AlixPartners LLP v The Fund for Protection of Investors Rights in Foreign States - United States Supreme Court Docket No 21-518 - Amicus brief of George A. Bermann, Robert H. Smit, D. Brian King, Ruth Teitelbaum, and Lucas Bent - 2 March 2022
SUMMARY OF ARGUMENT
Section 1782 permits, but does not require, U.S. federal district courts to order discovery "for use in a proceeding in a foreign or international tribunal." 28 U.S.C. § 1782(a). The district courts in the consolidated cases below respectively ruled that an international arbitration tribunal constituted pursuant to a private contractual agreement to arbitrate and under the terms of a bilateral investment treaty, each qualified as "a foreign or international tribunal" for purposes of Section 1782. The Sixth and Second Circuits affirmed those results and they should be affirmed by the Court here as well.2 The Sixth Circuit below correctly interpreted Section 1782's statutory language and relied on its earlier decision in Abdul Latif Jameel Transportation Co. v. FedEx Corp. (In re Application to Obtain Discovery for Use in Foreign Proceedings), 939 F.3d 710 (6th Cir. 2019). That said, while the Second Circuit correctly affirmed the district court's authorization of Section 1782 discovery in support of a treaty-based investor-state arbitration, it did so on the basis of a distinction between international commercial arbitration and treaty-based investor-state arbitration. See Pet. App. at 12a-22a and 52a-53a, Alix Partners, No. 21-518. That distinction, as amici further explain below, is unjustified. Section 1782 is properly interpreted to permit, but not require, district courts to authorize discovery in support of international arbitrations founded on contractual agreements and treaties alike.
I. The plain meaning of Section 1782 compels the conclusion that the statute applies to proceedings before international arbitral tribunals.
In amending Section 1782 in 1964, Congress deliberately used a term--"foreign or international tribunal"--of great generality. The term "foreign" signified a location outside the United States. The term "international" denoted a situation involving multiple nations or nationalities. And "tribunal" meant a court or other body authorized to resolve disputes authoritatively by adjudicatory means. An international arbitral tribunal fully satisfies all the required elements of a "foreign or international tribunal" within the meaning of Section 1782. Congress drew no distinctions among, and created no carve-outs from, foreign or international tribunals. That international arbitral tribunals are included in that category was, and is, unambiguous.
It is telling that Congress did not limit assistance under Section 1782 to "foreign or international courts" or "foreign or international judicial bodies," as it easily could have. "Tribunal" is indisputably the term used to identify the bodies that conduct international arbitral proceedings. Indeed, when the term "foreign or international tribunal" is mentioned, international arbitration tribunals come immediately to mind.
Thus, both before and after 1964, this Court has repeatedly used the term "tribunal" to identify such bodies. In keeping with accepted canons of statutory construction, a statute is to be interpreted in accordance with its plain meaning. Inquiry into the meaning of Section 1782 should stop there. Bostock v. Clayton Cty., Ga., 140 S. Ct. 1731, 1738 (2020).
Despite Section 1782's plain meaning, some courts have grafted onto the provision a requirement that the "foreign or international tribunal" be statesponsored. On that basis they have drawn a sharp distinction for Section 1782 purposes between two sets of international arbitral tribunals: those adjudicating treaty-based investment disputes between a private party and a State, on the one hand, and those adjudicating contract-based and contract-related disputes, on the other. Those courts have made recourse to Section 1782 available in connection with proceedings before the former, but not before the latter.
Neither the text nor the history of Section 1782 supports this distinction. The text shows that Congress chose the capacious term "tribunal," which unambiguously encompasses adjudicatory bodies. The history shows that Congress removed a previous statutory requirement that a tribunal be established by a government when it amended Section 1782 in 1964.
Nor have those courts that distinguish between international commercial arbitral tribunals and international investor-State tribunals advanced any principled policy justification for doing so.
Congress's use of the phrase "foreign or international tribunal" in other parts of Title 28 does not support a reading of Section 1782 that excludes international commercial arbitral tribunals. To the contrary, 28 U.S.C. §§ 1696 and 1781, both of which also use the phrase "foreign or international tribunal," are equally applicable to international commercial arbitral tribunals. They provide no reason to doubt the plain meaning of the words that Congress chose to use.
The question whether Section 1782 applies to international commercial arbitral tribunals was the subject of extended discussion and deliberation during the drafting of the Restatement of the U.S. Law of International Commercial and Investor-State Arbitration (Am. Law. Inst., Proposed Final Draft 2019) ("Restatement"). As approved in 2019, the Restatement takes the position that Section 1782 unqualifiedly applies to international arbitral tribunals, commercial and investor-State alike.
II. In Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), this Court's only decision on Section 1782's scope, the Court stated that the term "foreign or international tribunal" was to be interpreted broadly. Under Intel, a Section 1782 request may be granted even if (i) no adjudication is yet requested and the proceeding is at a purely investigatory stage, so long as the proceeding may culminate in an adjudication; (ii) the applicant is not a party to the foreign or international proceeding; and (iii) the documents sought to be discovered under Section 1782 would not be discoverable either in that proceeding or in an analogous U.S. proceeding. To be sure, Intel involved a proceeding before a governmental body, the Commission of the European Union. But Intel nowhere suggested that Section 1782 applies only to proceedings pending before governmental bodies.
Instead, the overriding theme that emerges from Intel is that Section 1782's applicability is subject to no per se conditions or restrictions. Categorically excluding commercial arbitral tribunals from Section 1782's scope would thus both contravene the plain meaning of the text and deviate from Intel's basic teaching.
III. There is no reason to suppose that abiding by Section 1782's clear statutory language will produce the results feared by those who oppose applying Section 1782 to international commercial arbitration. In Intel, this Court emphasized that a decision on a Section 1782 request is discretionary. Not only does a federal court have discretion to grant or deny a Section 1782 application as it considers best, but even in granting such a request, it has ample latitude to narrow, limit, or condition discovery. Accordingly, appropriate safeguards are already present.
A common objection to making Section 1782 available to parties in international arbitration is an alleged risk of interfering with arbitral tribunals' procedural prerogatives, while injecting the cost, delay, and formalism that arbitration is meant to avert. Yet the Court in Intel considered and addressed that generalized risk. The Intel Court counseled lower courts to ensure that the assistance they offer not unduly burden the targets of Section 1782 discovery and instructed them, in assessing Section 1782 requests, to take into account the foreign or international tribunal's receptivity to the requested discovery. Those instructions apply to Section 1782 requests in aid of international arbitrations. And while this Court's further guidance on how lower courts should apply the Intel discretionary factors may be desirable, the Court can provide it without rewriting Section 1782's statutory language.
IV. Finally, contrary to the concerns of several lower courts, there is no conflict between Section 1782 and Section 7 of the Federal Arbitration Act ("FAA"), 9 U.S.C. § 7. Section 7 addresses the authority of a district court to assist arbitral proceedings seated within that district in the gathering of evidence. Section 1782, by contrast, applies to foreign or international proceedings.