimes within weeks of one another,²⁵ have not been confined to conflicts in district court decisions in different appellate circuits or even in different districts, but have occurred both within circuits (the Second²⁶ and Ninth²⁷ Circuits) and within district courts (the Southern District of New York²⁸ and the Northern District of California²⁹).

Interestingly, courts on both sides of the issue find comfort in section 1782’s legislative history,³⁰ which likewise supported the divergent Biedermann, NBC, and Intel decisions, as well as more recent circuit court cases.³¹ Reflecting the apparent malleability of section 1782’s legislative history, Justice Scalia, in his separate Intel concurrence based on ‘the text of the statute’ alone, cautioned that the legislative history cited there, for all he knew, ‘may be contradicted elsewhere’.³² Court decisions since 2010 bear out the late justice’s concern.

DEFINING ‘TRIBUNAL’

Returning to first principles then, it is noteworthy that common definitions of ‘tribunal’ make no distinction between ‘private’ (however defined) and other tribunals. Merriam-Webster defines the word as either ‘a court or forum of justice’ or simply as ‘something that decides or determines’.³³ Black’s Law Dictionary, meanwhile, defines ‘tribunal’ as, inter alia, ‘[a] court of justice or other adjudicatory body’.³⁴ An exhaustive study of dictionary definitions may indeed unearth some narrower definitions,³⁵ but the use of ‘tribunal’ in American legal writing supports a notion of tribunal that ‘encompass[es] privately contracted-for arbitral bodies with the power to bind the contracting parties’.³⁶

Attempts to find other reasoned bases for distinguishing between private and other arbitral tribunals are no more satisfying. For example, the Northern District of California reasoned:

But the court neglected to explain how a forum selection clause a ‘private’ agreement submitting future disputes to the jurisdiction of a conventional state-run court differs from a clause submitting such a dispute to a private arbitral tribunal. Similarly, the court neglected to mention that investor-state arbitrations, commonly afforded section 1782 assistance by federal courts,³⁸ tend to provide for party-appointed arbitrators under the applicable rules, such as the rules of the International Centre for Settlement of Investment Disputes (ICSID).³⁹

Other distinctions, such as the purported lack of appellate review and lack of mandatory procedural law,⁴⁰ are also not especially persuasive. As is well established, some arbitral institutions, including the prominent International Chamber of Commerce (ICC), provide for limited ‘in-house’ appellate review,⁴¹ and final awards in international arbitrations are subject to limited judicial review under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards,⁴² and the mandatory law at the seat of arbitration.⁴³

Similarly, as the Sixth Circuit held recently, ‘we decline to conclude that simply because similar discovery devices may not be available in domestic arbitration [there is no analogue to section 1782 for domestic arbitrations], § 1782(a) categorically does not apply to foreign or international private arbitration’.⁴⁴ After all, the Supreme Court in Intel rejected just such a rationale.⁴⁵

Thus, attempts to articulate principled distinctions that would narrow the definition of ‘tribunal’ so as to exclude private foreign or international arbitral tribunals have not been compelling. This, at least in part, may explain the above-noted lack of consensus among US courts.

CIETAC JUST ANOTHER PRIVATE ARBITRAL TRIBUNAL?

A 2019 decision by Judge Jesse Furman of the Southern District of New York is among the narrowest readings of 28 USC § 1782. It deserves additional attention. Not only did the court side with NBC and its progeny to conclude that private arbitral tribunals are beyond the scope of section 1782,⁴⁶ but Judge Furman went so far as to expand the definition of ‘private’ to include an arbitration under CIETAC, originally a creation of the government of China and today the world’s largest arbitral institution by case volume.⁴⁷

In February 2019, the Judge Furman denied Mr Hanwei Guo permission to take discovery from a non-party located in New York under section 1782 for use in a CIETAC arbitration.⁴⁸ The arbitration arose from an investment agreement between Hanwei Guo, an early investor in the online music business, Ocean Music, and Guomin Xie, its founder.⁴⁹ Mr Guo alleged that Mr Xie defrauded Mr Guo, stole Ocean Music’s equity, and merged Ocean Music with a rival, Tencent Music, to create the world’s largest online-music platform.⁵⁰ After the merger, Tencent Music Entertainment Group was preparing for an initial public offering in the United States.⁵¹ Tencent provided the underwriters and their counsel access to documents as part of the due diligence prior to the IPO.⁵² Mr Guo sought to gain access to those documents through discovery in New York.⁵³

Judge Furman denied the petition, holding that private commercial arbitrations do not constitute ‘foreign tribunals’ as a categorical matter.⁵⁴ Going a step further in reference to NBC,⁵⁵ the judge held that CIETAC did not qualify as a ‘foreign or international tribunal’ because: (i) ‘CIETAC’s jurisdiction is derived exclusively from the private agreement of the parties to the arbitration proceedings’⁵⁶; (ii) the parties, not the state, may choose the arbitrators⁵⁷; (iii) CIETAC, its origin as a creation of the Chinese government notwithstanding, is independent and impartial and not an ‘administrative organ of the Chinese government’⁵⁸; and (iv) CIETAC’s efficiency and cost-effectiveness would be undermined if parties ‘could conduct discovery in the United States pursuant to Section 1782(a)’.⁵⁹

Judge Furman conceded that the arbitration before CIETAC is a ‘closer case for coverage’ under section 1782 than the arbitration before the ICC was in NBC.⁶⁰ First, the Chinese government established CIETAC’s precursor.⁶¹ Second, the Chinese government retains some degree of authority over CIETAC.⁶² Third, Chinese courts, applying Chinese law, have some limited review and enforcement authority over CIETAC awards.⁶³ He concluded, however, that ‘CIETAC’s origins are not dispositive’ as it ‘bears little resemblance to its precursor’,⁶⁴ and that ‘the NBC Court’s reference to proceedings before “state-sponsored adjudicatory bodies” was [not] meant to include arbitrations created by private agreement’.⁶⁵ As such, CIETAC, according to Judge Furman, is more akin to a private arbitral tribunal and is, therefore, outside the scope of section 1782.⁶⁶

Apart from the questionable premise of foreclosing categorically section 1782 coverage to litigants in private international arbitrations, deeming CIETAC ‘private’ for section 1782 purposes is troubling for a number of reasons.

As a general matter, the ability of a major Chinese adjudicatory body originally established by the Chinese government to act independently is a bit of a leap of faith. Take for example Supreme People’s Court Chief Justice Zhou Qiang 2017 assertion that Chinese judges ‘must firmly resist the western idea of judicial independence [from] the ruling Communist Party’.⁶⁷ Freedom House since added that Chinese Communist Party ‘dominates the judicial system, with courts at all levels supervised by party political-legal committees that have influence over the appointment of judges, court operations, and verdicts and sentences’, and also warned that, whereas ‘[a]djudication of minor civil and administrative disputes is relatively fair, (...) cases that touch on politically sensitive issues or the interests of powerful groups are subject to decisive “guidance” from political-legal committees’.⁶⁸

More specific, arbitrator selection in CIETAC proceedings differs markedly from ‘private’ arbitral tribunals elsewhere:

CIETAC’s Chairperson, in turn, is appointed by the China Council for the Promotion of International Trade (CCPIT),⁷⁰ an organization whose primary responsibilities include promoting bilateral investment and Sino-foreign economic and technological cooperation, participating in the Bureau International des Expositions and the World Expo on behalf of the Chinese government, engaging in foreign trade negotiations, and issuing certificates of origin for export products.⁷¹ CCPIT, in other words, is a quasi-governmental body in China.⁷²

What is more, ‘[i]n practice, the autonomy of parties to appoint arbitrators of their choice is limited’ since CIETAC’s ‘selection process ensures [that] a majority of arbitrators on every tribunal are Chinese’, and ‘[i]t is virtually unheard of for a non-Chinese national to be appointed chairman’.⁷³ Indeed, a comprehensive 2017 study of CIETAC awards and case outcomes during the 1990s found decisively that CIETAC’s role in arbitrator selections affected case outcomes.⁷⁴

This appointment structure is a far cry from the ICC’s⁷⁵ and other private international arbitral tribunals outside of China,⁷⁶ which operate independently of state influence or interference. Judge Furman’s citation to a single sentence in an academic treatise to the effect that CIETAC ‘now functions independently in dispute handling’⁷⁷ does little to overcome the above-described structural issues. This is particularly true where that authority itself is supported by what is, at best, a passing reference⁷⁸ to a source that consists of a one-sentence conclusory assertion.⁷⁹

Observe, too, plausible inferences to be drawn from Judge Furman’s decision: had he agreed that the Chinese state interferes with CIETAC’s independence, then, presumably, he would have been more inclined to conclude that CIETAC is not a private tribunal and therefore should fall under section 1782. Taking this rationale to its logical conclusion, a participant in a private foreign or international arbitral proceeding would be more likely to succeed in petitioning a US district court for discovery if the foreign state where the arbitration was seated had a track record of injecting itself into the proceedings. That rationale is almost as absurd as the implicit invitation by two district courts to institute a sham lawsuit in a foreign jurisdiction for the sole purpose of securing section 1782 coverage.⁸⁰

WHY CONGRESS SHOULD STEP IN

Predictability in the application of section 1782 would benefit international dispute resolution:

Indeed, the need for ‘reckonability’ is particularly pronounced in a consensual, contract-based private international arbitral system that is a function of sophisticated commercial actors making informed decisions about fora, modes of adjudication, applicable procedural rules, applicable substantive law, etc. By definition, such parties’ contractual expectations cannot be met if they cannot know what to expect.

Yet, over half a century of uncertainty as to section 1782’s scope with respect to private foreign and international arbitral tribunals render one inference inescapable: US courts, left to their own devices, are unlikely to bring predictability, let alone certainty, to the subject. Neither section 1782’s legislative history as cited for various conclusions by various courts, nor Intel’s factors have proved to supply the requisite guideposts to courts grappling with requests for judicial assistance by litigants before private arbitral tribunals. What is more, among circuit courts, only the Sixth Circuit has opined on the issue since Intel,⁸² and therefore it is far from clear that a circuit split exists for the Supreme Court to resolve.⁸³ Moreover, the September 2019 Sixth Circuit case is readily distinguishable on its face from tribunals constituted under wholly private arbitral regimes. The DIFC-LCIA is a joint venture of a private institution, the LCIA, and a statutorily-created arbitral body, the DIFC, in the emirate of Dubai. As such the DIFC-LCIA is not purely a private foreign arbitral tribunal but rather a hybrid between and a private and a state-sponsored tribunal.⁸⁴ Waiting for the Supreme Court to step in and provide a workable precedent is uncertain; indeed, it may be quite a long time before the Court elects to consider the question.

Congress, on the other hand, could bring predictability to the issue by amending section 1782(a).⁸⁵ While some have advocated for a statutory categorical exclusion of private arbitral tribunals,⁸⁶ the author submits that the better approach would be to afford such tribunals section 1782 coverage, but to require, as a prerequisite, tribunal authorization of such judicial assistance.

In fact, as noted by others,⁸⁷ this is how Professor Smit envisioned § 1782 to function when he observed that an ‘American court should honor an application under Section 1782 only if the application is approved by the arbitral tribunal’.⁸⁸ A single clause added to section 1782(a) could achieve that result:

This change would be minimally invasive, leaving intact longstanding section 1782 jurisprudence that does not concern private foreign or international arbitral tribunals.⁸⁹ And, to be sure, this change would not apply to a tribunal that itself makes such a request.⁹⁰ What is more, it would promote the ‘liberal federal policy favoring arbitration’⁹¹ by not disadvantaging parties who, by contract before a dispute arises or by express agreement afterwards, resort to private foreign or international arbitration instead of litigating their dispute before foreign courts. Making judicial assistance contingent on tribunal approval would also align US practice with judicial assistance available in other jurisdictions.⁹² The prerequisite would likewise enhance party autonomy as the parties by virtue of selecting the arbitral institution, applicable rules, and members of the tribunal would exercise more control over the availability of section 1782 judicial assistance.

The proposed amendment would also address, and partly dispose of, the need for an analysis of the Intel factors, thereby reducing uncertainty and simplifying the process of deciding whether section 1782 discovery should be made available. In particular, whether the request is ‘unduly intrusive or burdensome’⁹³ would be judged against a threshold order by the tribunal authorizing the discovery, thus at a minimum comforting the district court that the tribunal with jurisdiction over the dispute does not object to the request. And while a private arbitral tribunal could not opine as a state-run judicial body on ‘whether the Section 1782(a) request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States’,⁹⁴ a tribunal’s order authorizing discovery would at least imply that such concerns did not sway the tribunal in favour of denying the request. Finally, ‘the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance’⁹⁵ would be disentangled by virtue of the amendment’s express reference to ‘private’ tribunals, and by requiring an order from a tribunal authorising discovery prior to any US judicial assistance.

Still, district courts, applying the Intel factors, would retain some discretion in ruling on section 1782 discovery requests. Courts would, for example, retain their ability to take into account comity concerns and the burden to be imposed on the person or entity from whom discovery would be sought. But the amendment would make plain that private arbitral tribunals fall under section 1782, and the prerequisite of an order by a tribunal would answer, or at the very least inform, a district court’s analysis.

So what is not to like? Principally, some argue that ‘U.S.-style discovery simply does not comport with the principles of international arbitration and few arbitration practitioners are pleased that § 1782 may open the door to the US discovery process’.⁹⁶ In fact, both Biedermann and NBC voiced variations of the concern that extending section 1782 to private arbitral tribunals would reduce the arbitral system’s cost-effectiveness and efficiency rationale.⁹⁷ However, in a world where the private arbitral tribunal itself ‘a creature of contract’ bound in terms of ‘substance and procedure’ by what the parties ‘agreed upon in advance’⁹⁸ must first authorise section 1782 discovery before any such discovery may be approved by a US district court,⁹⁹ discovery would be an expression of party autonomy to contract instead of a drag on efficiency. To illustrate, parties, per their contract, could select, for instance, the narrow Prague Rules to govern document production.¹⁰⁰ In a future dispute, a tribunal would then be obligated to apply those rules when considering whether or not to issue an order authorizing section 1782 discovery. Only if a tribunal concluded that the information sought fits within the arbitral rules governing disclosure, could a district court grant a petition for section 1782 discovery. Conversely, there would be no need for the district court to itself apply the local rules.¹⁰¹

CONCLUSION

The current state of uncertainty as to section 1782’s applicability to private foreign or international arbitral tribunals should give way to a more predictable process.

Amending section 1782 both to include an express reference to such tribunals under section 1782 and to make any discovery contingent on an arbitral tribunal’s order to that effect, would allow contracting parties to make informed decisions as to potential discovery under US law, and would align US law with mainstream practice of other jurisdictions. Last but not least, the proposed amendment would lighten the analytical thicket, and resulting unpredictability, for US district courts by clarifying section 1782’s scope.

David J. Stute is an international arbitration associate at Pillsbury in Washington, DC. The author would like to thank Pillsbury partner Michael E. Jaffe for his invaluable guidance on this article and Michelle Ki, a 2019 Pillsbury summer associate from Harvard Law School, for her tireless work in collecting and analysing the case law.

Footnote

1 In re Application of Moneyonmobile, Inc, No 19-MC-80128-VKD, 2019 WL 2515612 (ND Cal 18 June 2019); In re Application of the Children’s Inv Fund Found (UK), 363 F Supp 3d 361 (SDNY 2019); Abdul Latif Jameel Transp Co v Fedex Corp, No 19-5315, 2019 US App Lexis 28348 (6th Cir 19 Sept 2019).

2 In re Hanwei Guo, No 18-MC-561 (JMF), 2019 US Dist LEXIS 29572, at *3-8 (SDNY 25 February 2019).

3 ibid *8.

4 CMPC Celulose Riograndense LTDA, No CV 19-MC-00005, 2019 WL 2995950 at *2 (DRI 9 July 2019) (‘Even if [Arbitration and Mediation Center of Brazil-Canada Chamber] was not “a foreign or international tribunal,” the [Sao Paulo state court] litigation alone would provide a sufficient “basis to grant” the discovery’.); see also Ex Parte Application of Iraq Telecom for an Expedited Order to Take Discovery Pursuant to 28 USC § 1782, No 18-MC-458, at *5 n 5 (SDNY 13 Aug 2019) (WL) (Mag Ona Wang) (acknowledging the tensions across SDNY decisions as to private arbitral tribunals but concluding in granting the petition that, because a parallel complaint had been filed in a foreign court in Dubai, ‘I need not reach th[e] issue of whether private arbitral tribunals [here ICC] were intended by Congress to fall within the ambit of § 1782’).

5 While the meaning of ‘international’ for the purposes of § 1782 is unsettled, this article (like the cases it discusses) focuses specifically on the meaning of ‘tribunal’.  See In re Grupo Unidos Por El Canal SA, No 14- MC-80277-JST (DMR), 2015 US Dist LEXIS 52358 at *35 n 9 (ND Cal 21 Apr 2015) (Grupo II) (hold­ing that it does not need to address whether the US based arbitration could be considered ‘foreign or international’ because private arbitrations are not ‘tribunals’ for § 1782 purposes); see also In re Grupo Unidos Por El Canal, SA, No 14-MC-00226-MSK-KMT, 2015 US Dist LEXIS 50910 at *24 (D Colo 17 Apr 2015) (Grupo I) (declining to ‘reach the question of whether the private arbitration [at issue] is “international” within the meaning of § 1782’ but noting that all of the cases it cites ‘addressed arbitration held in a foreign country’); In re Dubey, 949 F Supp 2d 990, 992 (CD Cal 2013) (noting that the ‘[petitioner contends that the arbitration [at issue] is a[n] “international tribunal”‘ but centring the ‘crux of the dispute [as] whether a “proceeding in a foreign or international tribunal” applies to private arbitrations’).

6 542 US 241 (2004).

7 See, eg George Sassine, ‘There Should Be an Answer to § 1782(a) - As to Whether Its Scope Includes Private Arbitral Tribunals’ (2016) 3 McGill J of Disp Resol 1, 3; Kenneth Beale, Justin Lugar and Franz Schwarz, ‘Solving the § 1782 Puzzle: Bringing Certainty to the Debate over 28 USC § 1782’s Application to International Arbitration’ (2011) 47 Stan J Int’l L 51, 60-61.

8 165 F 3d 184 (2nd Cir 1999).

9 168 F 3d 880 (5th Cir 1999).

10 See Sassine (n 7) 3.

11 Intel (n 6) 250.

12 ibid 264-65; see also In re Application of Moneyonmobile, Inc, No 19-MC-80128-VKD, 2019 WL 2515612 (ND Cal 18 June 2019); In re Children’s Inv Fund (n 1); In re Pola Mar Ltd, No CV416-333, 2018 US Dist LEXIS 62980 (SD Ga 12 Apr 2018).

13 See NBC (n 8) 191; see also Biedermann (n 9) 883.

14 Intel (n 6) 258 (citing Professor Hans Smit who had written, ‘[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’ (citation omitted)).

15 In re Letter of Request from Crown Prosecution Serv, 870 F 2d 686, 689 (DC Cir 1989).

16 See Beale et al (n 7); see also Brandon Hasbrouck, ‘If it Looks Like a Duck ... : Private International Arbitral Bodies are Adjudicatory Tribunals under 28 USC § 1782(a)’ (2010) 67 Wash & Lee L Rev 1659; Laura Emmy Malament, ‘Making or Breaking Your Billion Dollar Case: U.S. Judicial Assistance to Private International Arbitration Under 28 USC § 1782(a)’ (2014) 67 Vand L Rev 1213.

17 Intel (n 6) 258 (citing S Rep No 1580 at 7-8).

18 NBC (n 8) 189 (citing HR Rep No 88-1052 at 9 (1963)).

19 See, eg Hasbrouck (n 16) 1691.

20 Cf Grupo II (n 5) *20 (reasoning that ‘the Court in Intel did not specifically disapprove of, or even mention, the circuit court rulings in Biederman or NBC’, rendering ‘completely implausible that the Supreme Court would have (...) expanded § 1782 to permit discovery assistance in private arbitral proceedings and reverse the only two circuits addressing this issue sub silentio, without even acknowledging the existence of the circuit precedent’ (citations omitted)).

21 Jameel (n 1) *6-7 (reversing a district court’s denial of § 1782 discovery for a proceeding under the auspices of the DIAC-LCIA, a joint venture of the London Court of International Arbitration, a private institution, and a statutorily-created arbitral institution in the emirate of Dubai); Servotronics Inc v Rolls-Royce, No. 19-1847 (7th Cir) (hearing oral argument on 19 September 2019); see also Sassine (n 7) 29 (adding that the Eleventh Circuit declined to address the issue in In re Application of Consorcio Ecuatoriano de Telecommicaciones SA, 685 F 3d 987 (11th Cir 2012)).

22 See Iraq Telecom (n 4) *5 n 5 (acknowledging the tensions across SDNY decisions as to private arbitral tribunals but concluding in granting the petition that, because a parallel complaint had been filed in a foreign court in Dubai, ‘I need not reach th[e] issue of whether private arbitral tribunals [here ICC] were intended by Congress to fall within the ambit of § 1782’); see also In re Pinchuk, No 2:13-CV-00251-ABJ, 2014 US Dist LEXIS 12561 (D Wyo 30 Jan 2014) (finding that the related proceedings in a Cyprus court were sufficient for section 1782 purposes with parallel LCIA proceedings); see also Consorcio Ecuatoriano de Telecomunicaciones SA v JAS Forwarding (USA), Inc, 747 F 3d 1262 (11th Cir 2014) (declining to reach the issue, noting that the record was too sparse to address such a substantial question for a proceeding before the Center for Arbitration and Conciliation of the Guayaquil Chamber of Commerce in Ecuador); In re Hanwha Azdel, Inc, 979 F Supp 2d 178 (D Mass 2013) (declining to reach the issue because the ICC tribunal was seated in Virginia, the arbitrators were from the United States, and they were applying New York law); In re Finserve Grp Ltd, No 4:11-MC-2044-RBH, 2011 US Dist LEXIS 121521 (DSC 20 Oct 2011) (not deciding the threshold question of whether the LCIA could be covered by section 1782, but expressing concerns about including the LCIA within the meaning of ‘foreign or international’ tribunal).

23 See CMPC Celulose Riograndense LTDA, No CV 19-MC-00005, 2019 WL 2995950 (DRI 9 July 2019) (granting section 1782 discovery for a proceeding before the Arbitration and Mediation Center of Brazil-Canada Chamber); see also In re Application of Moneyonmobile, Inc, No 19-MC-80128-VKD, 2019 WL 2515612 (ND Cal 18 June 2019) (granting section 1782 discovery for a proceeding before the LCIA); In re Children’s Inv Fund, 363 F Supp 3d 361 (SDNY 2019) (finding NBC no longer applicable and finding the LCIA to be a foreign tribunal); In re Pola Mar Ltd, No CV416-333, 2018 US Dist LEXIS 62980 (SD Ga 12 Apr 2018) (relying on Intel to find that the London Maritime Arbitrators Association (LMAA) was a ‘foreign or international’ tribunal); In re Kleimar NV, 220 F Supp 3d 517 (SDNY 2016) (relying on Intel to find the LMAA to be a ‘foreign or international’ tribunal); In re Owl Shipping, LLC, Civil Action No 14-5655 (AET) (DEA), 2014 US Dist LEXIS 148088 (DNJ 17 Oct 2014) (finding the LMAA to be a ‘foreign’ tribunal); In re Winning (HK) Shipping Co, No 09-22659-MC, 2010 US Dist LEXIS 54290 (SD Fla 30 Apr 2010) (finding the LMAA to be a ‘foreign or international’ tribunal).

24 See In re Hanwei Guo, No 18-MC-561 (JMF), 2019 US Dist LEXIS 29572 (SDNY 25 Feb 2019) (finding CIETAC not to constitute a ‘foreign or international’ tribunal); In re Gov’t of the Lao People’s Democratic Republic, No 1:15-MC-00018, 2016 US Dist LEXIS 47998 (DN Mar I 7 Apr 2016) (finding an arbitration before the Singapore International Arbitration Centre arising out of a previous BIT arbitration to be categorically excluded from § 1782 coverage as a private international arbitration); Grupo II, No 14-MC-80277-JST (DMR), 2015 US Dist LEXIS 52358 (ND Cal 21 Apr 2015) (relying on Intel to find an ICC arbitration seated in Miami not to constitute a ‘foreign or international’ tribunal); Grupo I, Civil Action No 14-MC-00226-MSK-KMT, 2015 US Dist LEXIS 50910 (D Colo 17 Apr 2015) (relying on NBC and Biedermann to find that an ICC tribunal seated in Miami did not constitute a ‘foreign or international’ tribunal); In re Dubey, 949 F Supp 2d 990 (CD Cal 2013) (finding an American Arbitration Association proceeding not to constitute a ‘foreign or international’ tribunal by categorizing Intel as dicta and by reasoning that the Court neither intended to overrule NBC and Biedermann nor to expand the scope of section 1782); In re Application by Rhodianyl SAS, No 11-1026- JTM, 2011 US Dist LEXIS 72918 (D Kan 25 Mar 2011) (finding an ICC arbitration not to be a ‘foreign or international’ tribunal by reasoning that if Intel had sought to overrule NBC and Biedermann, the Supreme Court could have stated so explicitly).

25 Compare In re Hanwei Guo (n 2), with In re Children’s Inv Fund (n 1).

26 Compare In re Hanwei Guo (n 2), with In re Children’s Inv Fund (n 1), and In re Kleimar NV (n 23).

27 Compare In re Application of Moneyonmobile (n 12), with In re Gov’t of the Lao People’s Democratic Republic (n 24), and Grupo II (n 5).

28 Compare In re Hanwei Guo (n 2), with In re Children’s Inv Fund (n 1), and In re Kleimar NV (n 23).

29 Compare In re Moneyonmobile (n 12), with Grupo II (n 5).

30 Compare In re Dubey (n 5) 995 (concluding in denying the ICC section 1782 coverage that ‘[t]he Court is convinced [, inter alia,] by the legislative history’), with In re Children’s Inv Fund (n 1) 368-70 (relying on legislative history to rule that the LCIA is covered by § 1782).

31 Compare Jameel (n 1) *37-38 (‘We are unpersuaded [by NBC’s and Biedermann’s discussion of legislative history].  Even if we were inclined to permit statements in congressional reports to color our view of a statutory term, we would hesitate to rely upon such statements as did NBC.  Those statements do not exclude privately constituted proceedings from the meaning of “tribunal.” If anything, what the statements make clear is Congress’s intent to expand § 1782(a)’s applicability.’), with Celeste Bott, ‘Foreign Arbitration Power Key in 7th Circuit Discovery Fight’ (Law360, 19 September 2019) accessed 3 October 2019 (quoting Judge Sykes as stating in oral argument in Servotronics Inc v Rolls-Royce, No. 19-1847 (7th Cir), ‘You’re pressing very, very hard on what is a parenthetical reference [to Smit’s broad definition of tribunal as cited in Intel].  Your whole argument about Intel rests on a very slight passage that was not decisive in the case.  You have to persuade us that he was actually talking about private arbitration, and the Supreme Court knew that, when it dropped a parenetical quote.’).

32 Intel (n 6) 267 (2004) (Scalia, J, concurring).

33 Merriam-Webster (2019) <https://www.merriam-webster.com/dictionary/tribunal> accessed 3 October.

34 Black’s Law Dictionary (Brian A Garner ed, 11th edn, 2019) 1814.

35 Jameel (n 1) *18 (‘[S]everal legal and non-legal dictionaries contain definitions of “tribunal” broad enough to include private arbitration, while others contain narrower definition that seem to exclude such proceedings.  Because dictionaries leave room for interpretation, we turn to other indicators of usage to discern the word’s linguistic meaning.’).

36 ibid *22-23.

37 Grupo II (n 5) *14.

38 Cf, eg In re Veiga, 746 F Supp 2d 8 (DDC 2010).  While federal courts are less divided on the availability of § 1782 in the investment arbitration context, this is not attributable to principled distinctions between investment and commercial arbitral proceedings.  See, eg SI Strong, ‘Discovery Under 28 USC § 1782: Distinguishing International Commercial Arbitration and International Investment Arbitration’ (2013) 1 Stan J Complex Lit 295, 312 (noting that ‘even when courts do consider whether a tribunal in an investment arbitration constitutes a “foreign or international tribunal” under section 1782, they typically do so in a highly conclusory manner’).

39 Rules of Procedure for Arbitration Proceedings of ICSID art 3 (‘[E]ither party shall (...) name two persons, identifying one of them (...) as the arbitrator appointed by it, and the other as the arbitrator proposed to be the President of the Tribunal; and (...) upon receipt of this communication the other party shall (...) name a person as the arbitrator appointed by it (...) and concur in the appointment of the arbitrator proposed to be the President of the Tribunal or name another person as the arbitrator proposed to be President.’).

40 Grupo II (n 5) *13-14.

41 The members of the ICC International Court of Arbitration are nominated by national committees, ICC Rules of Arbitration, app i, art 3, and the ICC International Court of Arbitration scrutinises every draft award for form and substance prior to permitting an arbitral tribunal to render its award, ICC Rules of Arbitration art 34.

42 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (entered into on 7 June 1958) 330 UNTS 4739 (New York Convention) art v. The United States has implemented the New York Convention through the Federal Arbitration Act (FAA).  See 9 USC §§ 201-08.

43 See, eg 9 USC § 201 et seq; Arbitration Act 1996, sub-s 2(3) (‘The powers conferred by the following sections apply even if the seat of the arbitration is outside England and Wales or Northern Ireland or no seat has been designated or determined—(a) section 43 (securing the attendance of witnesses), and (b) section 44 (court powers exercisable in support of arbitral proceedings); but the court may refuse to exercise any such power if, in the opinion of the court, the fact that the seat of the arbitration is outside England and Wales or Northern Ireland, or that when designated or determined the seat is likely to be outside England and Wales or Northern Ireland, makes it inappropriate to do so.’).

44 Jameel (n 1) *41-42.

45 Intel (n 6) 263 (‘We also reject Intel’s suggestion that a § 1782(a) applicant must show that United States law would allow discovery in domestic litigation analogous to the foreign proceeding.  Section 1782 is a provision for assistance to tribunals abroad.  It does not direct United States courts to engage in comparative analysis to determine whether analogous proceedings exist here.’).

46 See In re Hanwei Guo (n 2).

47 Markus Altenkirch and Jan Frohloff, ‘International Arbitration Statistics 2016 - Busy Times for Arbitral Institutions’ (Global Arbitration News, 26 June 2017) < https://globalarbitrationnews.com/international-arbitration-statistics-2016-busy-times-for-arbitral-institutions/> accessed 3 October 2019.

48 See In re Hanwei Guo (n 2).

49 Mem of Law in Supp of Pet for an Order to Take Disc for Use in a Foreign Proceeding Pursuant to 28 USC § 1782 at 1, In re Hanwei Guo (n 2).

50 ibid.

51 ibid 14-15.

52 ibid 3.

53 In re Hanwei Guo (n 2) *2.

54 ibid *8.

55 While the district court noted that, post-Intel, district courts in the Second Circuit have rejected NBC and included private arbitrations within the scope of section 1782, the court reasoned that Intel did not overrule NBC, meaning that district courts in the Second Circuit continue to be bound by NBC.  See ibid 7–8 (citations omitted).

56 ibid *4.

57 ibid.

58 ibid (internal quotations omitted).

59 ibid.

60 ibid *5.

61 ibid *5-6.

62 ibid.

63 ibid.

64 ibid.

65 ibid *6 (citations omitted).

66 See ibid *7.

67 Nicholas Heath and Lusha Zhang, ‘China’s Top Judge Warns Courts on Judicial Independence’ (Reuters, 15 January 2017) < https://www.reuters.com/article/us-china-policy-law/chinas-top-judge-warns-courts-on-judicial-independence-idUSKBN14Z07B> accessed 3 October 2019.

68 ‘Freedom in the World: China’ (Freedom House, 2018) <https://freedomhouse.org/report/freedom-world/2018/china> accessed 3 October 2019.

69 Zachary Mollengarden, ‘“One-Stop” Dispute Resolution on the Belt and Road: Toward an International Commercial Court with Chinese Characteristics’ (2019) 36 Pac Basin L J 65, 80 (emphasis added).

70 Articles of Ass’n of China Int’l Econ and Trade Arb Commission art 5.

71 ‘About CCPIT’ (China Council for the Promotion of International Trade, 2016) accessed 3 October 2019.

72 H Yoshimatsu, Political Economy of Regionalism in East Asia: Integrative Explanation for Dynamics and Challenges (Palgrave 2008) 91.

73 Charles Kenworthey Harer, ‘Arbitration Fails to Reduce Foreign Investors’ Risk in China’ (1999) 8 Pac Basin L J 404–05.

74 See Pat K Chew, ‘Opening the Red Door to Chinese Arbitrations: An Empirical Analysis of CIETAC Cases 1990-2000’ (2017) 22 Harv Negot L Rev 241, 243, 265–66.

75 The ICC Court in conjunction with the Secretary General and the World Council, the ICC’s governing body comprised of a single member from each National Committee, retains ultimate appointing authority.  See ICC Constitution art 5; see also ICC Arbitration Rules arts 3.3, 13.

76 For example, the LCIA Arbitration Court—whose members are appointed by the LCIA board on the recommendation of the LCIA Court, and of whom no more than seven out of thirty-five may be of the same nationality—retains the ultimate appointing authority.  See ‘Constitution of the LCIA Court’ (LCIA, 2019) < https://www.lcia.org/LCIA/constitution-of-the-lcia-court.aspx> accessed 3 October 2019.

77 In re Hanwei Guo (n 2) *6 (citing Arthur Ma et al, ‘People’s Republic of China’ in Michael J Moser and John Choon (eds), Asia Arbitration Handbook (OUP 2012) 124 (‘Although established under the auspices of a quasi-governmental entity CIETAC’s legal status has gradually transformed into a non-governmental organization which now functions independently in dispute handling.’)).

78 See Ma et al (n 77).

79 Jingzhou Tao, Arbitration Law and Practice in China (OUP 2011) 23 (‘CIETAC (...) function[s] independently in handling arbitration disputes and (...) [is] free from the interference of any organization or individual—as required by Article 8 of the Arbitration Law.’).

80 Cf CMPC Celulose (n 4) *2 (‘Even if [Arbitration and Mediation Center of Brazil-Canada Chamber] was not “a foreign or international tribunal,” the [Sao Paulo state court] litigation alone would provide a sufficient “basis to grant” the discovery.’); see also Iraq Telecom (n 4) *5 n 5 (concluding in granting a petition that, because a parallel complaint had been filed in a foreign court in Dubai, ‘I need not reach th[e] issue of whether private arbitral tribunals [here ICC] were intended by Congress to fall within the ambit of § 1782’).

81 Antonin Scalia, ‘The Rule of Law as a Law of Rules’ (1989) 56 U Chi L Rev 1175, 1179.

82 Jameel (n 1).

83 Arguably, there is now a split between the Fifth Circuit’s decision in Biedermann and the Second Circuit’s decision in NBC on the one hand, and the Sixth Circuit’s decision in Jameel on the other.  Compare In re Hanwei Guo (n 2) *7–8 (finding that Intel did not overrule NBC, and that district courts in the Second Circuit continue to be bound by NBC’s exclusion of private foreign arbitral tribunals from section 1782 coverage), with Jameel (n 1) *32–44 (rejecting NBC and Biedermann’s reasoning and conclusions).  But the Supreme Court has ample discretion to pick and choose which applications for review to grant.  See US Supreme Court Rule 10 (‘Review on a writ of certiorari is not a matter of right, but of judicial discretion.  A petition for a writ of certiorari will be granted only for compelling reasons.’).  And statistics bear out the long odds of having the court take up an appeal.  See, eg, Scotus Blog: Supreme Court Procedure (Scotus Blog, 2019) accessed 3 October 2019 (‘Of the 7,000 to 8,000 cert petitions filed each term, the court grants certiorari and hears oral argument in only about 80.’).

84 Jameel (n 1) 6–7.  Note, however, that the Sixth Circuit’s analysis does not cite this fact as a reason for extending section 1782 to private foreign or international arbitral tribunals.

85 As noted in Intel, Congress in 1996 amended § 1782(a) ‘to clarify that the statute covers “criminal investigations conducted before formal accusation”’.  Intel (n 6) 259 (citation omitted).

86 Sassine (n 7) 31-34.

87 ibid 35; Beale et al (n 7).

88 Hans Smit, ‘American Assistance to Litigation in Foreign and International Tribunals: § 1782 of the Title 28 of the USC Revisited’ (1998) 25 Syracuse J Int’l & Comp L 1, 2 (emphasis added).

89 Note that, arguably, the prerequisite should apply across the board to all foreign and international tribunals, but that imposing the requirement beyond private foreign and international arbitral tribunals by legislative amendment might complicate § 1782 discovery related to proceedings before other kinds of foreign and international tribunals.  Cf, eg In re Chevron Corp, 709 F Supp 2d 283, 292 (2010) (finding that BIT arbitrations ‘operating under UNCITRAL rules constitute “foreign tribunals” for purposes of Section 1782’).  Therefore, the author refrains from including language effectuating an across-the-board requirement in the above proposal.

90 Following the statutory language quoted above, § 1782(a) goes on to state, ‘The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court.’ If the request is made by the tribunal itself, any ‘authorization]’ as required by the proposed amended, of course, would be implied.

91 See, eg AT&T Mobility LLC v Conception, 131 S Ct 1740, 1745 (2011) (stating that the FAA reflects a ‘liberal federal policy favoring arbitration’).

92 See Sassine (n 7) 35.

93 Intel (n 6) 264-65.

94 ibid.

95 ibid.

96 See Sassine (n 7) 33.

97 See Biedermann (n 9) 883 (stating that ‘[e]mpowering arbitrators or, worse, the parties, in private international disputes to seek ancillary discovery through the federal courts does not benefit the arbitration process’); see also NBC (n 8) 190-91 (stating that the ‘popularity of arbitration rests in considerable part on its asserted efficiency and cost-effectiveness—characteristics said to be at odds with full-scale litigation in the courts, and especially at odds with the broad-ranging discovery made possible by the Federal Rules of Civil Procedure’).

98 ibid.

99 To be sure, courts would continue to ‘enjoy substantial discretion to shape discovery under § 1782(a)’, and ‘the Supreme Court has made clear that the district court has wide discretion in determining whether and how to [order discovery in light of the parties’ expectations as to the extent of discovery in arbitration]’.  Jameel (n 1) *42, 44 (citations omitted).

100 Rules on the Efficient Conduct of Proceedings in International Arbitration art 4.2-3 (‘Generally, the arbitral tribunal and the parties are encouraged to avoid any form of document production, including e-discovery’, but ‘if a party believes that it would need to request certain documents from the other party, it should indicate this to the arbitral tribunal at the case management conference and explain the reasons why the document production may be needed in this particular case’.  Only ‘[i]f the arbitral tribunal is satisfied that the document production may be needed, it should decide on a procedure for document production and make an appropriate provision for it in the procedural timetable’.).

101 See Intel (n 6) 262 (noting that ‘[w]hen the foreign tribunal would readily accept relevant information discovered in the United States, application of a [proposed requirement] would be senseless’).

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