SECTION 1782 UPDATE: U.S. DISCOVERY IN AID OF INTERNATIONAL COMMERCIAL ARBITRATIONS

As we have explained in a previous post, Section 1782 of the United States Code (28 USC § 1782, titled "Assistance to foreign and international tribunals and to litigants before such tribunals") is a means by which "an interested person" in non-US proceedings can request an order compelling discovery from a US-based entity "for use in a proceeding in a foreign or international tribunal." It remains an open question, however, whether such proceedings include international commercial arbitrations.

In 2004, the Supreme Court of the United States in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) held that Section 1782 gave United States District Court judges broad discretion to permit foreign litigants to obtain discovery in the United States, subject to certain guidelines. But in interpreting this case – and the statute itself – US federal courts remain split as to whether parties to international commercial arbitrations may seek discovery under Section 1782, or whether the provision is meant only to extend to foreign court proceedings or perhaps arbitrations conducted under the auspices of state-sanctioned authorities.

On September 19, 2019, in the case of Abdul Latif Jameel Transportation Company v. FedEx Corporation, the US Court of Appeals for the Sixth Circuit ruled that US-style discovery under Section 1782 is available to parties in foreign commercial arbitrations. The decision comes at a time when several other circuits are on the verge of addressing the same question, and promises to shed additional light on this longstanding open question.

Sixth Circuit Court of Appeals

The appellant in the Sixth Circuit case, Abdul Latif Jameel Transportation Company (ALJTC), was FedEx's delivery services partner in Saudi Arabia. Pursuant to the agreements between the parties, within the same month, ALJTC commenced an arbitration seated in Saudi Arabia under Saudi law and procedural rules, while FedEx commenced an arbitration seated in Dubai under DIFC-LCIA rules.

The appellee parent company, FedEx Corp., was incorporated in Delaware. ALJTC filed a discovery application under Section 1782 for discovery in aid of the two foreign arbitrations, seeking to issue a subpoena for documents from FedEx Corp. as well as the deposition testimony of its corporate representative. ALJTC alleged that FedEx Corp. had been involved in contract negotiations as well as the performance of two contracts between ALJTC and FedEx's Saudi subsidiary.

In March 2019, the US District Court for the Western District of Tennessee (McCalla, J.) denied the application, holding that neither of the arbitrations between ALJTC and FedEx was a "foreign or international tribunal" falling within the scope of Section 1782.

The arbitration seated in Saudi Arabia was dismissed in April 2019, and ALJTC challenged that award before Saudi courts. The Dubai arbitration is ongoing and is proceeding to a hearing in November 2019. ALJTC requested an expedited appeal of the District Court decision.

Before the Sixth Circuit Court of Appeals, FedEx argued that in order for a non-US arbitration to qualify as a "foreign or international tribunal" within the meaning of Section 1782, it must be “state-sponsored” or otherwise derive its authority from the government, rather than being constituted ad hoc or by a private arbitral institution pursuant to a commercial contract.

The Sixth Circuit Court of Appeals interpreted the Supreme Court's decision in Intel as extending Section 1782 discovery to non-judicial proceedings, including international commercial arbitration. The court reasoned that the pre-1964 version of Section 1782 had only allowed discovery for use “in any judicial proceeding pending in any court in a foreign country" and therefore when the statute was revised in 1964, Congress must have intended to expand its scope to include international commercial tribunals.

As described below, several other US Courts of Appeals are on the cusp of deciding the same issue, which may throw the door wide open for parties in international arbitration to seek discovery from US entities.

Second Circuit Court of Appeals

The Second Circuit Court of Appeals will also soon determine whether Section 1782 can be used in aid of an international arbitration seated abroad.

In 1999, five years prior to the US Supreme Court's decision in Intel, the Second Circuit Court of Appeals had decided in National Broadcasting Co., Inc. v. Bear Stearns & Co., Inc., 165 F.3d 184 (2d Cir. 1999) that Section 1782 does not apply to international commercial arbitrations seated outside of the US. The Second Circuit has not had the opportunity to address this issue since Intel was decided.

Earlier this year, in January and February 2019, two different cases in the US District Courts for the Southern District of New York parted ways on this very question. On January 30, 2019, the court issued its decision in In re Children's Investment Fund Foundation (UK), 363 F.Supp.3d 361 (S.D.N.Y. Jan. 30, 2019) (Broderick, J.), declining to follow the 1999 NBC decision by holding that an arbitration governed by the London Court of International Arbitration rules fell within the scope of Section 1782. A month later, on February 25, 2019, in In re Application of Hanwei Guo, 2019 WL 917076 (S.D.N.Y. Feb. 25, 2019) (Furman, J.), the court denied the Section 1782 application on the grounds that a US district court must follow the Second Circuit precedent in the 1999 NBC case.

In Hanwei Guo, the petitioner had argued that the institution administering the foreign arbitration in question, the China International Economic and Trade Arbitration Commission (“CIETAC”), was originally established by the Chinese government, and therefore qualified as a state-sponsored authority falling within the scope of Section 1782. However, the court found that CIETAC now operates as a largely private commercial arbitration body, in part because CIETAC has asserted its institutional “[i]ndependence and impartiality” and explained that it is “independent of the administrative organs [of the Chinese government], and free from any administrative interference in handling cases.” The court concluded that CIETAC therefore did not qualify as a “foreign or international tribunal” that derives its authority from the government, and followed the Section Circuit's precedent in NBC in denying the Section 1782 petition.

However, the Second Circuit now has an opportunity to reconsider its 1999 NBC decision in light of the US Supreme Court's 2004 decision in Intel, as Hanwei Guo is presently on appeal with proceedings ongoing and the appellees' brief due to be filed on October 9, 2019.

Fourth and Seventh Circuits

In the context of international arbitration over a 2016 aircraft fire in South Carolina, the US Courts of Appeals for the Fourth and Seventh Circuits are also currently deciding whether parties involved in international arbitrations outside of the US can leverage Section 1782 to seek discovery from entities in the United States. Those cases concern a fire in an engine manufactured by Rolls-Royce and installed on the Boeing 787-9 Dreamliner aircraft. The petitioner, Servotronics, had manufactured another component of the engine.

In Servotronics, Inc. v. Rolls-Royce PLC (Boeing as intervenors), Case No. 1:18-cv-07187 (7th Cir.), the Seventh Circuit Court of Appeals will decide whether Section 1782 allows parties to international arbitrations to seek US discovery. The US District Court for the Northern District of Illinois (Bucklo, J.) had granted Servotronics' Section 1782 petition, which sought information relating to the aircraft’s sale and delivery, data and recordings from the day of the fire, and information about any post-incident investigation that Boeing had conducted.

Rolls-Royce and Boeing asked the district court to vacate its order and quash the subpoenas it had allowed Servotronics to serve on Boeing "in aid of" their impending arbitration. In support of this request, Rolls-Royce and Boeing argued that a private arbitral body such as the Chartered Institute of Arbitrators ("CIArb") derives its authority not from the government, but from the parties' agreement to forego the legal process and submit their disputes to private dispute resolution. Citing the California District Court's decision in In re Dubey, 949 F. Supp. 2d 990, 994 (C.D. Cal. 2013), Rolls-Royce and Boeing argued that an arbitration before such a body is therefore not a “proceeding in a foreign or international tribunal” under Section 1782, and a request for discovery in aid of such a private commercial arbitration should be denied.

The Seventh Circuit Court of Appeals has now been asked to decide whether to allow Servotronics to serve its subpoena on Boeing in connection with its pending private commercial arbitration. Oral arguments were heard on September 19, 2019 – the same day the Sixth Circuit issued its decision in Abdul Latif Jameel Transportation Company v. FedEx Corporation.

A related case arising from the same dispute is now pending in the fourth circuit. In In re Servotronics, Inc., No. 2:18-MC-00364-DCN, 2018 WL 5810109 (D.S.C. Nov. 6, 2018), the US District Court for the District of South Carolina held that Section 1782 did not apply to international commercial arbitration, and the matter has been appealed to the Fourth Circuit Court of Appeals, with a hearing tentatively scheduled for December 10-13, 2019.

Conclusion

For more than fifteen years, since the US Supreme Court's decision in Intel, legal practitioners and parties to disputes have been uncertain as to whether Section 1782 may be used to obtain discovery in aid of non-US commercial arbitrations, resulting in conflicting federal court decisions on the question. With the recent decision in the Sixth Circuit and several other Courts of Appeals soon to address the issue, practitioners should watch these developments closely. It is possible of course that we will witness a growing consensus on the interpretation of Section 1782, or perhaps continued division and disagreement among the circuits.

For further information, please contact Christian Leathley, Partner, Amal Bouchenaki, Partner, Rob Dawes, Senior Associate, Christine Sim, Associate, or your usual Herbert Smith Freehills contact.