. <\/em>21-401). The Court held that Section 1782 is not applicable to arbitration.<\/p>\nIn other words, the position that I had advocated lost.<\/p>\n
Putting aside whether one is of the view that the Court decided the issue in ZF Automotive<\/em> correctly, there is one aspect of that decision on which I believe all would agree \u2013 it is remarkable how the ZF Automotive<\/em> decision is silent on the origin of the controversy regarding the proper interpretation of the statutory term \u201ctribunal.\u201d<\/p>\nPrior to the 2004 decision of the Supreme Court in Intel v. ADM<\/em>, 542 U.S. 241 (2004), there had been two appellate cases (NBC<\/em> and Biedermann<\/em>) holding that Section 1782 does not<\/em><\/span> apply to arbitrations. At that stage, the appellate case law was unanimous, and there was little controversy on the issue of whether Section 1782 applies to arbitration.<\/p>\nBut then Intel<\/em> was decided.<\/p>\nAlthough Intel<\/em> did not directly address the issue of an arbitrator as a tribunal, Intel<\/em> did plant the seeds for several courts to conclude that a non-U.S. arbitrator is a tribunal within the section. The main seed was a reference by the Supreme Court in Intel<\/em> to a law review article written by Professor Hans Smit. In discussing the history of the 1964 amendments to the statute, the Court stated as follows:<\/p>\nThe Rules Commission\u2019s draft, which Congress adopted, replaced [the term \u201cany judicial proceeding\u201d] with \u201ca proceeding in a foreign or international tribunal.\u201d . . . Congress understood that change to \u201cprovid[e] the possibility of U.S. judicial assistance in connection with [administrative and quasi- judicial proceedings abroad].\u201d S.Rep. No. 1580, at 7\u20138, U.S.Code Cong. & Admin. News 1964, pp. 3782, 3788; see Smit, International Litigation 1026\u20131027, and nn. 71, 73 (\u201c[t]he term \u2018tribunal\u2019 . . . includes investigating magistrates, administrative and arbitral tribunals, and quasi-judicial agencies, as well as conventional civil, commercial, criminal, and administrative courts\u201d . . .).<\/p>\n
542 U.S. at 258. In summary, in Intel<\/em> the Supreme Court cited to one of Professor Smit\u2019s law review articles and his relatively broad definition of tribunal \u2013 a definition that includes an arbitral tribunal<\/em>. Because of that quote, to many observers, the Intel<\/em> Court appeared to endorse the proposition that an arbitral tribunal is a \u201ctribunal\u201d within the meaning of Section 1782.<\/p>\nThe district courts in Roz Trading<\/em>, Hallmark Capital<\/em>, and In re Babcock Borsig AG<\/em> all joined the \u201cSmit Camp\u201d — expressing the\u00a0view that the Supreme Court \u201call but stated\u201d that Section 1782 applies to arbitrators.<\/p>\nOther courts (the \u201cAnti-Smit Camp\u201d) disagreed. In 2008, the Southern District of Texas was explicit in rejecting the contention that the Supreme Court\u2019s quote of Professor Smit had any bearing on the issue of arbitration and Section 1782:<\/p>\n
The Supreme Court was only making use of this quoted sentence from the article for the proposition that \u00a7 1782 applies to quasi-judicial agencies and administrative courts, following as it did the Court’s actual quoting of Congressional pronouncements in the text of the opinion itself to the same effect. Smit does not speak for the Supreme Court<\/em>. Until, and, if, the Supreme Court itself adopts Hans Smit’s statements as its own within the text of the opinion itself, Hans Smit’s opinions on arbitral tribunals has no more weight and authority than any other article. Smit’s opinion is not even Supreme Court dicta.<\/p>\nLa Comision Ejecutiva Hidroelecctrica Del Rio Lempa, v. El Pasp Corp<\/em>., 617 F. Supp.2d 481, 486 (S.D. Tex. 2008; emphasis added). In so concluding that the Supreme Court gave no more weight to an article written by Professor Smit than \u201cany other article,\u201d the district court in El Paso<\/em> appeared to be going out on a limb \u2013 the Intel<\/em> decision quoted three different articles authored by Professor Smit, and<\/em> the decision even referenced a legal opinion (in the form of an expert declaration) that he had filed in a district court case.<\/p>\nIt is not every day that the Supreme Court cites, in one decision, four different works authored by one law professor.<\/p>\n
At the least, it did appear that the Supreme Court in Intel<\/em>\u00a0respected\u00a0Professor Smit\u2019s views regarding interpretation of the statute. Nonetheless, in El Paso<\/em> the district court clearly rejected the view of the Smit Camp.<\/p>\nOn appeal, the Fifth Circuit affirmed, stating as follows:<\/p>\n
Nothing in the context of the quote suggests that the Court was adopting Smit’s definition of \u201ctribunal\u201d in whole.<\/p>\n
El Pasp Corp. v. La Comision Ejecutiva Hidroelecctrica Del Rio Lempa<\/em>, 2009 WL 2407189 at *2 (5th Cir. 2009).<\/p>\nOther appellate courts followed, echoing the Fifth Circuit\u2019s view \u2013 such as Servotronics<\/em>\u00a0(Seventh Circuit) and Hanwei Guo <\/em>(Second Circuit).<\/p>\nAlthough the ZF Automotive<\/em> decision adopts the view\u00a0contrary to\u00a0that of the Smit Camp, the decision is silent as to the Smit quotation \u2013 there is not a word in the ZF Automotive<\/em> decision acknowledging that the controversy arose from the quotation, in Intel<\/em>, of Professor Smit\u2019s law review article that suggests that the term \u201ctribunal\u201d includes arbitrator.<\/p>\nIn light of the extensive citation in Intel<\/em> to multiple works of Professor Smit, it seems strange (at the least) that the decision in ZF Automotive<\/em> says nothing about (a) Smit, (b) his definition of a tribunal, or (c) the disagreement that was engendered by the quotation of Smit in Intel<\/em>.<\/p>\nIn summary, twice the Supreme Court has addressed Section 1782. The first time, the Court appeared to give considerable weight to the views of Professor Smit, and the second time, the Court completely ignored him \u2013 even though the controversy before the Court arose (largely) from one of his<\/em> writings.<\/p>\nPerhaps the polar opposite approaches to the relevance of Professor Smit\u2019s views concerning Section 1782 are related to the respective authors of those two opinions. The Intel<\/em> decision was authored by Justice Ginsburg, who passed away in 2020, and the ZF Automotive<\/em> decision was authored by Justice Coney Barrett, who replaced Justice Ginsburg.<\/p>\nThere are probably observers in the Anti-Smit Camp who had hoped that the Supreme Court in ZF Automotive<\/em> would state clearly and unambiguously that the inclusion by the majority in Intel<\/em> of a quotation from Professor Smit that appeared to suggest that the definition of \u201ctribunal\u201d includes arbitrator was negligent drafting. But making such a strong statement risked giving the impression of being critical of Justice Ginsburg, and it is likely that, of all the current justices on the Court, Justice Coney Barrett had the least interest in appearing to be critical of Justice Ginsburg.<\/p>\nPrior to ZF Automotive<\/em>, lower courts had cited to Professor Smit\u2019s writings on Section 1782 regarding several issues other<\/em> than the applicability of the statute to arbitration (one such issue\u00a0is the extraterritorial applicability of the statute). It remains to be seen whether Smit\u2019s failure to make even a cameo appearance in ZF Automotive<\/em> will have any effect on section 1782 jurisprudence.<\/p>\n","protected":false},"excerpt":{"rendered":"\u00a9 2022 Eric S. Sherby A mere two hours after our firm uploaded to this blog (on June 13) a piece on section 1782 discovery (28 U.S.C. \u00a7 1782), the U.S. Supreme Court issued its decision in the consolidated cases of ZF Automotive US, Inc. v. Luxshare, Ltd. and AlixPartners, LLP, et al. v.<\/p>\n
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