IN RE: APPLICATION TO OBTAIN DISCOVERY FOR USE IN FOREIGN PROCEEDINGS. ABDUL LATIF JAMEEL TRANSPORTATION COMPANY LIMITED, Mоvant-Appellant, v. FEDEX CORPORATION, Respondent-Appellee.
No. 19-5315
United States Court of Appeals for the Sixth Circuit
September 19, 2019
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 19a0246p.06. Argued: August 8, 2019. Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 2:18-mc-00021—Jon Phipps McCalla, District Judge.
Before: COLE, Chief Judge; GRIFFIN and BUSH, Circuit Judges.
COUNSEL
ARGUED: David Livshiz, FRESHFIELDS BRUCKHAUS DERINGER, US LLP, New York, New York, for Appellant. Daniel T. French, FEDERAL EXPRESS CORPORATION, Memphis, Tennessee, for Appellee. ON BRIEF: David Livshiz, Linda H. Martin, Paige von Mehren, FRESHFIELDS BRUCKHAUS DERINGER, US LLP, New York, New York, Shea Sisk Wellford, MARTIN, TATE, MORROW & MARSTON, P.C., Memphis, Tennessee, for Appellant. Daniel T. French, Colleen Hitch Wilson, FEDERAL EXPRESS CORPORATION, Memphis, Tennessee, for Appellee.
JOHN K. BUSH, Circuit Judge. Thomas Jefferson once counseled his nephew Peter Carr on how to think: “Fix reason firmly in her seat, and call to her tribunal every fact, every opinion.”1 This case calls upon us to do just that. We must decide whether Abdul Latif Jameel Transportation Company Limited (“ALJ“), a Saudi corporation, may rely on
In its
The district court denied ALJ‘s application, holding that the phrase “foreign or international tribunal” in
The interpretive question is an issue of first impression in the Sixth Circuit, although the Supreme Court provided guidance for interpretation of
I. BACKGROUND
A. The Dispute Between ALJ and FedEx International
This dispute over statutory linguistics arises from supply-chain logistics. In 2014, after a period of negotiations, FedEx International entered a “General Service Provider” (“GSP“) contract with ALJ. Under that contract (which was amended in 2015), ALJ agreed to be FedEx International‘s delivery-services partner in Saudi Arabia, where ALJ is incorporated. By agreement of the pаrties, disputes relating to the GSP were to be arbitrated in Dubai under the rules of the Dubai International Financial Centre-London Court of International Arbitration (“DIFC-LCIA“).
In 2016, FedEx International and ALJ entered another contract, the Domestic Service Agreement (“DSA“), under which FedEx International promised to provide ALJ with “certain support services.” R. 3, PageID 38. Those parties also agreed to arbitrate disputes arising under the DSA in Saudi Arabia under the rules and laws of that country.
After FedEx International and ALJ signed the GSP contract but before they entered the DSA, FedEx Corp.—the parent of FedEx International and appellee in this case—acquired TNT Express N.V. (“TNT“), a competitor in the delivery-services market in Saudi Arabia. According to ALJ, it did not become aware of the acquisition until it was already fait accompli.
The parties disagree in part about the causes of the underlying dispute. ALJ suggests that FedEx Corp. was significantly involved in luring ALJ into a contractual relationship with FedEx International.
FedEx Corp. responds that ALJ‘s brief overstates, and makes false assertions about, FedEx Corp.‘s involvement in the negotiations and communications between FedEx International and ALJ. Additionally, FedEx Corp. disagrees that FedEx International was at fault in causing the ALJ-FedEx International rift. According to FedEx Corp., the trouble between ALJ and FedEx International started when ALJ began providing unsatisfactory service; FedEx International sought to work with ALJ but eventually gave up and decided to open up ALJ‘s position as FedEx International‘s general service partner in Saudi Arabia to bidding among various applicants.
These factual disputes aside, ALJ and FedEx Corp. agree that attempts to reconсile soon broke down completely. On March 4, 2018, ALJ commenced arbitration against FedEx International (the “Saudi Arbitration“) before a panel constituted under the rules and laws of Saudi Arabia, as provided in the DSA. A few weeks later, on March 21, FedEx International commenced arbitration against ALJ (the “DIFC-LCIA Arbitration“) before a panel constituted under the rules of the DIFC-LCIA, as provided in the GSP contract.
The DIFC-LCIA Arbitration panel consists of three members appointed by the DIFC-LCIA Arbitration Centre. According to FedEx Corp., the DIFC-LCIA Arbitration Centre is a joint venture of the London Court of International Arbitration and the DIFC Arbitration
Institute.2 The DIFC Arbitration Institute, in turn, was established by statute in the emirate of Dubai. Awards of the arbitral panel are reviewable by the DIFC Court, which was also established by statute in Dubai. The DIFC Court reviews arbitral awards for procedural soundness under the DIFC Arbitration Law, which was promulgated by the Dubai government. In addition, if a party challenges an award alleging inconsistency with UAE public policy, the award is reviewed under the law of the UAE. Aside from these review provisions, however, awards of the panel are binding on the parties. A merits hearing in the pending DIFC-LCIA Arbitration between ALJ and FedEx International is currently scheduled for November 3–9, 2019.
As for the makeup and operations of the Saudi Arbitration panel, we do not go into details because on April 30, 2019 (shortly after ALJ filed this appeal), that panel issued an award dismissing ALJ‘s claims. ALJ has challenged the dismissal and is awaiting a decision. Below, in section II(A), we explain why the dismissal of the Saudi Arbitration has rendered moot the issues in this appeal as they pertain to that arbitration proceeding.
B. Procedural History of ALJ‘s § 1782(a) Discovery Application
On May 14, 2018, ALJ filed an application for discovery under
- All Documents and Communications concerning the negotiations of the Agreements between FedEx Corp. or FedEx International, on the one hand, and ALJ, on the other hand.
- All Documents or Communications concerning or reflecting (i) any representations, assertions or assurances provided by FedEx Corp. or FedEx International, or any agent thereof, to ALJ, or any agent thereof, concerning the length of the Agreements, or FedEx Corp. or FedEx International‘s intent to enter into a long-term business relationship with ALJ; and (ii) all any [sic] knowledge
or awareness on the part of FedEx Corp. or FedEx International of ALJ‘s need to make investments in connection with ALJ‘s agreed-upon provision of services to FedEx International.
R. 1-3, PageID 16.
The district court held a hearing on ALJ‘s application on July 17, 2018, and it denied the application in an order dated March 13, 2019. In its order, the district court determined that neither the Saudi Arbitration panel nor the DIFC-LCIA Arbitration panel constituted a “foreign or international tribunal” within the meaning of
ALJ timely filed a notice of appeal, and on April 12, 2019, it moved this court to expedite the appeal in light of the pending arbitration proceedings. On April 22, 2019, we ordered an expedited briefing and argument schedule.
II. DISCUSSION
A. Whether the Saudi Arbitration Discovery Dispute is Justiciable
Before turning to the statutory interpretation inquiry, we must address a justiciability issue with regard to the Saudi Arbitration. As noted, that proceeding has been dismissed, and ALJ is appealing the dismissal. FedEx Corp. argues that because the Saudi Arbitration is no longer pending, it “is irrelevant to ALJ‘s § 1782 motion.” Appellee Br. at 9–10. Therefore, FedEx Corp. focuses its substantive arguments on the DIFC-LCIA Arbitration only.
In response, ALJ argues that if we determine that the question regarding the Saudi Arbitration is moot and inappropriate for merits consideration, we should vacate the district court‘s denial of the
the district court‘s reasoning as to that proceeding will stand and will preclude ALJ from bringing a future application.
We agree that the dismissal of the Saudi Arbitration makes the interpretive question moot with respect to that arbitration. Therefore, it would be inappropriate for us
B. Whether the DIFC-LCIA Arbitration Panel is a “Foreign or International Tribunal”
We must now determine whether the DIFC-LCIA Arbitration panel qualifies as a
We review the district court‘s decision on a question of statutory interpretation—a legal question de novo. See United States v. Kassouf, 144 F.3d 952, 955 (6th Cir. 1998). “In determining the meaning of a statutory provision, we look first to its language, giving the words used their ordinary meaning.” Artis v. District of Columbia, 138 S. Ct. 594, 603 (2018) (citation
and internal quotation marks omitted). And ordinary meaning is to be determined retrospectively: we must go back to “the time Congress enacted the statute” and discern its meaning from that point in the past. See New Prime Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019) (citations omitted); see also Wisc. Cent. Ltd. v. United States, 138 S. Ct. 2067, 2070 (2018).
Thus, we can sometimes determine the ordinary meaning of words in a statute by reference to dictionaries in use at the time the statute was enacted. See Food Marketing Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2363–64 (2019). Here, the relevant language was added to
Of course, linguistic meaning of words may not always equate to statutory meaning if the structure of the statute suggests something else. Words “must be read in their context and with a view to their place in the overall statutory scheme.” Davis v. Mich. Dep‘t of Treasury, 489 U.S. 803, 809 (1989) (citation omitted); see also Nat‘l Air Traffic Controllers Ass‘n v. Sec‘y of Dep‘t of Transp., 654 F.3d 654, 657 (6th Cir. 2011) (“Plain meaning is examined by looking at the language and design of the statute as a whole.” (citation omitted)). But if an examination of the
statute‘s text, context, and structure produces an answer to our interpretation question, we need inquire no further. See Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004).
Applying these principles here, we address the statute in which the operative language—“foreign or international tribunal“—appears. Section 1782 provides:
(a) 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 and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has powеr to administer any necessary oath and take the testimony or statement. 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. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.
A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.
(b) This chapter does not preclude a person within the United States from voluntarily giving his testimony or statement, or producing a document or other thing, for use in a proceeding in a foreign or international tribunal before any person and in any manner acceptable to him.
As an initial matter, it is important to note that we have no evidence that the phrase “foreign tribunal” or the phrase “international tribunal” is a term of art.
We note also that there is no dispute that the DIFC-LCIA arbitration is “foreign or international” in nature.4 Thus, we focus on the meaning of “tribunal,” which is hotly disputed.5
1. Dictionary Definitions
To determine the meaning of “tribunal,” we turn first to dictionary definitions. There is dictionary support for ascribing a meaning that includes private arbitral panels. For example, several reputable legal dictionaries contain definitions of “tribunal” broad enough to include private arbitrations. See Merriam-Webster‘s Dictionary of Law (1996) (“a court or forum of justice: a person or body of persons having to hear and decide disputes so as to bind the parties“); Bryan A. Garner, A Dictionary of Modern Legal Usage (2d ed. 1995) (“(1) ‘a court or other adjudicatory body[]’
extensive use in public and international law.“). Other legal dictionaries contain narrower definitions. See Black‘s Law Dictionary (5th ed. 1979) (“The whole body of judges who compose a jurisdiction; a judicial court; the jurisdiction which the judges exercise . . . .“); Ballentine‘s Law Dictionary (William S. Anderson ed., 3d ed. 1969) (“A cоurt. The seat or bench for the judge or judges of a court.“); Black‘s Law Dictionary (4th ed. 1951) (same as 1979 edition).
Turning to non-legal sources, at least two widely used English dictionaries define “tribunal” broadly enough to include private arbitrations. See Webster‘s Third New International Dictionary (1966) (“2: a court or forum of justice: a person or body of persons having authority to hear and decide disputes so as to bind the disputants . . . .“); Webster‘s New International Dictionary of the English Language (2d ed. 1950) (same). On the other hand, some English dictionaries contain narrower definitions whose inclusiveness of private proceedings is more debatable. See Random House Unabridged Dictionary (2d ed. 1993) (“1. a court of justice. 2. a place or seat of judgment.“); American Heritage Dictionary of the English Language (1976) (“1. a seat or court of justice.“); see also The Oxford English Dictionary (2d ed. 1989) (“2.a. A court of justice; a judicial assembly . . . . c. Any of various local boards of officials empowered to settle disputes, esp. between an individual and a government department, to adjudicate on fair rents, exemption from military service, etc. . . . .“).6
In sum, several legal and non-legal dictionaries contain definitions of “tribunal” broad enough to include private arbitration, while others contain narrower definitions that seem to exclude such proceedings. Because dictionaries leave room for interpretаtion, we turn to other indicators of usage to discern the word‘s linguistic meaning.
2. Use of the Word “Tribunal” in Legal Writing
A broader definition of “tribunal” finds more support in American courts’ historical and continuing usage of the word to describe private arbitrations. Cf. New Prime, 139 S. Ct. at 540 & nn.2–3 (reviewing American courts’ prior usage of a phrase to determine the meaning of that
phrase in a statute). American jurists and lawyers have long used the word “tribunal” in its broader sense: a sense that includes private, contracted-for, commercial arbitral panels. For example, Justice Joseph Story‘s Commentaries on Equity Jurisprudence used the word “tribunal” to describe private, contracted-for arbitrations:
Neither will [courts of equity] . . . compel arbitrators to make an award; nor, when they have made an award, will they compel them to disclose the grounds of their judgment. The latter doctrine stands upon the same ground of public policy, as the others; that is to say, in the first instance, not to compel a resort to these domestic tribunals, and, on the other hand, not to disturb their decisions, when made, except upon very cogent reasons.
Furthermore, courts used the word to describe private, contracted-for commerciаl arbitrations for many years before Congress added the relevant language to
Gilbert v. Burnstine, 237 N.Y.S. 171, 178 (N.Y. Sup. Ct. 1929), rev‘d, 174 N.E. 706 (N.Y. 1931); Comm‘rs v. Carey, 1 Ohio St. 463, 468 (1853); Green & Coates Sts. Passenger Ry. Co. v. Moore, 64 Pa. 79, 91 (1870); Giannopulos v. Pappas, 15 P.2d 353, 356 (Utah 1932).
The Supreme Court оf the United States, and our court, have used the same terminology. In Toledo Steamship Co. v. Zenith Transportation Co., 184 F. 391, 400 (6th Cir. 1911), this court was addressing a private agreement to arbitrate when it stated that the “question [of fault] was settled against [the appellant] by his own tribunal.” In Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 203 (1956), the Supreme Court observed: “The nature of the tribunal where suits are tried is an important part of the parcel of rights behind a cause of action. The change from a court of law to an arbitration panel may make a radical difference in ultimate result.” Bernhardt involved a contract under which the parties agreed to resolve disputes by “arbitration under New York law by the American Arbitration Association;” thus, the case involved a private arbitration. Id. at 199. As another example, in a 1955 case, Justice Hugo Black referred to the question “whether a judicial rather than an arbitration tribunal shall hear and determine [an] accounting controversy.” Baltimore Contractors v. Bodinger, 348 U.S. 176, 185 (1955) (Black, J., dissenting), overruled by Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271 (1988). Bodinger involved a contract in which the parties to a joint venture agreed to refer disputes to one of two named private arbitrators “or an accountant or auditor named by either of them.” Id. at 177. And in Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 121 n.1 (1924), the Supreme Court quoted an 1845 district court case that stated:
Courts of equity do not refuse to interfere to compel a party specifically to perform an agreement to refer to arbitration[] because they wish to discourage arbitrations . . . . But when they are asked to . . . compel the parties to appoint arbitrators whose award shall be final, they necessarily pause to consider whether such tribunals possess adequate means of giving redress . . . .
Id. (quoting Tobey v. Cty. of Bristol, 23 F. Cas. 1313, 1320 (D. Mass. 1845)).7
More recently, the Supreme Court used the phrase “international arbitral tribunal” to describe a private arbitration. In Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985), the Court was addressing a proceeding in a private arbitral body, established pursuant to contract under the rules of the Japan Commercial Arbitration Association, when it stated: “To be sure, the international arbitral tribunal owes no prior allegiance to the legal norms of particular states ... The tribunal, however, is bound to effectuate the intentions of the parties.” Id. at 636. Although Mitsubishi post-dates the 1964 amendment to
These sources show that American lawyers and judges have long understood, and still use, the word “tribunal” to encompass privately contracted-for arbitral bodies with the power to bind the contracting parties.
3. Other Uses of the Word “Tribunal” in the Statute
Many of the foregoing dictionary definitions and the cited instances of longstanding usage support a linguistic definition of “tribunal” that includes a privately contracted-for arbitral body. But if the overall context and structure of the statute indicate that Congress used the word in a different sense than its linguistic meaning, the congressional meaning controls. See Davis, 489 U.S. at 809. Here, other evidence of congressional usage does not compel a narrower understanding of that word‘s meaning than its linguistic meaning.
“[I]dentical words used in different parts of the same statute are generally presumed to have the same meaning.” IBP, Inc. v. Alvarez, 546 U.S. 21, 34 (2005) (citation omitted); accord Scalia & Garner, Reading Law 170; see also United States v. Detroit Med. Ctr., 833 F.3d 671, 676 (6th Cir. 2016). Therefore, if other uses of the word “tribunal” appeared in contexts clearly demanding a more limited reading, we would consider whether the broad ordinary meaning of that word might not be the meaning in
However, other uses of the word in the statute do not dictate a more limited reading. First, a sentence in
or the international tribunal, for taking the testimony or statement or producing the document or other thing.” Although the phrase “practice and procedure of the foreign country or the international tribunal” may appear
Title 28, Chapter 117 (which is entitled “Evidence; Depositions” and includes
“[O]ur analysis begins with the language of the statute. And where the statutory language provides a clear answer, it ends there as well.” Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999) (citations and internal quotation marks omitted). Here, the text, context, and structure of
issue decisions that bind the parties. Therefore, we need look no further to hold that the DIFC-LCIA Arbitration panel is a “foreign or international tribunal” and reverse the district court‘s judgment.
4. The Supreme Court‘s Decision in Intel
Our holding finds support also in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004). Although the Supreme Court has not addressed the particular question facing us here, its decision in Intel did address the scope of
a. The Facts and Reasoning of Intel
Intel concerned an international antitrust enforcement complaint brought by Advanced Micro Devices, Inc. (“AMD“) against Intel Corporation (“Intel“) with
Antitrust proceedings in this system proceeded as follows. The DG-Competition would receive a complaint, which it would investigate. Id. at 254. If the DG-Competition decided to pursue the complaint, it would notify the investigation‘s target, which would then be subject to a hearing. Id. at 254–55. After the hearing, the officer who conducted the hearing would give the DG-Competition a report; the DG-Competition would provide a recommendation to the Commission on whether to dismiss the complaint or hold the target liable. Id. at 255. “The Commission‘s final action dismissing the complaint or holding the target liable [was] subject to review in the Court of First Instance and the European Court of Justice.” Id.
In Intel, AMD filed a
In reaching that conclusion, the Court noted that the pre-1964 version of the statute had empowered district courts to order discovery “in any judicial proceeding pending in any court in a foreign country.” Id. at 248 (emphasis omitted); see id. at 258. In 1964, Congress replaced that phrase with “in a proceeding in a foreign or international tribunal.” Id. at 248–49, 258. According to the Intel Court, “Congress understood that change to ‘provid[e] the possibility of U.S. judicial assistance in connection with [administrative and quasi-judicial proceedings abroad].‘” Id. (alterations in original) (quoting S. Rep. No. 88–1580, at 7–8 (1964), as reprinted in 1964 U.S.C.C.A.N. 3782, 3788 (“Senate Report“)). Thus, on the Supreme Court‘s reasoning, the word “tribunal” applies to non-judicial proceedings.
In further support of its conclusion that the Commission was a “tribunal,” the Supreme Court quoted a law review article by a professor who had participated in drafting the 1964 amendments:
“[T]he term ‘tribunal’ . . . includes investigating magistrates, administrative and arbitral tribunals, and quasi-judicial agencies, as well as conventional civil, commercial, criminal, and administrative courts“; in addition to affording assistance in cases before the European Court of Justice, § 1782, as revised in 1964, “permits the rendition of proper aid in proceedings before the [European] Commission in which the Commission exercises quasi-judicial powers.”
Id. (second and third alterations in original) (emphasis added) (quoting Hans Smit, International Litigation Under the United States Code, 65 Colum. L. Rev. 1015, 1026–27 & nn.71, 73 (1965)). Finally, the Supreme Court quoted an amicus brief from
As the foregoing shows, the Supreme Court seems to have primarily focused on the decision-making power of the Commission—and Congress‘s substitution in 1964 of the broad phrase “foreign or international tribunal” for the specific phrase “judicial proceeding in a foreign country“—in reaching its conclusion that the Commission was a “tribunal.” In explaining its reasoning, the Intel Court said nothing that would make us doubt the outcome of our textual analysis in this case.9 FedEx Corp. disagrees, however, so next we will address its reading of Intel.
b. Whether Intel Limits § 1782(a) to “State-Sponsored” Arbitrations
Not disputing that some arbitrations fall within the statute‘s use of “tribunal,” FedEx Corp. argues that only a certain type of arbitration qualifies: namely, “state-sponsored” arbitration. Appellee Br. at 24. By “state-sponsored,” FedEx Corp. appears to refer to arbitral аuthorities permanently maintained by a national or international government to deal with certain categories of disputes, as opposed to arbitral authorities constituted pursuant to a contract between private parties to deal with particular commercial disputes as they arise.
FedEx Corp. does not provide any examples of “state-sponsored” arbitral bodies that would fit its reading of the statute. Instead, FedEx Corp. cites a line from the section of Intel describing four discretionary factors district courts should consider in deciding whether to grant a
FedEx Corp. argues, it “is not within the class of tribunals contemplated in Intel.” Appellee Br. at 25.
When viewed in context, however, this sentence from Intel does not do the work FedEx Corp. asks of it. First, and most saliently, this portion of the Intel opinion simply describes оne factor for district courts to consider when deciding whether to grant a
In conclusion, Intel contains no limiting principle suggesting that the ordinary meaning of “tribunal” does not apply here. FedEx Corp., however, argues that such a principle may be found in the legislative history of
5. The Second Circuit and Fifth Circuit Decisions
Both parties have spent extensive resources briefing and arguing non-textual arguments, and we recognize that our decision today is at odds with two other circuits’ decisions on this issue. See Republic of Kazakhstan v. Biedermann Int‘l, 168 F.3d 880, 883 (5th Cir. 1999) (”Biedermann“); National Broadcasting Co., Inc. v. Bear Stearns & Co., Inc., 165 F.3d 184 (2d
Cir. 1999) (”NBC“). Therefore, we will explain why the counterarguments do not dissuade us from our conclusion.
FedEx Corp. relies on NBC and Biedermann to support its argument that only “state-sponsored” proceedings fall within
Although the word “tribunal” has a broad definition and a narrow definition in dictionaries, we do not agree that legislative history is required to resolve the scope of the word in
Second, some scholars and judges have questioned the reliаbility of legislative history as an indicator of statutory meaning. See generally Scalia & Garner, Reading Law 369–90. For example, some scholars and judges have noted that comments on a statute‘s meaning in congressional reports do not undergo the rigorous process of political horse-trading, bicameralism, and presentment; thus, these commentators have argued, those comments are not
an appropriate guide to the meaning of text that did go through that process. See, e.g., John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum. L. Rev. 673, 728 (1997). A related concern is that, even assuming a court may properly consider the subjective intentions of those who voted on a bill, reliance on particular legislators’ comments in congressional reports runs into a potential empirical pitfall: those comments may fail accurately to reflect the subjective intentions of a majority of lawmakers. See, e.g., Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv. J.L. & Pub. Pol‘y 59, 59 (1988); see also Scalia & Garner, Reading Law 376.
Assuming that legislative history is a helpful aid in some cases, however, we do not find that it contradicts our conclusion here. In NBC, the Second Circuit relied largely on two facts from the legislative history of
The NBC court also discussed a second aspect of
We are unpersuaded. Even if we were inclined to permit statements in congressional reports to color our view of a statutory term, we would hesitate to rely upon such statements as did NBC. Those statements do not exclude privately constituted proceedings from the meaning of “tribunal.” If anything, what the statements make clear is Congress‘s intent to expand
For the above reasons, we discern no tension between
6. Policy Considerations
Finally, FedEx Corp. draws our attention to some national policies that it says would be hampered by a reading of “tribunal” that includes private arbitrations. Although FedEx Corp. may be correct in its assessment of some of the interests аt stake in extending discovery
assistance to private arbitral bodies, “[a]chieving a better policy outcome . . . is a task for Congress, not the courts.” See Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 13–14 (2000) (citations omitted). For us, “[i]t suffices that the natural reading of the text produces the result we announce.” Id. at 13. But even if we were inclined to countenance policy arguments, we would not agree that they crown FedEx Corp.‘s reading of
a. Breadth of § 1782(a) Discovery Compared to Federal Arbitration Act Discovery
FedEx Corp. argues that
These concerns fail to persuade us. As ALJ points out, Intel—which was decided after NBC and Biedermann—rejected similar proportionality arguments about the breadth of discovery assistance provided by
While comity and parity concerns may be important as touchstones for a district court‘s exercise of discretion in particular cases, they do not permit our insertion of a generally applicable foreign-discoverability rule into the text of § 1782(a).
. . . .
. . . When information is sought by an “interested person,” a district court could condition relief upon that person‘s reciprocal exchange of information. Moreover, the foreign tribunal can place conditions on its acceptance of the information to maintain whatever measure of parity it concludes is appropriate.
We also reject Intel‘s suggestion that a § 1782(a) applicant must show that United States law would allow discovery in domestic litigation analogous to the foreign proceeding. Section 1782 is a provision for assistance to tribunals abroad. It does not direct United States courts to engage in comparative analysis to determine whether analogous proceedings exist here.
Id. at 261–63 (emphasis added) (internal citations omitted).
The Intel Court also addressed a similar contention from Justice Breyer‘s dissent, which argued for limiting
[T]he grounds Intel urged for categorical limitations on § 1782(a)‘s scope may be relevant in determining whether a discovery order should be granted in a particular case. Spеcifically, a district court could consider whether the § 1782(a) request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States.
Id. at 264–65 (emphasis added) (internal citations omitted). Applying Intel‘s reasoning, we decline to conclude that simply because similar discovery devices may not be available in domestic private arbitration,
b. Efficiency Considerations
Next, FedEx Corp. contends that we should not read
This argument is not persuasive. As Intel explained, a district court can limit or reject “unduly intrusive or burdensome” discovery requests. Intel, 542 U.S. at 265. FedEx Corp.‘s argument seems to assume that
c. The “Twin Aims” of § 1782
Finally, FedEx Corp. argues that providing
arbitration agreements by granting discovery inconsistent with thosе agreements.” Appellant Br. at 20.
If FedEx Corp.‘s point is that parties who agree to arbitrate disputes generally want to avoid extensive discovery, we would again note that
To sum up, none of the policy arguments urged by FedEx Corp. affect our conclusion that the word “tribunal” in
C. Whether ALJ is Entitled to § 1782(a) Assistance Under Intel
Next, ALJ asks us to rule that it is entitled to the discovery requested in its application. In Intel, the Supreme Court discussed four factors fоr district courts to consider in deciding whether to grant a
First, when the person from whom discovery is sought is a participant in the foreign proceeding . . ., the need for § 1782(a) aid generally is not as apparent as it ordinarily is when evidence is sought from a nonparticipant in the matter arising abroad. . . . .
Second, . . . a court . . . may take into account the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance . . . . [Third], a district court could consider whether the § 1782(a) request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States. [Fourth], unduly intrusive or burdensome requests may be rejected or trimmed.
542 U.S. at 264–65 (internal citations omitted). The district court in this case did not address the Intel factors because doing so was unnecessary after the court concluded that
We decline to analyze the Intel factors in the first instance. “It is the general rule that a federal appellate court does not consider an issue not passеd upon below.” Jackson v. City of Cleveland, 925 F.3d 793, 812 (6th Cir. 2019) (citation omitted). Although we sometimes make an exception if “the issue is presented with sufficient clarity and completeness and its resolution will materially advance the progress of . . . already protracted litigation,” id. at 812–13 (citation omitted), the
Some of the relevant facts and circumstances are not fully presented in the appellate record here and, even if they were, require judgment calls that a trial court is better positioned than an appellate court to make. For instance, the fourth Intel factor involves consideration of
whether a discovery request is “unduly intrusive or burdensome;” if a request is overly broad, the district court may decide either to deny the request or to narrow it. See id. at 262 (noting how a district court may tailor discovery to serve the goal of “maintaining parity among adversaries“). In sum, the question of what outcome is appropriate under the Intel factors is not “presented with sufficient clarity and completeness” for us to consider it in the first instance. Jackson, 925 F.3d at 812–13 (citation omitted); see also Mees v. Buiter, 793 F.3d 291, 301 (2d Cir. 2015) (declining to “decide the [§ 1782(a)] application” in the first instance).
III. CONCLUSION
For the foregoing reasons, we REVERSE the district court‘s order and REMAND for the district court to consider whether ALJ‘s application should be granted under the Intel factors.
Notes
Even assuming that judicial reviewability is required, the DIFC-LCIA Arbitration easily passes that test. Chapter 7 of the DIFC Arbitration Law sets out several grounds on which a party may challenge an award; in addition, the Arbitration Law provides that the DIFC Court may set aside an award if it involves a subject matter not capable of resolution by arbitration under the Arbitration Law, if it is “expressly referred” to a different entity for resolution, or if it conflicts “with the public policy of the UAE.” R. 41-1, PageID 1079–80. Indeed, the grounds for setting aside an arbitral award under the FAA are similar to the grounds for doing so under the DIFC Arbitration Law. See