Reagan W. Kapp1Reagan W. Kapp is an Online Editor of The University of Chicago Law Review and a J.D. Candidate in the University of Chicago Law School Class of 2022. She received her B.A. from Rice University in 2018.

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Over the past few decades, commercial arbitration—including private international arbitration—has steadily increased as a means of dispute resolution. According to statistical data gathered by the International Chamber of Commerce, which tracks thirteen major arbitral bodies across the globe, the number of commercial arbitration cases rose by roughly 60% from 2012 to 2019 alone. In an increasingly globalized economy rife with sophisticated corporate actors, many parties opt for arbitration clauses in international contracts. For example, Julian Nyarko’s study of over half a million international contracts (in which one party is the United States or has close ties with the United States) found that 25% included an arbitration clause. Courts and attorneys hail the salutary effects of arbitration for international business. Over time, private arbitral bodies even seem to be achieving greater gains in the efficiency of the duration of proceedings.

Not only has international arbitration increased, but so has globalization in general. DHL, an international courier, has teamed up with NYU’s Stern School of Business to produce the Global Connectedness Index, reporting that “the world is still more connected than at almost any previous point in history,” judging by flows of capital, trade, information, and people. In a world where more people and goods are crossing international boundaries, it seems natural that the U.S. Congress would take a vested interest in comity among countries. Beginning decades ago, this changing global landscape spurred legislation.

In 1964, amidst the start of the Information Age—incidentally the same year that communications satellites enabled the Tokyo Summer Olympics to be viewed contemporaneously in the United States for the first time—Congress passed a revised version of 28 U.S.C. § 1782 aimed at facilitating foreign relations. While the old § 1782 had provided limited evidence-gathering assistance to judicial proceedings in certain foreign courts, the revised version extended the possibility of obtaining such assistance to foreign bodies beyond traditional courts. The legislation has its origins in the recommendations of the Commission on International Rules of Judicial Procedure, a group Congress founded in 1958 to study judicial assistance and cooperation between the United States and other nations with an eye towards suggesting procedural improvements.

Enter the new-and-improved § 1782, which states in part:

The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. 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 . . . . The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing.

At base, this provision enables interested parties to request U.S. district courts to compel discovery of third parties within their jurisdiction. A district court has discretion to approve or deny a request, which generally gives parties to an international dispute access to discovery information they otherwise would not have.

The new § 1782 expanded the scope of the judicial assistance available to foreign bodies. Whereas the old provision laid out procedures for providing U.S. witnesses’ depositions to “any court in a foreign country with which the United States is at peace,” the revised version extends the prospect of obtaining evidence from the United States to “foreign or international tribunal[s].” In passing § 1782, Congress repealed 22 U.S.C. §§ 270–270g, which allowed members of international tribunals to administer oaths, subpoena witnesses or records, and charge contempt. It had ratified these statutes in the 1930s to accommodate intergovernmental arbitrations between the United States and other countries. The revisions to § 1782 presumably obviated the need for §§ 270–270g, but § 1782 did salvage § 270’s category of the “international tribunal.” As the Fifth Circuit observed, “the new version of § 1782 was drafted to meld its predecessor with other statutes which facilitated discovery for international government-sanctioned tribunals.”

However, expanding the scope of § 1782 beyond proceedings before conventional courts solved one problem but created another. In the decades since 1964, despite the increasing prevalence of international arbitration, the federal courts have yet to reach a consensus on whether the provision includes private arbitral tribunals or only state-sponsored bodies. Section 1782 jumped out of the frying pan and into the fire of litigation.

In 1999, the Second Circuit published National Broadcasting Co. v. Bear Stearns & Co. (2d Cir. 1999), the first appellate court opinion on the issue. It found that, although the statutory text left open the possibility that § 1782 encompasses private arbitration, the legislative history firmly closes that door. Congress “intended to cover governmental or intergovernmental arbitral tribunals and . . . other state-sponsored adjudicatory bodies.” The same year, the Fifth Circuit reached the same conclusion in Republic of Kazakhstan v. Biedermann (5th Cir. 1999)—§ 1782 enables U.S. discovery for “international government-sanctioned tribunals”—by following similar reasoning. (And ten years later, the Fifth Circuit issued a 2009 non-precedential ruling reaffirming its decision in Biedermann.)

After twenty years of harmony, the Sixth Circuit split from the Second and Fifth. In the aptly-titled In Re Application to Obtain Discovery for Use In Foreign Proceedings (6th Cir. 2019), the court applied a textualist approach, demonstrating the power of interpretative lens. Using dictionaries from the 1960s in tandem with a survey of references to “tribunals” from courts and legal sources predating the statutory revisions, the Sixth Circuit held that “American lawyers and judges have long understood . . . the word ‘tribunal’ to encompass privately contracted-for arbitral bodies.” It found “no reason to doubt” that private commercial arbitral panels fall within § 1782’s proper scope.

In March of 2020, Servotronics, Inc v. Boeing Co. (4th Cir. 2020) also extended § 1782 to private arbitration—yet it ostensibly adopted the Second and Fifth Circuits’ more limited definition of tribunals as “entities acting with the authority of the state.” It held that cases like Biedermann espoused too narrow a view of arbitration. Private arbitration in the United States and the United Kingdom, the court maintained, is authorized by the legislature, regulated by the government, and overseen by the judiciary. As such, the Fourth Circuit reasoned that even private arbitral tribunals are a product of “government-conferred authority”—and any negative policy consequences prompted by this reading of § 1782 can be stemmed via district courts exercising their discretion to deny discovery requests where undue burdens result.

Finally, In Re Guo (2d. Cir. 2020), the most recent case on this subject, gave the Second Circuit an opportunity to revisit § 1782—its 1999 and 2020 opinions bookending the entire controversy. In Guo, the Second Circuit puts to bed a number of issues. For one, it clarifies that the “foreign or international tribunal” question “does not turn on the governmental or nongovernmental origins of the administrative entity,” contravening the Fourth Circuit’s assertion about U.S. and U.K. arbitration in Servotronics. In fact, Guo states that “[n]o single factor clearly distinguishes a private international commercial arbitration from a state-sponsored one.”

Instead, the court dusted off the judiciary’s favorite tool: the multifactor test. To get at the question of whether the tribunal possesses the foundational attributes of private arbitration, the framework assesses: (1) the degree of state affiliation (i.e., “the extent to which the arbitral body is internally directed and governed by a foreign state or intergovernmental body”); (2) the functional independence possessed by the entity (the extent to which the state may alter the outcome of a decision of the arbitral tribunal); and (3) “the degree to which the parties’ contract controls the panel’s jurisdiction.” While the opinion does not frame this test as a response to the Fourth Circuit’s position in Servotronics, it nonetheless offers a subtle rejoinder to the Fourth Circuit’s expansive definition of “state-sponsored.”

Guo also addresses a persistent question that intermittently plagues courts considering the § 1782 question: what effect does (or should) the Supreme Court’s 2004 decision in Intel Corp. v. Advanced Micro Devices, Inc. (2004) have on this analysis? In Intel, the Supreme Court ruled that the Commission of the European Communities (“European Commission”), the “executive and administrative organ of the European Communities,” qualified as a “tribunal” under § 1782(a) when acting as a first-instance decisionmaker. Intel is the Supreme Court’s only decision on § 1782. In its wake, district courts divided over its consequences (or lack thereof) for the application of § 1782 to private arbitration. Parties to the circuit split cases (like those in Guo and Application to Obtain Discovery) often attempt to use the ambiguity surrounding Intel’s scope to their advantage, arguing that Intel supports their desired outcome.

In Guo, the Second Circuit endeavored to put these claims to rest. Intel, it stated, did not reach the circuit split question of whether private arbitration could constitute an international tribunal for the purposes of the statute. Instead, the Intel Court focused on what decision-making capabilities a foreign body need display in order to qualify as a tribunal at all. It determined that the Directorate General of Competition (“DG Competition”) for the European Commission, which investigates alleged violations of European competition laws and renders decisions regarding whether to pursue complaints, was indeed a tribunal under § 1782. Referencing the evolution of the statute and its legislative history, the Supreme Court inferred that “Congress understood” the § 1782 revisions to apply to “quasi-judicial proceedings abroad” like the DG Competition’s investigations. It adopted a functional test in which the result primarily turned on the DG Competition’s status as a first-instance decisionmaker (in determining whether to pursue complaints and what evidence to compile into the record to be used before the European Union’s Court of First Instance).

As the Guo court notes, this test does little to solve the problem of what to do with private international arbitral tribunals. Despite the assertions of some district courts to the contrary, Intel’s reasoning does not bear on the private-versus-state-sponsored dichotomy. The DG Competition, “the European Union’s primary antitrust law enforcer,” falls crisply into the state-sponsored category—and the courts its decisions are beholden to (which adjudicate “European Union matters”) fall likewise into the bucket of intergovernmental tribunals. The Supreme Court did not elide the issue of whether § 1782 encompasses private tribunals; it merely was not at stake in Intel. In Guo, the Second Circuit correctly observes that Intel does not alter the precedential force of its 1999 decision in National Broadcasting Co. Though no circuit has asserted that Intel resolved the private arbitration circuit split, Guo explicitly rebuts this misconception—seemingly for the benefit of those district courts that had misread Intel as holding that § 1782 includes private arbitral tribunals.

Even though no circuit court has argued that Intel abrogated the Second Circuit’s reasoning in National Broadcasting Co., the dicta-based arguments of district courts to the contrary are worth addressing at greater length than Guo’s discussion provides—especially as Guo’s greatest impact may be its confirmation that Intel does not change the legal calculus regarding § 1782. Multiple district courts have leaned heavily on one particular piece of dictum in Intel arguing for the inclusion of private arbitration—namely, a parenthetical quoting Professor Hans Smit: “[T]he term ‘tribunal’ . . . includes investigating magistrates, administrative and arbitral tribunals, and quasi-judicial agencies.” The Second Circuit rather adeptly quashes any inkling that this statement controls the outcome in Guo.

However, the Guo court does not address concerns surrounding other dicta in Intel. The Northern District of Georgia, for instance, held that when the Supreme Court “noted specifically” Congress’s intent that “judicial assistance would be available whether the foreign or international proceeding or investigation is of a criminal, civil, administrative, or other nature,” the Court was acknowledging that extra-governmental proceedings, like private arbitration, are within § 1782’s ambit. Guo could have made short order of this argument by pointing out that “other nature,” in this context, likely refers to “quasi-judicial” proceedings (much talked of in Intel) or other state-sponsored proceedings that do not fit neatly into the three named categories. As circuit and district judges continue to address the split, they will likely encounter more arguments attempting to read the tea leaves of Intel’s dicta. Guo will serve as a guidepost for addressing some arguments, but courts outside the Second Circuit confronting more novel arguments about Intel’s impact may have to forge their own paths in refuting them.

Taking a bird’s-eye view of the circuit split, one could chalk the dispute up to differences in philosophies of statutory interpretation. Viewing the problem from this angle reveals that the Second Circuit in Guo might have done well to counter the Sixth Circuit’s textualist argument with a textualist argument of its own. If Guo had bolstered the case against including private arbitration under § 1782’s umbrella with an argument primarily sourced in text, then the opinion would have successfully rebutted both of the circuits on the other side of the split (as Guo’s multifactor algorithm for identifying state-sponsored entities, discussed above, implicitly repudiates the Fourth Circuit’s conclusion in Servotronics).

In fact, in this context, a textualist case against lumping governmental and private arbitral tribunals together may not be so difficult to muster. For instance, in the late Justice Antonin Scalia’s and Bryan Garner’s instructional text, Reading Law, the authors introduce the “fixed meaning canon,” a foundational principle of textualist interpretation under which “[w]ords must be given the meaning they had when the text was adopted.”2Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, 78 (2012). While the Sixth Circuit incorporated this rule into its analysis in In Re Application to Obtain Discovery, it failed to recognize that, while the term “international tribunal” was not so well known and specialized in 1964 as to be a term of art (and therefore present in a dictionary under that phrasing), “tribunal” nevertheless was—and is—polysemous. That is, the word “tribunal” “can have multiple and often related meanings.” Where words are polysemous, Scalia and Garner explain, the textualist may glean its “ordinary, everyday meaning[ ]” from the context.

In this case, the context of “tribunal” includes the modifier “international”—so perhaps a textualist investigator might search for legal references to “international tribunals” predating the passage of the statute (rather than merely references to “tribunals”) as a means of understanding the statute’s import. It is worth noting that, of the thirty-six cases in the Westlaw legal database that both use the phrase “international tribunal” and predate 1964, only one makes mention of any kind of arbitration. Thirty-five refer to international tribunals of the intergovernmental or state-sponsored variety. Although these facts alone do not make an unassailable textualist argument for the Second Circuit’s reading of § 1782, they do raise a probability that such an argument could be successful.

Even if “tribunal” were not polysemous, its semantic status as part of a phrase would still complicate its interpretation. Among textualists, the question of how to parse the “ordinary meaning” of phrases looms large. In his forthcoming Comment in the University of Chicago Law Review, Sam Capparelli highlights this problem in Bostock v. Clayton County (2020), the Supreme Court’s 2020 case interpreting Title IX.3Sam Capparelli, Comment, In Search of Ordinary Meaning: What Can Be Learned from the Textualist Opinions of Bostock v. Clayton County?, 89 U. Chi. L. Rev. (forthcoming Oct. 2021). Capparelli demonstrates how, for textualists, the unit of analysis chosen—i.e., the word, or the phrase as a whole—can radically alter a text’s meaning. In Bostock, two self-identifying textualists, Justices Gorsuch and Kavanaugh, arrived at contradictory conclusions. Capparelli identifies the source of this conflict: Gorsuch’s interpretation strung together the meanings of individual words (what Capparelli terms “semantics”), while Kavanaugh’s dissent assesses the meaning of a phrase in its entirety (“pragmatics”).

This pragmatics-semantics distinction, instructive regarding the divide between the Bostock majority and Kavanaugh’s dissent, elucidates that the Sixth Circuit’s textualist argument in Application to Obtain Discovery does not preclude other textualist arguments in support of the opposite conclusion. The Sixth Circuit interpreted “tribunal” in isolation, using a semantic lens like Justice Gorsuch and viewing the individual word as the unit of analysis. By contrast, the Guo court could have argued for Kavanaugh’s brand of pragmatic textualism, asserting that the meaning of the phrase as a whole should supersede the meaning of the word. In light of the fact that some textualists have decried the Bostock majority as fundamentally non-textualist, a textualist argument using the pragmatics lens could prove particularly successful in support of Guo’s holding. After Bostock, a textualist can argue with some authority that the sum (the phrase) is indeed greater than its parts.

Of course, the renderers of the Guo opinion do not seem to subscribe to a textualist jurisprudence, but that fact alone would not render a textualist argument on this topic unproductive. The Supreme Court, divided as it is where jurisprudence is involved, frequently supports its opinions with arguments from multiple schools of interpretation. If the Guo court had adopted such a multifaceted defense of its interpretation, this strategy would have served not only to preempt counterarguments—perhaps from courts following the Sixth Circuit’s lead—but also to potentially persuade the Supreme Court if it should ever reach this issue. If the legal realists’ theory is correct, then presumably the more legal reasons to adopt a politically-preferable argument, the better. Such realists would assert that where, as here, one side promises much more favorable policy outcomes, courts may need less convincing—especially when it comports with their jurisprudential philosophies. At the very least, demonstrating that Guo’s holding is supported from multiple jurisprudential perspectives could promote coalition-building among judges in favor of a pragmatically desirable outcome.

Here, concerns about cost and efficiency weigh in favor of the Second Circuit’s take on § 1782. If the Sixth Circuit’s reading prevails, international commercial arbitration may suffer. Major law firms like K&L Gates are already counseling clients involved in international arbitration to “consider carefully . . . where a Section 1782 application is likely to be most successful.” As the Fifth Circuit observed in Biedermann, “arbitration’s principal advantages may be destroyed if the parties succumb to fighting over burdensome discovery requests far from the place of arbitration.” Moreover, district courts in the United States will also bear the inconvenience and cost of extra discovery. Greenberg Traurig’s website boasts “significant experience in litigating Section 1782 actions,” touting that “[i]n the Chevron v. Ecuador international arbitration alone, more than fifty orders and opinions involving Section 1782 were generated.”

In October, the Supreme Court will hear argument on the question, a chance to set the definite edges to the scope of § 1782. If the Court resolves this split in favor of decisions like In Re Application to Obtain Discovery, then district courts will shoulder additional burdens without receiving the benefit Congress envisioned: goodwill from foreign governments. A ruling in line with Guo, on the other hand, would not only more aptly advance the legislative aims of Congress, but it would also spare district courts time and expense. Crucially, such a ruling would also comport with a nuanced and faithful textualist reading of § 1782.

Ultimately, while Guo dispelled misconceptions regarding Intel’s ramifications and advanced a strong case based on § 1782’s legislative history and purpose, it left the Sixth Circuit’s textualist argument unchallenged. Where so many reasons militate in favor of Guo’s conclusion, the Supreme Court should seize the opportunity to meet that challenge with a stronger textualist argument of its own.

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Reagan W. Kapp is an Online Editor of The University of Chicago Law Review and a J.D. Candidate in the University of Chicago Law School Class of 2022. She received her B.A. from Rice University in 2018.

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Featured image: Mike Mertz, The Globe.


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