19-781
In re: Application and Petition of Hanwei Guo
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2019
(Argued: February 28, 2020 Decided: July 8, 2020
Amended: July 9, 2020)
No. 19-781
––––––––––––––––––––––––––––––––––––
In Re: Application and Petition of Hanwei Guo for an Order to take Discovery
for Use in a Foreign Proceeding Pursuant to 28 U.S.C. 1782
––––––––––––––––––––––––––––––––––––
HANWEI GUO,
Petitioner-Appellant,
v.
DEUTSCHE BANK SECURITIES INC., J.P. MORGAN SECURITIES LLC, MERRILL LYNCH,
PIERCE, FENNER & SMITH INCORPORATED, MORGAN STANLEY & CO. LLC,
Respondents-Appellees,
CHINA PUBLISHING CORPORATION, OCEAN INTERACTIVE (BEIJING) TECHNOLOGY
CO., LTD., TENCENT MUSIC (BEIJING) CO., LTD., OCEAN INTERACTIVE (BEIJING)
CULTURE CO., LTD., TENCENT MUSIC ENTERTAINMENT GROUP, AKA CHINA MUSIC
CORPORATION,
Intervenors-Appellees.
––––––––––––––––––––––––––––––––––––
1
Before: LIVINGSTON and PARK, Circuit Judges, and UNDERHILL, District Judge. 1
Petitioner-Appellant Hanwei Guo seeks discovery under 28 U.S.C. § 1782
for use in an arbitration taking place abroad. He argues that our previous
decision in National Broadcasting Co. v. Bear Stearns & Co., 165 F.3d 184 (2d Cir.
1999), which held that private commercial arbitrations are not within § 1782(a)’s
“foreign or international tribunal” requirement, is no longer good law in light of
the Supreme Court’s decision in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S.
241 (2004). For the reasons explained below, we disagree and, applying NBC,
find that the arbitration at issue here is a private commercial arbitration outside
the scope of § 1782. Accordingly, we AFFIRM the district court’s denial of the
petition.
FOR PETITIONER-APPELLANT: RENITA SHARMA, Peter E. Calamari, Quinn
Emanuel Urquhart & Sullivan, LLP, New
York, NY.
FOR INTERVENORS-APPELLEES: FRANCES E. BIVENS, Jonathan K. Chang,
Peter M. Bozzo, Davis Polk & Wardwell,
LLP, New York, NY.
FOR RESPONDENTS-APPELLEES: Pamela A. Miller, Allen W. Burton, Gerard
A. Savaresse, O’Melveny & Myers LLP,
New York, NY.
DEBRA ANN LIVINGSTON, Circuit Judge:
28 U.S.C. § 1782(a) authorizes federal courts to compel the production of
materials “for use in a proceeding in a foreign or international tribunal” upon “the
1 Chief Judge Stefan R. Underhill, of the United States District Court for the
District of Connecticut, sitting by designation.
2
application of any interested person.” In National Broadcasting Co. v. Bear Stearns
& Co., 165 F.3d 184 (2d Cir. 1999) (“NBC”), this Court held that the phrase “foreign
or international tribunal” does not encompass “arbitral bod[ies] established by
private parties,” id. at 191. Petitioner-Appellant Hanwei Guo (“Guo”) asks us to
revisit this holding in light of a subsequent decision of the Supreme Court. See
Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) (“Intel”). Because
nothing in the Supreme Court’s Intel decision alters our prior conclusion in NBC
that § 1782(a) does not extend to private international commercial arbitrations, and
because the arbitration at issue here is a non-covered, private, international
commercial arbitration, we AFFIRM the district court’s denial of the petition.
BACKGROUND
I.
From 2012 to 2013, Petitioner-Appellant Hanwei Guo invested nearly CNY
180 million (approximately $26 million) in companies known as Ocean
Technology, Ocean Music, and Ocean Culture (“Ocean Entities”), founded by a
music executive and lawyer named Guomin Xie (“Xie”). These businesses
operated in the Chinese music streaming market. Xie was the head of the Ocean
Entities and China Music Corporation, a holding company allegedly created to
3
facilitate the Ocean Entities’ access to foreign equity markets. Through a series
of transactions that Guo asserts were misleading, extortionate, and fraudulent,
Guo sold his shares in the Ocean Entities for less than they were allegedly worth.
Eventually, following a series of mergers, Ocean Music became part of Tencent
Music, by some metrics one of the largest music streaming services in the world.
In September 2018, shortly before Tencent Music conducted its American
IPO and pursuant to agreements among Guo, Xie, and others, Guo initiated
arbitration against Xie, Tencent Music, and several other entities before the China
International Economic and Trade Arbitration Commission (“CIETAC”). Guo
claimed that Xie and the other respondents had defrauded him and that he was
entitled to be paid compensation and to have his equity stake restored.
Subsequently, at least one respondent filed counterclaims, and the parties selected
an arbitral panel in April 2019. The matter remains pending, with a hearing
before the arbitral panel scheduled to proceed on July 21, 2020.
II.
According to declarations submitted by the parties, CIETAC was
established by the People’s Republic of China in 1954 as part of the China Council
for the Promotion of International Trade (“CCPIT”). CIETAC’s administrative
4
leadership is appointed by the CCPIT, although the arbitrators who preside over
any given case are selected by the parties from a list that is compiled by CIETAC
without CCPIT involvement. Potential arbitrators are not required to have any
ties to the Chinese government or to undergo screening by any entity other than
CIETAC, although Chinese arbitration law does set certain minimum
qualifications for arbitrators. CIETAC arbitrations are confidential both during
the proceedings and after their completion. Both CIETAC and CCPIT receive at
least some funding from the Chinese government.
CIETAC’s jurisdiction is restricted to disputes between private parties who
have elected CIETAC arbitration through contractual agreement, as well as certain
contractual disputes arising between investors and Chinese governmental entities.
CIETAC has promulgated two different sets of rules to govern these two varieties
of arbitration. This case, as a dispute among private parties, is governed by the
rules set out by CIETAC for private arbitration. Under this ruleset, CIETAC’s
jurisdiction over any particular matter depends entirely on the agreement of the
parties.
In any given arbitration, CIETAC operates independently of the Chinese
government, with CIETAC arbitrators having the power to issue awards that
5
Chinese law will recognize as “final and binding.” Joint App’x 683. Chinese
arbitration law, however, provides for certain circumstances in which awards may
be set aside as contrary to Chinese law, such as situations involving fraud or
bribery of arbitrators or instances in which there was an initial lack of an
agreement to arbitrate.
As part of the arbitration process, CIETAC rules provide for discovery,
including a mechanism by which the arbitration panel may order parties to
produce evidence.
III.
In December 2018, Guo filed this petition for discovery pursuant to 28 U.S.C.
§ 1782(a) in the United States District Court for the Southern District of New York
(Furman, J.). Guo sought discovery from four investment banks, the
Respondents-Appellees here, related to their work as underwriters in the Tencent
Music IPO. 2 Guo alleged that he intended to use the documents in his pending
CIETAC arbitration against Xie and the Ocean Entities. Intervenors-Appellees
China Publishing Corporation, Ocean Interactive (Beijing) Technology Co., Ltd.,
2The banks targeted by Guo’s application are Deutsche Bank Securities Inc.; J.P.
Morgan Securities LLC; Merrill Lynch, Pierce, Fenner & Smith Incorporated; and
Morgan Stanley & Co. LLC.
6
Tencent Music (Beijing) Co., Ltd., Ocean Interactive (Beijing) Culture Co., Ltd., and
Tencent Music Entertainment Group, A.K.A. China Music Corporation intervened
below to oppose the petition. The district court denied Guo’s application on
February 25, 2019. In re Application of Hanwei Guo for an Order to Take Discovery for
Use in a Foreign Proceeding Pursuant to 28 U.S.C. § 1782, No. 18-MC-561 (JMF), 2019
WL 917076, at *3 (S.D.N.Y. Feb. 25, 2019). The court’s determination was based
on its conclusions that (1) NBC remained good law in the wake of the Supreme
Court’s decision in Intel, such that the district court was bound by the Second
Circuit’s prior determination that § 1782(a) does not apply to private arbitration;
and (2) CIETAC was “closer to a private arbitral body than it is to a ‘governmental
. . . tribunal[]’ or ‘other state-sponsored adjudicatory bod[y],’” such that Guo’s
application was foreclosed by NBC. Id. at *2–3 (quoting NBC, 165 F.3d at 190).
Guo timely appealed, challenging both aspects of the district court’s
holding. On appeal, Guo contends that private arbitrations are within the scope
of § 1782(a) and that, even if they were not, the CIETAC arbitration qualifies as an
arbitration under a state-sponsored adjudicatory body.
7
DISCUSSION
The two questions on appeal are whether private international commercial
arbitrations are proceedings for which § 1782 may be invoked and, if not, whether
CIETAC arbitration is a private arbitration and therefore outside the scope of
§ 1782.
I.
28 U.S.C. § 1782 provides for “federal-court assistance in gathering evidence
for use in foreign tribunals.” Intel, 542 U.S. at 247. Upon the “application of any
interested person,” a district court may, in its discretion, “order [a person] 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.” 28 U.S.C. § 1782(a).
The statute imposes several mandatory requirements for a § 1782
application, including that “(1) the person from whom discovery is sought resides
(or is found) in the district of the district court to which the application is made,
(2) the discovery is for use in a foreign proceeding before a foreign [or
international] tribunal, and (3) the application is made by a foreign or international
tribunal or any interested person.” Mees v. Buiter, 793 F.3d 291, 297 (2d Cir. 2015)
8
(quoting Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76, 80 (2d Cir.
2012)). 3 This Court reviews the district court’s ruling “that a petition satisfies
[§] 1782’s jurisdictional [i.e. statutory] requirements” de novo. Kiobel by Samkalden
v. Cravath, Swaine & Moore LLP, 895 F.3d 238, 243 (2d Cir. 2018). If the statutory
preconditions are met, district courts exercise discretion to determine whether and
to what extent the requested discovery should be permitted, guided by a set of
factors outlined by the Supreme Court in Intel. See Mees, 793 F.3d at 297–98 (citing
Intel, 542 U.S. at 264–65).
This Court has previously analyzed the contours of the statute’s “foreign or
international tribunal” requirement with respect to arbitration. In NBC, we
considered whether a “private commercial arbitration administered by the
International Chamber of Commerce (‘ICC’), a private organization based in Paris,
France” was a “proceeding in a foreign or international tribunal” for purposes of
§ 1782(a). 165 F.3d at 186. We held that it was not. Id. at 191.
Our decision in NBC concluded that: (1) the statutory text, namely the
phrase “foreign or international tribunal,” was ambiguous as to the inclusion of
3 While our case law has often focused on these three elements, the statute also
imposes other requirements, including that the discovery not be “in violation of any
legally applicable privilege.” 28 U.S.C. § 1782(a).
9
private arbitrations; (2) the legislative and statutory history of the insertion of the
phrase “foreign or international tribunal” into § 1782(a) demonstrated that the
statute did not apply to private arbitration; and (3) a contrary reading would
impair the efficient and expeditious conduct of arbitrations. Id. at 188–91.
Following its threshold finding of ambiguity, id. at 188, the Court turned to
statutory and legislative history, first determining that the phrase “foreign or
international tribunal” had been introduced into the statute for the purpose of
expanding the original formulation, which provided for assistance only with
respect to “judicial proceeding[s] in any court in a foreign country.” Id. at 189 &
n.4 (quoting 28 U.S.C. § 1782 (1958) (emphasis added by NBC)).
Notwithstanding this expanding purpose, the Court’s careful examination of
House and Senate reports indicated that the enacting Congress did not intend for
the statute to reach as far as private arbitration, given the explicit discussion in the
reports of the collection of evidence for use “before a foreign administrative
tribunal or quasi-judicial agency” and the absence of any reference to private
dispute resolution. Id. at 189 (first citing H.R. Rep. No. 88-1052, at 9 (1963)
(“House Report”); then citing S. Rep. No. 88-1580 (1964), reprinted in 1964
U.S.C.C.A.N. 3782, 3788 (“Senate Report”)).
10
The Court also found compelling the legislative history surrounding the
replacement by the new § 1782 of several statutory provisions previously codified
at 22 U.S.C. §§ 270–270g. The phrase “international tribunal” in the new statute
derived directly from §§ 270–270g—provisions that without “question . . . applied
only to intergovernmental tribunals.” Id. at 189. House and Senate reports
indicated that the new § 1782 was intended to expand the scope of the prior statute
to encompass intergovernmental tribunals in which the United States was not a
party, but fell far short of conveying any intention to effect the much more
dramatic expansion into private arbitration. Id. at 190 (citing Senate Report at
3784–85, 3788–89). The Court further noted that contemporaneous academic
literature relied upon by Congress supported the position that the “tribunals” in
§ 1782 referred particularly to intergovernmental arbitration and other state-
sponsored dispute resolution mechanisms. Id. at 190 (citing Hans Smit, Assistance
Rendered by the United States in Proceedings Before International Tribunals, 62 Colum.
L. Rev. 1264, 1267 (1962)). On this basis, alongside policy considerations
weighing strongly in favor of preserving the efficiency and cost-effectiveness of
private arbitration, the Court concluded that private arbitrations do not qualify as
“foreign or international tribunal[s]” within the meaning of § 1782(a). Id. at 191.
11
Shortly after our decision in NBC, the Fifth Circuit followed suit in Republic
of Kazakhstan v. Biedermann International, 168 F.3d 880 (5th Cir. 1999)
(“Biedermann”). Based on its own analysis of legislative history, the near-uniform
limitation of references to “arbitral tribunals” within the U.S. Code to adjuncts of
foreign governments or international agencies, and policy considerations, the Fifth
Circuit joined the Second Circuit in holding that § 1782 does not apply to private
international arbitrations. Id. at 881–83.
Five years after NBC, the Supreme Court issued its seminal decision in
Intel—the only Supreme Court case to address § 1782. Intel clarified numerous
aspects of the statute, holding that non-litigants may be “interested person[s],” 542
U.S. at 256–57; that a proceeding need only be “within reasonable contemplation,”
rather than “imminent”—expressly overruling Second Circuit precedent to the
contrary, id. at 258–59; and that the statute contains no implicit “foreign-
discoverability requirement,” id. at 260–63. Most relevant here, the Court also
considered whether the Directorate General-Competition of the Commission of
the European Communities, a public entity, constitutes a “tribunal” under § 1782.
See id. at 257–58. Adopting a functional approach, the Court held that that
Directorate General-Competition, as a “quasi-judicial agenc[y]” with a proof-
12
gathering function, qualifies as a tribunal “to the extent that it acts as a first-
instance decisionmaker,” with its decisions reviewed by the Court of First Instance
and the European Court of Justice (both of which were clearly “tribunals”). Id.
The distinct question resolved by NBC—whether a private international
arbitration tribunal qualifies as a “tribunal” under § 1782—was not before the Intel
Court.
Following Intel, courts have taken diverging approaches to the question of
whether private foreign arbitrations fall within the scope of § 1782. The Fifth
Circuit, for its part, reaffirmed its holding in Biedermann, reasoning in a non-
precedential opinion that Intel had no effect on its prior analysis. El Paso Corp. v.
La Comision Ejecutiva Hidroelectrica Del Rio Lempa, 341 F. App’x 31, 33–34 (5th Cir.
2009). By contrast, two circuits considering the question for the first time reached
the opposite conclusion than that originally reached by the Second and Fifth
Circuits. In In re Application to Obtain Discovery for Use in Foreign Proceedings, 939
F.3d 710 (6th Cir. 2019), the Sixth Circuit held that § 1782 applies to private
arbitrations, based on its analysis of the statutory text, context, and history, id. at
714. The Sixth Circuit acknowledged that its holding was inconsistent with our
decision in NBC, explaining that it found the Second Circuit’s statutory
13
interpretation analysis unpersuasive. Id. at 726–28. The Sixth Circuit’s opinion
did not suggest, however, that Intel overruled or otherwise undermined NBC, or
that Intel compelled the outcome in its case; rather, the court reasoned that its
decision was merely consistent with the Supreme Court’s decision because “the
Intel Court said nothing that would make [the court] doubt the outcome of [its]
textual analysis” and “Intel contains no limiting principle suggesting that” the
word “tribunal” should be read to exclude private arbitration. Id. at 725–26.
Recently, the Fourth Circuit also addressed the question, holding that § 1782
extends to private arbitration in the United Kingdom (“U.K.”). See Servotronics,
Inc. v. Boeing Co., 954 F.3d 209, 210 (4th Cir. 2020). The Fourth Circuit based its
ruling on the determination that arbitration in the U.K. under the U.K. Arbitration
Act of 1996, like arbitration in the United States under the Federal Arbitration Act
(“FAA”), is “clearly” a “product of government-conferred authority,” and that
therefore the U.K. arbitration at issue in the case fell within the scope of § 1782
even under the construction adopted by the Second and Fifth Circuits, which
limited § 1782 to tribunals “acting with the authority of the State.” Id. at 214
(internal quotation marks omitted). Thus, as with the Sixth Circuit’s opinion, no
part of the Fourth Circuit’s opinion rested on the notion that Intel undermined
14
NBC or otherwise required a reading of § 1782 that encompasses private
arbitration. 4
Meanwhile, district courts within the Second Circuit have split on the
question whether NBC remains intact post-Intel. Compare, e.g., In re Children’s Inv.
Fund Found. (U.K.), 363 F. Supp. 3d 361, 369–70 (S.D.N.Y. 2019), with, e.g., In re
Petrobras Sec. Litig., 393 F. Supp. 3d 376, 385 (S.D.N.Y. 2019). We now clarify that
NBC remains binding law in this Circuit.
II.
Contrary to Guo’s insistence that NBC has been overruled or otherwise
undermined by the Supreme Court’s decision in Intel, we conclude that NBC’s
holding remains good law. “It is a longstanding rule of our Circuit that a three-
judge panel is bound by a prior panel’s decision until it is overruled either by this
Court sitting en banc or by the Supreme Court.” Doscher v. Sea Port Grp. Sec., LLC,
4 The Eleventh Circuit has also considered the question whether a private
arbitration qualifies as a tribunal under § 1782, initially holding that the private
arbitration in question came within the scope of § 1782 under the Supreme Court’s
functional analysis in Intel; however, the court ultimately withdrew that decision and
issued a new opinion that took no position on the question. See Consorcio Ecuatoriano de
Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 685 F.3d 987, 993–98 (11th Cir. 2012),
vacated and superseded by Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding
(USA) Inc., 747 F.3d 1262, 1270 n.4 (11th Cir. 2014) (“leav[ing] the resolution of the matter
for another day”).
15
832 F.3d 372, 378 (2d Cir. 2016). The Supreme Court “need not address the
precise issue decided by the panel,” In re Zarnel, 619 F.3d 156, 168 (2d Cir. 2010);
however, in order to qualify as an intervening decision that casts sufficient doubt
upon a prior ruling as to render it non-binding, “the Supreme Court’s conclusion
in a particular case must have broken the link on which we premised our prior
decision or undermined an assumption of that decision,” Doscher, 832 F.3d at 378
(internal quotation marks, alterations, and citations omitted). “If a panel
concludes that a particular Supreme Court decision does not cast sufficient doubt
on our precedent, the precedent continues to be binding.” Doscher, 832 F.3d at
378.
Intel does not cast “sufficient doubt” on the reasoning or holding of NBC.
Id. Critically, the question whether foreign private arbitral bodies qualify as
tribunals under § 1782(a) was not before the Intel Court, which considered only
whether the Directorate General-Competition, a public entity, qualified as such a
tribunal. The only language in Intel that is even arguably in tension with NBC’s
determination that the statute is limited to state-sponsored tribunals is a passing
reference in dicta: namely, a parenthetical quotation of a footnote in an article by
Professor Hans Smit, setting forth the proposition that “[t]he term ‘tribunal’ . . .
16
includes investigating magistrates, administrative and arbitral tribunals, and quasi-
judicial agencies, as well as conventional civil, commercial, criminal, and
administrative courts.” 542 U.S. at 258 (emphasis added) (quoting Hans Smit,
International Litigation Under the United States Code, 65 Colum. L. Rev. 1015, 1026
n.71 (1965)). We doubt whether such a fleeting reference in dicta could ever
sufficiently undermine a prior opinion of this Court as to deprive it of precedential
force. Indeed, even the Sixth Circuit, in reaching an outcome contrary to NBC,
refused to ascribe such significance to the language in question. See In re
Application, 939 F.3d at 725 n.9 (determining only that “the Supreme Court’s
approving quotation of the Smit article . . . provides no affirmative support” for a
reading of the statute that excludes private arbitration).
Moreover, even assuming that cursory dicta could have the effect of
abrogating our precedent, the language quoted by Intel had no such impact, as it
is not definitively at odds with NBC. Professor Smit’s reference to “arbitral
tribunals” does not necessarily encompass private tribunals, particularly in light
of his view, expressed in a 1962 article cited in NBC, that “an international tribunal
owes both its existence and its powers to an international agreement.” Hans
Smit, Assistance Rendered by the United States in Proceedings Before International
17
Tribunals, 62 Colum. L. Rev. 1264, 1267 (1962); see also NBC, 165 F.3d at 189. Intel’s
indirect reference to “arbitral tribunals” can thus be read consistently with NBC as
referring solely to state-sponsored arbitral bodies. At bottom, Intel’s reference to
Professor Smit’s article casts no doubt upon our analysis in NBC. 5
Nor, as Guo argues, does Intel’s discussion of § 1782’s legislative history and
general principles of statutory construction undermine our prior decision. As to
legislative history, Intel considered some of the same congressional reports
analyzed in NBC, concluding that the statute’s introduction of the word “tribunal”
was intended to expand the types of proceedings in which assistance would be
available. See 542 U.S. at 248–49 (first citing Senate Report at 3788; then citing
House Report at 9). NBC is in accord: the opinion explicitly acknowledged that
5 We are likewise unconvinced by Professor Smit’s subsequent scholarship
claiming that § 1782 should be read to include private as well as governmental
arbitration, which is extensively relied upon by Guo on appeal. See Appellant’s Br. at
28–31 (citing Hans Smit, The Supreme Court Rules on the Proper Interpretation of Section 1782:
Its Potential Significance for International Arbitration, 14 Am. Rev. Int’l Arb. 295 (2003)). As
we previously explained in NBC, while Congress specifically relied on Professor Smit’s
1962 article in formulating the statute and that article was therefore particularly probative
of the statute’s meaning, his subsequent scholarship, which was penned decades later
and adopted a stance that is seemingly inconsistent with the 1962 article, “does not
purport to rely upon any special knowledge concerning legislative intent” and therefore
does not share the unique status of his earlier work. NBC, 165 F.3d at 190 & n.6. Guo
has identified no aspect of Professor Smit’s 2003 article that persuades us that Intel
requires us to set aside our prior case law.
18
Congress drafted the provision in question with an intent to expand the scope of
coverage. See 165 F.3d at 189. The fact that NBC went on to determine that this
expanding function did not extend so far as to incorporate private arbitration—a
question that the Intel Court had no occasion to consider—does not render NBC’s
treatment of legislative history incompatible with that of Intel. Contrary to Guo’s
contention on appeal, NBC’s refusal to read such a sweeping expansion into the
statute in the absence of clear statutory language or any indication of congressional
intent is consistent with Intel’s observation, in rejecting a foreign-discoverability
requirement, that “[i]f Congress had intended to impose such a sweeping
restriction on the district court’s discretion, at a time when it was enacting
liberalizing amendments to the statute, it would have included statutory language
to that effect.” 542 U.S. at 260 (quoting In re Application of Gianoli Aldunate, 3 F.3d
54, 59 (2d Cir. 1993)). Ultimately, Intel’s approach to interpreting § 1782,
including its emphasis on the primacy of plain textual meaning, is based on
general principles of statutory construction that cast no doubt on our precedent.
NBC’s thorough analysis, which began with a threshold finding of ambiguity
before turning to legislative history and purpose to elucidate the meaning of the
statutory language, comports with both Intel’s reiteration of broad principles and
19
its specific analysis of § 1782. 6
Having thus concluded that we remain bound by NBC, we turn to the
question whether the CIETAC arbitration qualifies as a private international
commercial arbitration, thereby falling outside the scope of § 1782.
III.
The district court correctly concluded that the CIETAC arbitration is a
private international commercial arbitration outside the scope of § 1782(a)’s
“proceeding in a foreign or international tribunal” requirement.
NBC made clear that “international arbitral panels created exclusively by
private parties” are not “foreign or international tribunals” within the meaning of
§ 1782. 165 F.3d at 190. A closer inquiry is required where, as here, the arbitral
6 Moreover, we are unpersuaded by the argument that Intel adopted a functional
approach to the meaning of “tribunal” that supplants our statutory analysis in NBC.
While not specifically advanced by Guo on appeal, this line of reasoning surfaces in some
of the out-of-circuit district court decisions cited by Guo. See, e.g., In re Roz Trading Ltd.,
469 F. Supp. 2d 1221, 1228 (N.D. Ga. 2006). The argument is meritless. While Intel
analyzed the functions of the Directorate General-Competition for the purposes of
determining whether that body qualified as a tribunal, it had no occasion to first consider
the threshold question we confronted in NBC: namely, whether a wholly private entity
can constitute a tribunal under § 1782. Nothing in Intel indicates that a functional test
displaces ordinary statutory interpretation for purposes of that threshold determination.
Indeed, such an approach would be untenable, as innumerable entities could satisfy the
functional criteria of a “tribunal” referenced in Intel, while nevertheless clearly falling
outside the scope of a “foreign or international tribunal” under the statute—for example,
any domestic court.
20
body was originally created through state action, yet subsequently evolved such
that it arguably no longer qualifies as a “governmental or intergovernmental
arbitral tribunal[,] . . . conventional court[, or] . . . other state-sponsored
adjudicatory bod[y].” Id. We now clarify that the “foreign or international
tribunal” inquiry does not turn on the governmental or nongovernmental origins
of the administrative entity in question. No single factor clearly distinguishes a
private international commercial arbitration from a state-sponsored one. Rather,
echoing the functional approach adopted by the Intel court in determining whether
the Directorate General-Competition qualified as a tribunal, see 542 U.S. at 257–58,
we consider a range of factors, including the degree of state affiliation and
functional independence possessed by the entity, as well as the degree to which
the parties’ contract controls the panel’s jurisdiction. In short, the inquiry is
whether the body in question possesses the functional attributes most commonly
associated with private arbitration. Here, considering these factors, it is clear that
CIETAC arbitrations are private international commercial arbitrations falling
outside the ambit of § 1782.
Beginning with state affiliation, our focus is on the extent to which the
arbitral body is internally directed and governed by a foreign state or
21
intergovernmental body. CIETAC was, all parties agree, originally founded by
the Chinese government. CIETAC now, however, functions essentially
independently of the Chinese government in the “administration of its arbitration
cases.” Joint App’x 682. According to the parties’ declarations, CIETAC
maintains confidentiality from all non-participants during and after arbitration,
limiting opportunities for ex parte intervention by state officials. CIETAC offers
parties a pool of arbitrators who are not selected by any entity other than CIETAC
and who do not purport to act on behalf of, or have any mandatory affiliation with,
the Chinese government. Indeed, the arbitrators appear to come from many
different backgrounds and nations. These facts suggest that CIETAC possesses a
high degree of independence and autonomy, and, conversely, a low degree of state
affiliation.
We next consider the degree to which a state possesses the authority to
intervene to alter the outcome of an arbitration after the panel has rendered a
decision. Here, the limited review provided to parties to CIETAC arbitrations in
Chinese courts and the role of the Chinese government in enforcing awards are
not enough to render CIETAC a “foreign or international tribunal.” As an initial
matter, the grounds for setting aside an arbitration under Chinese law cited by
22
Guo overlap extensively with the grounds upon which a party could petition a
U.S. court to set aside an arbitration award, including a lack of agreement to
arbitrate, the scope of the matters to be arbitrated, improper appointment of
arbitrators, and fraud or bribery by the arbitrators or parties. See 9 U.S.C. §§ 2, 3,
4, 5. And neither party points to any evidence that the Chinese government has
any other basis to intervene in arbitrations other than those cited by Guo.
Because the provisions of Chinese law relied on by Guo merely control the
enforceability of arbitrations in China in almost the same manner and to the same
extent as the FAA in the United States, they do not convert CIETAC arbitrations
into state-sponsored endeavors. Furthermore, the fact that parties to the
arbitration in some cases rely on Chinese courts to enforce the “final and binding”
arbitration awards is of no import. Joint App’x 683. Otherwise, given that
governments around the world commit to enforcing arbitration awards in their
courts under the Convention on the Recognition and Enforcement of Foreign
Arbitral Awards (the “New York Convention”), the majority of arbitration which
takes place abroad would fall within the scope of § 1782, erasing the distinction
drawn by NBC. See 9 U.S.C. §§ 2, 9; NBC, 165 F.3d at 187 (discussing the New
York Convention). The fact that CIETAC panels may ultimately rely on the
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authority of China to enforce their decisions does not mean that CIETAC
arbitration panels are public entities, any more than a corporation becomes a
public entity because of its reliance on a given state’s commitment to enforce its
contracts or uphold its charter.
Turning to the nature of the jurisdiction possessed by the panel, the CIETAC
panel derives its jurisdiction exclusively from the agreement of the parties and has
no jurisdiction except by the parties’ consent. By contrast, state-affiliated
tribunals often possess some degree of government-backed jurisdiction that one
party may invoke even absent the other’s consent. Because CIETAC’s
jurisdiction flows exclusively from the parties and not any governmental grant of
authority, CIETAC more closely resembles a private arbitration. 7
7 For the same reasons, we are unpersuaded by Guo’s argument that CIETAC
most closely resembles arbitration under bilateral investment treaties. While an arbitral
body under a bilateral investment treaty may be a “foreign or international tribunal,” the
arbitration here derives adjudicatory authority solely from the parties’ agreement, rather
than the intervention or license of any government to adjudicate cases arising from
certain varieties of foreign investment. Additionally, the dispute here is between two
private parties, while arbitration under bilateral investment treaties is typically between
a private party and a state. See Lucas V.M. Bento, The Globalization of Discovery: The
Law and Practice Under 28 U.S.C. § 1782 109 (2020) (discussing bilateral investment treaties
and their interaction with § 1782(a), and noting that they are typically structured to
resolve disputes in “investor-state” arbitrations).
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Moreover, the ability of the parties to select their own arbitrators further
suggests that CIETAC is a private arbitral body rather than a “foreign or
international tribunal” under § 1782. To be sure, this factor is not determinative,
as agreements between countries to arbitrate disputes between their citizens may
involve selection of the arbitrators by the parties, and such a tribunal may be a
“foreign or international tribunal” notwithstanding this fact. Nonetheless, in the
circumstances of this case, the ability of parties to select their arbitrators is an
additional indicator of the private status of CIETAC arbitration.
Considering the above, we are persuaded that CIETAC panels function in a
manner nearly identical to that of private arbitration panels in the United States.
As such, we conclude that CIETAC arbitration is best categorized as a private
commercial arbitration for which § 1782 assistance is unavailable.
* * *
As the Supreme Court has recognized, the current iteration of 28 U.S.C.
§ 1782(a) embodies the expanding aims of its enacting Congress. Intel, 542 U.S.
at 257–58. Those aims included that the broad panoply of unilateral, multilateral,
international, and novel administrative bodies created by governments in the
wake of the Second World War should be provided with assistance in U.S. courts
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commensurate with the assistance previously afforded to traditional foreign
courts. See id. As we recognized in NBC, however, the statute does not sweep
so broadly as to include private commercial arbitrations. Because NBC remains
good law following the Supreme Court’s Intel decision, and because the CIETAC
arbitration at issue in this case is a private commercial arbitration, Guo may not
rely on § 1782 to request discovery.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s denial of the
petition.
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