Within months of last year’s ADR Committee report, the explosion of litigation5 resulting from the Fourth and Sixth Circuit’s groundbreaking decisions resulted in numerous district courts, including in the Third, Seventh, and Ninth Circuits, splitting on whether § 1782 applied to discovery sought for use in private commercial arbitrations. District courts in the Third Circuit rejected the application of § 1782 and denied discovery; 6 a district court in the Ninth Circuit found § 1782 applied and granted discovery;7 and a district court in the Seventh Circuit at first granted discovery and then, upon reconsideration, vacated its prior order and quashed the subpoena that it issued.8 On appeal, the Seventh Circuit in Servotronics, Inc. v. Rolls-Royce PLC denied discovery, holding a “tribunal” under § 1782 “means a governmental, administrative, or quasi-governmental tribunal operating pursuant to the foreign country’s ‘practice and procedure.’”9 In March 2021, the Supreme Court granted certiorari in Servotronics to resolve the circuit split.10
This report summarizes the factual background in the Servotronics dispute, identifies the major issues addressed by the parties and the amicus curiae in their briefs to the Supreme Court, and discusses the importance of this case to both international commercial and investor-State arbitration.
B. The Factual and Legal Background of the Dispute
The dispute in Servotronics arose from a jet engine that was manufactured by Rolls-Royce and installed in an aircraft manufactured by Boeing, which caught fire during a ground test, allegedly because of a defective part manufactured by Servotronics. Boeing sought compensation for damage to its aircraft and settled with Rolls-Royce. Rolls-Royce sought reimbursement on a subrogation/indemnity claim under its supply agreement with Servotronics, which contract required the parties to arbitrate their dispute in London under the rules of the Chartered Institute of Arbitrators.
Before the parties even selected arbitrators, Servotronics filed ex parte applications for discovery under § 1782(a) in three different U.S. district courts. One of those cases was in the district court in South Carolina, which denied Servotronics’s application for discovery. Servotronics’ appealed to the Fourth Circuit and prevailed, as discussed in last year’s ADR Committee report.11 Servotronics simultaneously sought discovery in the district court in Illinois, which denied discovery. On appeal, Seventh Circuit affirmed the district court’s denial of discovery. As a result, the circuit split has been extended to another circuit, and there is now a split between the Fourth and Seventh Circuits in exactly the same case.
The Seventh Circuit sided with the Second and Fifth Circuits, finding that those decisions were better reasoned. In its decision, the Seventh Circuit reviewed dictionary definitions of the word “tribunal,” but concluded that “dictionary definitions do not unambiguously resolve whether private arbitral panels are included in the specific sense in which the terms is used here.”12 The court then examined the legislative history of § 1782(a) and concluded that the phrase “foreign or international tribunal” was referring to “state-sponsored tribunals and does not include private arbitration panels.”13 In reaching this decision, the Seventh Circuit noted that limiting the scope of “international tribunals” to governmental tribunals also avoided “serious conflict with the Federal Arbitration Act” because that Act authorized less discovery than § 1782.14
The London arbitration between Rolls-Royce and Servotronics has proceeded without waiting for the Supreme Court to rule on Servotronics’s § 1782(a) discovery. In its brief, Boeing noted that Servotronics sought extensive document production in the arbitration under the rules of the Chartered Institute of Arbitrators, including documents encompassed by its § 1782(a) subpoena to Rolls-Royce.15 Rolls-Royce’s contract with Boeing included a provision requiring Boeing to provide Rolls-Royce documents “that are reasonably necessary” for “an indemnity or subrogation claim.”16 Thus Servotronics was able to obtain such Boeing and Rolls-Royce documents as the arbitral panel believed were necessary “for the fair resolution of this arbitration.”17 The arbitrators held a full merits hearing from May 10–21, 2021. The record in the arbitration closed, post-hearing briefs were submitted June 4, 2021, and the arbitrators denied Servotronics’s motion to delay the award until December 31, 2021, to obtain documents in the U.S. proceedings.18
C. The Supreme Court Must Address a Mootness Issue
Both Rolls-Royce and Boeing assert that the Seventh Circuit’s decision became moot after the Supreme Court granted certiorari. They argue that Servotronics no longer has a legally cognizable interest because § 1782 only permits discovery when the documents will be available for use in a proceeding in a foreign or international tribunal.19 It does not appear that the arbitrators will reopen the record in the arbitration to admit new evidence, and the arbitration itself may be finally concluded before the Supreme Court either hears oral argument or renders a decision. In these circumstances, lower courts have found that § 1782 applications are moot.20
Servotronics did not brief the mootness issue in its opening brief. Accordingly, it is unclear whether it can invoke the exception to the mootness doctrine for claims that are “capable of repetition, yet evading review.”21 This exception applies “only in exceptional situations,” where (1) “there is a reasonable expectation that the same complaining party will be subjected to the same action again,” and (2) “the challenged action is in its duration too short to be fully litigated prior to cessation or expiration.”22
Concerns over the mootness issue motivated CPR, a leading think tank for dispute prevention and resolution, to file an amicus curiae brief urging the Supreme Court to set the case for a hearing before the end of the 2020 term. CPR noted that the average time to resolution of a § 1782(a) discovery application was 16.8 months, including appeals. While this timespan is indicative of how drawn-out discovery disputes frequently are in U.S. courts, it is nevertheless substantially less time than required for the average case to work its way through the district and circuit courts to a final resolution in the Supreme Court. CPR expressed concern that the § 1782 discovery issue would evade review because relatively few parties elect to challenge a discovery ruling through the circuit courts to the Supreme Court, and, during that time, the underlying arbitrations would likely be resolved, thereby rendering the appeal moot. To invoke the mootness exception, Servotronics must show it is likely to be involved in another § 1782 dispute involving a private arbitration with either Boeing or Rolls-Royce. That is a difficult standard to overcome. But if the Supreme Court dismisses Servotronics as moot, it will leave the lower courts in disarray as to the proper application of § 1782. If that happens, litigants are likely to continue forum shopping by filing multiple § 1782(a) applications in different U.S. jurisdictions in an attempt to obtain discovery to use in international arbitrations.
D. If the Supreme Court Reaches the Merits, Its Statutory Interpretation of § 1782(a) Will Likely Be Outcome Determinative
The issue in Servotronics turns on the proper statutory interpretation of the phrase “international tribunal” in § 1782(a). The seeds of the current dispute were sown in the Supreme Court’s Intel decision.23 In Intel, the Court had to determine whether the Directorate-General for Competition (DG-Competition) of the Commission of the European Communities was a “foreign or international tribunal” for purposes of § 1782(a). The majority found that the DG-Competition was a government regulator with administrative adjudicatory authority whose decisions were subject to appellate review in the European Court of Justice. As such, the Court held that the DG-Competition was a “foreign or international tribunal” under § 1782(a). In reaching this conclusion, Justice Ruth Bader Ginsberg, writing for the Court, first looked to the plan language of the statute and then engaged in an extensive review of the statute’s legislative history.
Justice Antonin Scalia issued a concurring opinion in which he argued as follows:
As today’s opinion shows, the Court’s disposition is required by the text of the statute. None of the limitations urged by petitioner finds support in the categorical language of 28 U.S.C. § 1782(a). That being so, it is not only (as I think) improper but also quite unnecessary to seek repeated support in the words of a Senate Committee Report—which, as far as we know, not even the full committee, much less the full Senate, much much less the House, and much much much less the President who signed the bill, agreed with. I have not read the entire so-called legislative history, and have no need or desire to do so, so far as I know the statements of the Senate Report may be contradicted elsewhere.
Accordingly, because the statute—the only sure expression of the will of Congress—says what the Court says it says, I join in the judgment.
The difference in approach between Justices Ginsberg and Scalia is manifest in the current circuit split. The courts of appeal that stop their statutory construction at the plain meaning of the words “international tribunal” permit discovery, whereas the courts that review and rely on the legislative history of § 1782 deny discovery in private commercial arbitrations.24
E. The Parties’ Arguments for Interpreting “Tribunal” in § 1782(a)
Servotronics’s brief argues for a broad definition of the word “tribunal,” arguing a “variety of decision-making entities” qualify as a “tribunal,” including private arbitrators, such that the Court should reverse the Seventh Circuit, “apply the statute as written,” and draw “no distinction between public, governmental and quasi-governmental tribunals and those arbitral tribunals convened at the behest of private parties to hear commercial disputes.”25 Instead of placing reliance primarily on dictionary definitions, Servotronics cites to six prior decisions in which the Supreme Court used the word “tribunal” to refer to private arbitral panels.26 Servotronics also engages in an analysis of statutory references in the U.S. Code using the phrase “international tribunal.” But while Servotronics advocates that Congress intended to define the word “tribunal” broadly, and that the “plain meaning” of the word “tribunal” includes private, commercial arbitral tribunals, it does not itself suggest a definition of the term “tribunal” to the Court.27
Rolls-Royce attacks Servotronics brief head on, citing numerous dictionary definitions that refer to tribunals as “courts” and arguing “any definition of a ‘tribunal’ broad enough to cover private arbitrators would be hopelessly vague,” and would “spawn endless line-drawing problems.”28 Next, Rolls-Royce’s brief references a search of over 3,000 pre-1964 court decisions, including at least eight decisions by the Supreme Court, that it contends construe the word “tribunal” as “a synonym for courts, quasi-judicial agencies, or intergovernmental adjudicative bodies.”29 Rolls-Royce brief asserts the handful of cases relied by Servotronics are “a sandbar in a sea of cases that Servotronics and the Sixth Circuit ignore.”30
An additional argument advanced by Rolls-Royce and Boeing against Servotronics’s definition of “tribunal” is that, in 1964, at the same time § 1782 was amended, Congress also enacted 28 U.S.C. § 169631 and § 1781.32 These statutes repeatedly use the phrase “a foreign or international tribunal” in a context that only makes sense if the word “tribunal” references a governmental tribunal, agency or officer. Because § 1696 and § 1781 are related to and were adopted at the same time as § 1782, the use of “tribunal” in those statutory provisions suggests that Congress did not intend to include private arbitral panels within the definition of “tribunal” in § 1782(a).
Next, Rolls-Royce and Boeing argue that Servotronics’s reading of § 1782 creates conflict between that provision and the Federal Arbitration Act (FAA).33 The FAA governs all arbitrations seated in the United States involving interstate or foreign commerce. Under Servotronics’s construction of § 1782, both the FAA and § 1782 would apply to some of the same “foreign or international tribunals.” Rolls-Royce and Boeing argue this would create conflicting discovery regimes between two federal statutes, an interpretation to be avoided.34
Finally, Rolls-Royce and Boeing argue that extending § 1782 to private arbitration would (1) unfairly burden U.S. Courts and companies, and (2) undermine the fundamental benefits of arbitration by adding significant time and cost, infringing the bargained-for privacy of the arbitral participants, and undermining the authority of arbitrators to control their own proceedings. Virtually no other country in the world makes its courts available to compel non-parties to an international commercial arbitration to produce documents or provide testimony. Nor do institutional sponsors of international arbitration have rules that authorize arbitrators to compel third parties to produce documents or testimony in international arbitrations. Were § 1782 held to authorize such discovery, it would disadvantage U.S. parties because they could not obtain reciprocal discovery from their counterparties overseas, potentially creating an inequality of arms. And, of course, arbitral institutions, such as the International Chamber of Commerce Court of International Arbitration (ICC), which filed an amicus curiae brief in support of neither party, expressed concern that § 1782 should not be construed in a manner that would infringe the independence of arbitral panels or interfere with the ability of arbitrators to control the scope of document disclosure, thereby allowing one party to obtain more discovery than its counterparty.
F. The Position Advocated by the Solicitor General
In many Supreme Court cases, the most important amicus brief is that of the United States.35 The United States strongly supports the position of the Rolls-Royce and Boeing, opposing the application of § 1782 to private commercial arbitration tribunals. In fact, the United States goes further, advocating that § 1782 should not be applied to investor-State arbitrations, including those governed by the Convention of the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention), which came into force on October 14, 1966.
Under the ICSID Convention, member States can agree to resolve investment disputes with nationals (investors) of other States through arbitration conducted under the auspices of the World Bank’s International Centre for Settlement of Investment Disputes (ICSID). A State’s “agreement” to arbitrate most commonly takes the form of a bilateral investment treaty (BIT). In a BIT, a State covenants to provide investment protections to investors who are nationals of the other State. Under the BIT, the host State (i.e., the State where an investment is made) extends an open offer to nationals of the other State (i.e., the home State) to arbitrate any investment disputes. This open offer is accepted by the investor when it files an arbitration against the host State in accordance with the terms of the BIT. In essence, two States agree to surrender their sovereign immunity and allow investment disputes to be decided by neutral arbitrators rather than in the national courts of the host State, which in the absence of the BIT would often be the only available forum.
At the time the Amicus Brief for the United States was filed, some U.S. district courts had concluded that investor-state arbitral panels qualified as “governmental tribunals” under § 1782. These courts reasoned that a government or one of its agencies was one of the parties to the arbitration, and the arbitrators’ jurisdiction was based on intergovernmental treaties or conventions.36 However, the United States rejected this analogy, arguing in its amicus brief:
Investor-state arbitration also does not entail adjudication of a claim by a foreign court or by a standing quasi-judicial entity of the kind Congress contemplated in enacting the 1964 Act. And unlike intergovernmental bodies of which the Rules Commission and Congress were aware in revising Section 1782, such as mixed-claims commissions, . . . investor-state arbitration does not involve state-to-state claim resolution. . . . Congress, moreover, could not have envisioned the application of Section 1782 to investor-state arbitration because that form of dispute resolution did not exist in 1964.37
Accordingly, the United States urges the Supreme Court to make clear in Servotronics that § 1782 should not extend to an analogous arbitration between an investor and a foreign state if it concludes that “Section 1782 does not extend to the type of commercial arbitration between private parties at issue here. . . .”38 Alternatively, the United States urges that “the Court should reserve judgment” on whether § 1782 applies to investor-state arbitration.39
G. The Second Circuit Allows § 1782 Discovery in Investor-State Arbitration
Less than three weeks after the United States filed its brief in Servotronics opposing the extension of § 1782 to investor-State arbitration, the Second Circuit held in The Application of the Fund v. AlixPartners, LLP 40 that an investment arbitration conducted under a BIT had a sufficient “governmental” connection to qualify for discovery § 1782. The Second Circuit’s opinion in AlixPartners is a landmark decision. The Second Circuit was the first court of appeals to hold that § 1782 discovery did not apply to private commercial arbitrations and is now the first court of appeals to hold that § 1782 applies to at least some investor-State disputes arising under BITs.
The Second Circuit’s primary rationale for refusing to apply § 1782 in commercial arbitrations, but allowing it in investor-State arbitrations, is that there is a greater degree of State affiliation in investment disputes arising under a BIT. The Second Circuit held that “the panel is convened and proceeds in an arbitration format expressly contemplated by the Treaty entered into by Lithuania and Russia in order to create a specific proceeding to resolve investment-related disputes between one foreign State and investors of the other State.”41 The Second Circuit explains the central distinction between commercial and investor-State arbitration as follows:
Critically, the arbitral panel in this case derives its adjudicatory authority from the Treaty, a bilateral investment treaty between foreign States entered into by those States to adjudicate disputes arising from certain varieties of foreign investment, rather than an agreement between purely private parties or any other species of private contract.42
The Second Circuit asserts that its holding is consistent with the legislative history of § 1782 and the intent of Congress when it amended the statute in 1964:
This holding is consistent with legislative intent. Before 1964, an older version of § 1782 provided discovery assistance “only to a tribunal established by a treaty to which the United States was a party and then only in proceedings involving a claim in which the United States or one of its nationals was interested.” In 1964, Congress amended § 1782 to “broaden” its reach beyond its original scope to allow discovery assistance to “intergovernmental tribunals not involving the United States.” Here, the arbitral panel closely resembles the tribunals included in § 1782’s pre-amendment scope, once modified to include intergovernmental tribunals. . . .43
In short, the best argument why § 1782 discovery should be available in an investor-State arbitration under a BIT is that such arbitrations are the twenty-first-century functional equivalent of nineteenth-century mixed claim commissions. States regularly established mixed claims commissions in the early 1900s as a means to resolve “diplomatic protection” issues on behalf of their nationals who were embroiled in investment disputes.44 And these mixed claims commissions received discovery assistance under the predecessor statutes to § 1782.45 The ICSID Convention now largely bars States from exercising diplomatic protections claims, requiring instead that disputes be resolved through investor-State arbitration.46 So while it is certainly true that Congress could not have known in 1964 that investment arbitration would develop as a result of widespread adoption of the ICSID Convention and BITs, today’s investment tribunals arguably serve the same governmental function as the former mixed claims commissions. Looked at through the light of this historical precedent, one can see how the Second Circuit rejects § 1782 discovery in international commercial arbitrations but allows discovery in closely related investor-State arbitrations.47
H. Conclusion
The significant uptick in § 1782 discovery litigation because of the split in the circuit courts over the proper interpretation of “foreign or international tribunal” has drawn substantial interest in international arbitration circles. There is concern by institutional providers of arbitral services, such as the ICC, that application of § 1782 has occurred in a manner that does not respect the independence of arbitral panels, and potentially impairs the ability of arbitrators to enforce the “equality of arms” between participants in international arbitration when one party can gain access to documents from U.S. courts but courts in the counterparties’ jurisdiction provide no similar access.
There is also concern that lengthy discover disputes in U.S. courts, combined the substantial costs and loss of privacy associated with those disputes, particularly when the discovery requests are not first raised to and approved by the arbitral panel, threatens to undermine not only the authority of the arbitral tribunal and the sanctity of the parties’ agreement to arbitrate, but the underlying fundamental benefits of arbitration, including less not more discovery, lower costs and greater privacy. It is hoped that the mootness issue presented in Servotronics will not prevent the Supreme Court from resolving the application of § 1782 to private, commercial arbitrations, as the fracture between the courts of appeal is growing wider as litigants forum shop for jurisdictions allowing discovery.
It seems less likely that the Supreme Court will directly address the application of § 1782 to investment arbitration. That issue is not squarely raised in the Servotronics case. Further, there is not currently a circuit split respecting the application of § 1782 to investment arbitration. But perhaps the Supreme Court’s resolution of the statutory construction issue in Servotronics will clarify what the term “foreign or international tribunal” means as it relates to investor-State arbitration.
I. Addendum
On September 8, 2021, after this article had been submitted for publication, counsel for Servotronics wrote a letter to the Clerk of the Supreme Court advising of its intent to file a dismissal motion pursuant to Rule 46 of the Rules of the Court. This motion was filed jointly by the parties on September 24. On September 29, the Court dismissed the case, seven days before it was set for oral argument on October 5, 2021. It appears that Servotronics concluded, as discussed supra in this report at pages 3–4, that the final hearing or possibly a final award in the underlying arbitration either mooted its case or made its odds of prevailing on the mootness issue remote.
Fortuitously, on October 7, 2021, a Petition for Writ of Certiorari was filed in AlixPartners, LLP v. The Fund for Protection of Investor Rights in Foreign States, No. 21-518, wherein, as discussed supra at pages 9–11, the Second Circuit held that § 1782 applied to discovery requests in investor-State arbitration despite its prior holdings that such discovery was not available in similar international commercial arbitration. AlixPartners suggests its certiorari petition presents a superior case for review compared to another certiorari petition involving § 1782 filed on September 14, 2021, ZF Automotive US, Inc. v. Luxshare, Ltd., No. 21-401. AlixPartners argues that ZF Automotive only presents the question of § 1782 in the context of a private international arbitration. By contrast, if the Court concluded that § 1782 does not reach the investor-State arbitration in AlixPartners, that reasoning would almost certainly foreclose application of the statute to private commercial arbitration.
In short, despite the dismissal of the Servotronics case, the Supreme Court has two cases pending on its docket that would potentially allow an oral argument this term to resolve the disarray in the circuit courts concerning the proper application of § 1782 to discovery applications in support of a “foreign or international tribunal.” The Supreme Court signaled interest in the ZF Automotive case on October 27, 2021, by granting an application to stay the discovery ordered by the district court pending the Court’s disposition of the petition for a writ of certiorari.
Endnotes
1. Nat’l Broad. Co., Inc. v. Bear Sterns & Co., Inc., 165 F.3d 184 (2d Cir. 1999) (rejecting the application of § 1782(a) to private commercial arbitral tribunals); In re: Guo, 965 F.3d 96 (2d Cir. 2020) (reaffirming the holding in NBC).
2. Republic of Kazakhstan v. Biedermann Int’l, 168 F.3d 880 (5th Cir. 1999) (following Second Circuit in rejecting application of § 1782(a) to private, commercial arbitral tribunals).
3. Servotronics Inc. v. Boeing Co., 954 F.3d 209 (4th Cir. 2020) (following Sixth Circuit).
4. In re Application to Obtain Discovery for Use in Foreign Proceedings, 939 F.3d 710 (6th Cir. 2019) (finding based on the plain text of § 1782(a), and without resort to legislative history, that a “foreign tribunal” includes a panel of private commercial arbitrators).
5. Brief for the International Institute for Conflict Prevention & Resolution Inc. (CPR) as Amicus Curiae in Support of Petition for Writ of Certiorari of Servotronics, Inc. at 12 n.7, Servotronics, Inc. v. Rolls-Royce PLC, S. Ct. No. 20-794 (U.S. May 5, 2021) (asserting that it identified at least fourteen new cases seeking § 1782(a) discovery between September 19, 2019 (the date of the Sixth Circuit decision), and January 5, 2021 (the date CPR submitted its amicus brief)).
6. In re Application of Storag Etzel, Civ. No. mc-209-CFC, 2020 WL 1849714 (D. Del. Apr. 13, 2020); In re Application of EWE Gasspeicher GmbH, Civ. No. 19-mc-109-RGA, 2020 WL 12726129 (D. Del. Mar. 17, 2020). On appeal to the Third Circuit, the Storag case was voluntarily dismissed with prejudice and the Ewe case appears to be active on the Third Circuit’s docket.
7. HRC-Hainan Holding Co., LLC v. Yihan Hu, Case No. 19-mc-80277-TSH, 2020 WL 906719 (N.D. Cal. Feb. 25, 2020). The Ninth Circuit is holding the case in abeyance pending the outcome of the Supreme Court’s disposition in Servotronics. See Order dated March 22, 2021, Docket #46.
8. Servotronics, Inc. v. Rolls-Royce PLC, Case No. 18-cv-7187, 2019 WL 9698535 (N.D. Ill. Apr. 22, 2019).
9. Servotronics, Inc. v. Rolls-Royce PLC, 975 F.3d 689 (7th Cir. 2020).
10. The petition for a writ of certiorari was granted on March 22, 2021. See 141 S. Ct. 1684 (2021).
11. See In re Servotronics, Inc., 2018 WL5810109 (D.S.C. Nov. 6, 2018). The district court denied discovery, but that ruling was overturned by the Fourth Circuit. See Servotronics, Inc. v. Boeing Co., 954 F.3d 209, 216 (4th Cir. 2020).
12. Servotronics, 975 F.3d at 693.
13. Id. at 695.
14. Id.
15. Brief of Respondent Boeing Co. at 6, Servotronics, Inc. v. Rolls-Royce PLC, S.Ct. No. 20-794 (U.S. June 4, 2021) [hereinafter Brief of Boeing].
16. Id. at 7.
17. Id. The remaining documents sought by Servotronics, which are the subject on the denied discovery in the Seventh Circuit’s decision, were deemed by the arbitrators to be “excessively broad,” “insufficiently focused,” or “not directed to relevant documents.” Id.
18. Id.
19. Id. at 7, 12–15; Brief of Respondent Rolls-Royce at 8, 12-14, Servotronics, Inc. v. Rolls-Royce PLC et al, S.Ct. No. 20-794 (June 21, 2021) [hereinafter Brief of Rolls-Royce].
20. See In re Ishihara Chem. Co., 251 F.3d 120, 125–26 (2d Cir. 2001) (request for § 1782 discovery moot because evidentiary hearing concluded); Comision Ejecutiva Hidroelectrica del Rio Lempa v. Neejapa Power Co., 341 F. App’x 821, 827 (3d Cir. 2009) (request for § 1782(a) discovery moot following conclusion of arbitration hearing).
21. See United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1540 (2018).
22. Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016) (mootness exception applies only in exceptional circumstances); Turner v. Rogers, 564 U.S. 431, 439–40 (2011) (requiring the same party to be subjected to multiple identical actions and that the duration of the action is too short to be fully litigated prior to cessation).
23. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004).
24. The Sixth Circuit purported to adopt a textualist interpretation of § 1782(a) and, like Justice Scalia, declined to look to the legislative history of the statute. The Sixth Circuit stated that “we do not agree that legislative history is required to resolve the scope of the word [tribunal] in § 1782(a).” The Sixth Circuit argues that the Second and Fifth Circuits “turned to legislative history too early in the interpretation process” after concluding that “‘tribunal’ is broad enough to include private arbitrations.” Because it found the phrase “international tribunal” could include private arbitrations, the Sixth Circuit concludes that “the best reading of the word in this context” is that it applies to international commercial arbitrations.
25. Brief of Petitioner Servotronics at 3, 6, Servotronics, Inc. v. Rolls-Royce PLC, S.Ct. No, 20-794 (May 6, 2021) [hereinafter Brief of Servotronics]. Because virtually any agreement in writing whereby two parties designate a third party to resolve a dispute involving interstate or foreign commerce is enforceable as an arbitration agreement under the Federal Arbitration Act, Rolls-Royce suggests (only partly tongue-in-cheek) that under Servotronics’s interpretation, “Were the oenophiles adjudicating the 1976 Judgment of Paris a ‘Tribunal,’ and if so, can future entrants in international wine competitions use section 1782 to rummage for evidence impugning the superiority of California cabernets?”
26. Brief of Servotronics, supra note 25, at 11–14.
27. Id. at 20–21. Servotronics was apparently sensitive to the risk of defining the boundaries where the term “international tribunal” begins and ends. The FAA lacks clarity respecting the division between “domestic” and “international” arbitral tribunals. Notably, Servotronics did not endorse the Fourth Circuit’s broad definition of “tribunal” as any decision-maker whose decisions are recognized by courts or otherwise governmentally endorsed.
28. Brief of Rolls-Royce, supra note 19, at 18.
29. Id. at 27–28.
30. Id. at 28.
31. 28 U.S.C. § 1696(a), titled “Service in foreign or international litigation,” is worded similarly to § 1782(a) and provides: “(a) The district court of the district in which a person resides or is found may order service upon him of any document issued in connection with a proceeding in a foreign or international tribunal. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon application of any interested person and shall direct the manner of service. Service pursuant to this subsection does not, of itself, require the recognition or enforcement in the United State of a judgment, decree, or order rendered by a foreign or international tribunal.”
32. 28 U.S.C. § 1781, titled “Transmittal of letter rogatory or request,” provides in § 1781(a)(1) as follows: “[T]o receive a letter rogatory issued, or request made, by a foreign or international tribunal, to transmit it to the tribunal, officer, or agency in the United States to whom it is addressed, and to receive and return it after execution; . . .” Rolls-Royce asserts that because §1781 “eight times” refers interchangeably to “a tribunal in the United States” and “foreign or international tribunal[s],” the “American, foreign and international ‘tribunals’ undoubtedly refer to the same types of entities.” And since U.S. “tribunals” under § 1781 “cannot encompass private arbitral panels, neither should ‘foreign or international tribunal[s].’” Brief of Rolls-Royce, supra note 19, at 36.
33. 9 U.S.C. §§ 1 et seq. (2012).
34. See Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1624 (2018).
35. See Darcy Covert & Annie J. Wang, “The Loudest Voice at the Supreme Court: The Solicitor General’s Dominance of Amicus Oral Argument,” 74 Vand. L. Rev. 681. (2021).
36. See, e.g., In re Grupo Unidos Par El Canal, S.A., No. 14-226, 2015 WL 1810135, at *8 (D. Colo. Apr. 17, 2015) (citing In re Oxus Gold PLC, No. 06-82, 2007 WL 1037387, at *5 (D.N.J. Apr. 2, 2007).
37. Brief for the United States as Amicus Curiae Supporting Respondents at 31–32, Servotronics, Inc. v. Rolls-Royce PLC, S. Ct. No. 20-794 (June 28, 2021) [hereinafter Amicus Brief for the United States].
38. Id. at 34.
39. Id.
40. Application of the Fund v. AlixPartners, LLP Slip Opinion, Case No. 20-2653 (July 15, 2021) [hereinafter AlixPartners]. The ICSID Convention does not apply in AlixPartners because the Russian Federation never ratified the ICSID Convention and, as such, is not a Contracting State of that Convention. The tribunal’s jurisdiction is drawn exclusively from the BIT.
41. Id. at 26.
42. Id. at 29.
43. Id. at 34 (internal citations omitted).
44. Historically, an “investor’s home State would treat[ ] an injury to [its] national caused by an act or omission of the host State as an international wrong against that national’s home State, for which the home State was entitled—but not bound—to seek reparation in its own name.” Amicus Brief for the U.S. at 29 (citing O. Thomas Johnson Jr., et al., From Gunboats to BITs: The Evolution of Modern Investment Law, Y.B. Int’l Investment L., & Pol’y 651 (2011). The Amicus Brief for the United States acknowledges that “[a]djudication of claims subject to diplomatic protection often took the form of resolution before mixed claims commissions established by treaties between the host and home States.” Amicus Brief for the United States, supra note 37, at 29.
45. The predecessor statute of § 1782 was initially amended on July 3, 1930, “authorizing commissioners or members of international tribunals to administer oaths, to subpoena witnesses and records, and to punish for contempt.” Hans Smit, Assistance Rendered by the United States in Proceedings Before International Tribunals, 62 Colum. L. Rev. 1264 (1962).
46. The ICSID Convention makes clear that State parties consenting to ICSID arbitration must forego any form of diplomatic protection or any international claims on behalf of their nationals unless the other Contracting State fails to comply with the ICSID award. See ICSID Convention art. 27.
47. As discuss in the Conclusion, infra, this assessment does not mean the lack of serious policy issues created by the extension of § 1782 discovery to investor-State arbitration.