Domestic Proceedings in Arbitration
Interim Measures of Protection
Much of the debate before the courts in the United States pertaining to discovery and assistance under 28 U.S.C. § 1782 has been about whether “a foreign or international tribunal” under § 1782 includes a private commercial arbitral tribunal. For the purposes of this post, I assume that that an private international commercial arbitral tribunal is covered by § 1782. I argue that, on a good-faith contextual application of the Intel tests and in the context of an private international commercial arbitral tribunal, an order under § 1782 may be granted by a U.S. District Court only at the behest of the arbitral tribunal, or only upon the request of a party after it has been granted permission by the arbitral tribunal.
I also suggest that a party to the arbitration agreement. faced with an order under 28 U.S.C. § 1782 may consider moving to compel arbitration on the issue of discovery itself.
Introduction and background
On October 27, 2021 the U.S. Supreme Court stayed an order of the District Court for the Eastern District of Michigan directing “ZF U.S. to comply with the subpoenas and produce the discovery materials” pursuant to an order under 28 U.S.C. § 1782. The District Court had directed the discovery from ZF U.S. at the behest of Luxshare, a Hong Kong limited liability company seeking discovery arising out of a dispute with respect to the sale by ZF U.S. of its Global Body Control Systems business unit to Luxshare. Interestingly, as of the date of filing of the application for discovery, Luxshare was yet to commence the arbitration proceedings. It is safe to assume that on the date that discovery was sought, arbitration proceedings were within the reasonable contemplation of the parties.
The order comes on the heels of the Supreme Court dismissal of Servotronics Inc. v. Rolls-Royce PLC without deciding the issue raised therein whether § 1782 can be used to obtain discovery in connection with foreign private arbitrations. The stay order by the Supreme Court raises hopes that the long-pending issue, which has resulted in an entrenched circuit split, will finally be decided.
Servotronics had evinced interest from the industry and academia and saw a total of 13 amicus briefs (friends of the court) being filed. Six amici filed briefs supporting the Respondent, four amici submitted briefs supporting the Petitioner, and two filed briefs supporting neither party. This split, in addition to the circuit split, shows the contentious nature of the issue involved.
Asking a different question: On a good faith contextual application of the Intel tests and in the context of a private international commercial arbitral tribunal, when can a U.S. Court grant an order § 1782(a)?
The Supreme Court in Servotronics was asked to consider “[w]hether the discretion granted to district courts in 28 U.S.C. § 1782(a) to render assistance in gathering evidence for use in ‘a foreign or international tribunal’ encompasses private commercial arbitral tribunals.” ZF U.S. now asks the Supreme Court to consider the same question, in addition to raising additional grounds.
Before 2004, it was thought that international arbitral tribunals did not fall within the scope of 28 U.S.C. § 1782. However, after the Supreme Court’s decision in Intel v. Advanced Micro Devices, courts have differed on the question of whether private international commercial arbitral tribunals are covered within the definition of “foreign or international tribunal” under 28 U.S.C. § 1782. Dicta in Intel seems to suggest that private international commercial arbitral tribunals would be covered under § 1782.
While this issue continues to engage Courts and legal scholars alike, for the purposes of this post, I assume that an international private arbitral tribunal is covered under § 1782. The issue has not yet been tackled by the U.S. Supreme Court.
Some parties and scholars argued in their amici briefs before the Supreme Court in Servotronics that courts are likely to “exercise considerable restraint granting access to requested information only in limited circumstances when the grant is consistent with the tribunal’s receptivity to the information.” Others argued that “U.S. courts should afford a very high degree of deference to the views of the arbitral tribunal on the discovery sought.”
I argue here that, to be true to the federal policy in favor of arbitration, which applies with special force in the field of international commerce and which requires courts to enforce them according to their terms, the Court should grant orders under § 1782 only at the behest of the arbitral tribunal, or upon the request of a party after it has been granted permission by the arbitral tribunal. This proposition results not from deviating from the path laid down in Intel, but from a good faith and contextual application of the Intel tests to an international commercial arbitration.
The Intel tests and their context
The following issues were considered by the Supreme Court in Intel, before it laid down the tests for grant an application under 28 U.S.C. § 1782:
- Interested person: The Court held that an ‘interested person’ who could invoke 28 U.S.C. § 1782 is not restricted to a litigant before an international tribunal only. The complainant who initiated proceedings before the European Commission and invoked § 1782 before the district court in the United States was held to be an “interested person” who could maintain the application under § 1782 before the U.S. Court. The Supreme Court held that though the applicant lacked a formal “party” or “litigant” status in Commission proceedings, the complainant had significant participation and procedural rights before the European Commission.
- Proceedings in Reasonable Contemplation: The Court held that the “proceeding” for which discovery was sought must be in reasonable contemplation of the parties, but did not need to be pending or imminent.
- No foreign-discoverability requirement: 1782(a) does not impose a foreign-discoverability requirement, i.e., that what is sought be discoverable through 28 U.S.C. § 1782 does not necessarily have to be also discoverable in the foreign proceeding.
The Court additionally held that the European Commission was a “foreign or international tribunal” under § 1782. An examination of this issue is not necessary for the purposes of this post since it is assumed that an arbitral tribunal is covered within the scope of § 1782.
After interpreting these threshold requirements, the Court laid down the following tests to be determined by the U.S. District Court before an order/action under 28 U.S.C. § 1782 is granted:
- Whether the person from whom discovery is sought is a participant in the foreign proceeding? The Court reasoned that a party is such a participant if “[a] foreign tribunal has jurisdiction over those appearing before it, and can itself order them to produce evidence.”
- “A court presented with a § 1782(a) request 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.”
- Additionally, the Court held that “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.
- The Court also held that “unduly intrusive or burdensome requests may be rejected or trimmed.”
Applicability of Intel to Private International Commercial Arbitral Tribunals – Threshold Issues
In Intel, the Supreme Court was faced with interpreting § 1782 in the context of a complaint pending before the European Commission. The dynamics of its application completely change when the nature of the tribunal involved is a private international commercial arbitral tribunal. First, this post examines the threshold considerations for making a request to a U.S. court under § 1782.
An interested person in a private international commercial arbitration can only be a party to the arbitration proceeding. The Supreme Court’s holding in Intel that the term “interested person” under § 1782 was wide and not restricted to a litigant, was in the context of an investigation pending before the European Commission. The European Commission is part of a civil law system which differs in significant ways from the U.S. judicial system. While the U.S. system of justice relies on an adversarial process, civil law systems rely on an “inquisitional” process in which the judicial officer plays a more active role in gathering evidence.
In Intel, the Supreme Court considered whether a complainant who triggers a European Commission investigation would fall within the definition of an “interested person.” The Court specifically considered whether “in addition to prompting an investigation, the complainant has the right to submit information for the DG-Competition’s consideration, and may proceed to court if the Commission discontinues the investigation or dismisses the complaint.” In that case, the Court held that the complainant has sufficient participation rights and has a reasonable interest in obtaining judicial assistance.
The Court’s decision to permit third parties to take recourse to § 1782 was specific to a proceeding before the European Commission. Interested third parties who can “show a sufficient interest in the outcome of the proceedings” may be admitted and participate in oral hearings in proceedings before the European Commission. Considering the nature of the proceedings before the European Commission, the Court refused to place any limitation on the reach of § 1782. However, by contrast, a private international commercial arbitration dispute is private and “fundamentally consensual in nature.” A private international commercial arbitral tribunal decides issues which arise between parties to an arbitration agreement and can only bind those parties, unless under exceptional circumstances non-signatories may also participate in the arbitration. Even in that case, the non-signatory would be a party to the arbitral proceeding. The nature of participation rights before a private international commercial arbitral tribunal is very different and much more limited than the participation rights of an “interested third party” before the European Commission. Therefore, the same standards which apply to the definition of an “interested person” in the context of the European Commission would not apply to a private commercial arbitral tribunal.
The Supreme Court in Intel rejected a generalized limitation to the meaning of “interested person” under § 1782 and held that it may be tailored on a case-to-case and a contextual basis. The Supreme Court in Intel nowhere suggests that the term “interested person” is to be widely interpreted in the context of a private international commercial arbitral tribunal. Therefore, in the context of a private international commercial arbitral tribunal, an “interested person” may, upon the good faith contextual application of the Intel requirement of an interested person, be interpreted to mean a party to the arbitration proceedings only. Thus, a party before the private international commercial arbitral tribunal may be an “interested person” under § 1782, which is entitled to invoke the jurisdiction of a U.S. District Court.
Proceedings in reasonable contemplation do not refer to private international commercial arbitral tribunals, but to investigations before authorities: The Supreme Court in Intel specifically held that the proceeding for which discovery is sought must be within reasonable contemplation of the parties. However, the Court clarifies that it bases its interpretation on the legislative history (referring to the 1964 revision of § 1782) of the provision which “corroborates Congress’ recognition that judicial assistance would be available for both foreign proceedings and investigations.”
Unlike the European Commission investigation that was at issue before the Intel Court, no investigation is contemplated in a private international commercial arbitration dispute. Even with respect to a “foreign proceeding,” a “proceeding” is defined as “[t]he regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment” and “[a]ny procedural means for seeking redress from a tribunal or agency.” In the absence of the “commencement” of a private international commercial arbitration, the prerequisite for the availability of § 1782, i.e., a ‘foreign proceeding’ would not be satisfied.
It is reiterated that the finding by the Court that “Congress [did not mean] to rein in” the scope of § 1782 by the 1996 amendment is not a comment on the interpretation of § 1782 generally, but to the scope of the clarification provided by the 1996 amendment. Thus, in the absence of an investigation or a foreign proceeding in the context of a private international commercial arbitration dispute, § 1782 may not be invoked till the arbitration proceedings are commenced.
The court may not order discovery in a private international commercial arbitration without the arbitral tribunal making a request or upon the request of a party after it has been granted the permission of the arbitral tribunal, despite the non-applicability of the “foreign-discoverability rule” limitation on 28 U.S.C. § 1782: While considering the issue whether the power of the court to order discovery under 28 U.S.C. § 1782 is conditioned upon a similar “foreign-discoverability requirement” by the other state, the Supreme Court in Intel found no such blanket restriction to exist. However, the Court specifically held that “comity and parity concerns may be legitimate touchstones for a district court’s exercise of discretion in particular cases.” Therefore, the Court did not construe § 1782(a)’s text to include a generally applicable foreign-discoverability rule, rather left the determination on a case-to-case basis, depending on “comity and parity concerns.”
To examine the “comity and parity concerns” with respect to private international commercial arbitral tribunals, I take the case of ZF U.S. v. Luxshare which is currently pending consideration before the Supreme Court. The arbitration clause in Luxshare provides that the agreement “shall be governed by German law,” and further provides that all disputes shall be “exclusively and finally settled” “in accordance with the Arbitration Rules of the German Institution of Arbitration e.V. (DIS),” “without recourse to the ordinary courts of law.” It also provides that “The place of the arbitration shall be Munich, Germany.”
The issue of the “foreign-discoverability rule” comes into sharp focus in Luxshare since “[c]ivil law jurisdictions [such as Germany] know no such thing as discovery,” whereas “[t]he United States Federal Rules of Civil Procedure provide for broad pre-trial discovery, one of the most important instruments of discovery being document production.”
Moreover, in the context of a private international commercial arbitral tribunal, the procedure for the conduct of arbitration is either agreed to between the parties or left to the discretion of the arbitral tribunal. Thus, “[w]hen parties choose arbitration and certain rules of procedure to govern resolution of their dispute, it is reasonable to conclude that they are not silently choosing those rules plus Section 1782.”
If the parties as per the terms of their agreement have not agreed to foreign discovery by the U.S. Courts, the U.S. Courts should respect and abide by an agreement between the parties. There is a strong “federal policy in favor of arbitral dispute resolution, a policy that applies with special force in the field of international commerce” that “requires courts to enforce them according to their terms.”
Moreover, international commercial arbitration is often described as stateless, or detached from the law of the country of its origin. Therefore, a U.S. Court that conditions its order under § 1782 on reciprocal information exchange may be encroaching on party autonomy and the right of the parties and/or the private international commercial arbitral tribunal to determine its procedure.
The Supreme Court in Intel held that “the foreign tribunal can place conditions on its acceptance of the information to maintain whatever measure of parity it concludes is appropriate.” As a practical matter, however, once a discovery or deposition under § 1782 is obtained and a party bases its pleadings or case on such information, the arbitral tribunal may struggle to unscramble the scrambled egg or distinguish the evidence obtained through discovery from other evidence. The Tribunal may also be constrained by its power under the arbitration agreement or the contract to require parity in discovery between the parties. Similarly, if the opposing party is not located within the United States, even the U.S. Court, much less the arbitral tribunal, may find it difficult to order discovery at the opposing party’s behest. Therefore, in the context of a private international commercial arbitral tribunal, it would be difficult to maintain parity, given the constraints on the power of the arbitral tribunal and of the U.S. District Court to order discovery only against a person who “resides or is found” within its district.
The power of the court to provide judicial assistance could also be abused if the party seeking such assistance did so in contravention of the agreed procedure or the directions of the arbitral tribunal. In a Singapore case, a party applied for the issuance of a subpoena to compel the person named to disclose documents or answer questions about the documents, when the arbitral tribunal had earlier already rejected such a request. The application was rejected and the applicant was considered as having abused process.
In addition, one policy consideration is to limit judicial intervention in arbitration and arbitration proceedings. This policy aligns with the strong federal policy in favor of arbitration. Article 5 of the United Nations Commission on International Trade Law, Model Law on International Commercial Arbitration (“UNCITRAL Model Law”) prescribes that “no court shall intervene except where so provided in this Law.” While the UNCITRAL Model Law is not binding, it constitutes a guide for national legislation, and one which has been adopted by countries around the world with varying degrees of alteration. Courts of countries which have adopted the Model Law have consistently upheld article 5 (or enactments thereof) as a mandatory provision of the Model Law. Thus, article 5 of the UNCITRAL Model Law may serve as a guide to the interpretation of provisions relating to the scope of a U.S. Court’s intervention to arbitration and arbitration proceedings.
The U.S. Court may thus not order discovery in a private international commercial arbitration dispute unless it is at the behest of the arbitral tribunal, or upon the request of a party after it has been granted the permission of the arbitral tribunal.
Applicability of Intel Tests to Private International commercial Arbitral Tribunals
The stage is now set to consider the specific tests laid down in Intel, which a court in the U.S. is required to examine before granting a request under § 1782.
The first Intel factor – Is the person from whom discovery is sought a participant in the foreign proceeding?: The Supreme Court held in Intel that the district court is required to consider whether the person from whom discovery is sought is a participant in the foreign proceeding since non-participants in the foreign proceeding may be outside the foreign tribunal’s jurisdictional reach, which may require the availability of § 1782 to obtain such evidence.
Prior to Intel, the 2nd Circuit did not require a quasi-exhaustion standard to be met, i.e., an application before the arbitral tribunal seeking discovery or evidence, before a §1782 request was made to a U.S. Court. However, more recently in the application of Intel, courts have focused on whether the requesting party sought the discovery in the foreign tribunal before filing its § 1782 petition in its analysis of whether the request seeks to circumvent the proof-gathering conventions of the forum state. Courts of other jurisdictions have also imposed a quasi-exhaustion requirement and have mandated that where a party wished to seek a subpoena in aid of an arbitration, that party should obtain the express written approval of the arbitrator.
Professor Hans Smit, one of the principal forces behind the 1964 revisions to § 1782, wrote that the evidence may be produced before the Court itself or before a person appointed for this purpose. Referring to when a person is appointed, he wrote that “[w]hile the court is free to select any person it deems appropriate, it ordinarily should appoint the person designated by the foreign or international tribunal or by foreign law.” In the context of a private international commercial arbitral tribunal, the person so designated can only be one appointed by the arbitral tribunal itself, which requires the party seeking discovery or evidence to apply to the tribunal with such a request first. This requirement itself underscores that ordinarily, the court would mandate the following of the quasi-exhaustion requirement before the U.S. Court may act at the request of a party under §1782.
The quasi-exhaustion rule can only be invoked in the case of a party (from whom discovery is sought) who is before the arbitral tribunal. Therefore, recourse to § 1782 must only be made available between parties to the arbitral proceedings, especially when the participant from whom the discovery is sought would be before the foreign international commercial arbitral tribunal. Ergo, the § 1782 request may be granted only if it is at the behest of the arbitral tribunal, or upon the request of a party after it has been granted the permission of the arbitral tribunal.
Invoking § 1782 to Seek Assistance in Taking Evidence: With respect to taking evidence, the UNCITRAL Model Law prescribes that “[t]he arbitral tribunal or a party with the approval of the arbitral tribunal may request from a competent court of this State assistance in taking evidence” and that “[t]he court may execute the request within its competence and according to its rules on taking evidence.” When article 27 was drafted, it was not contemplated that court assistance could be extended to international court assistance (i.e. assistance from a court “in a country other than the one where the arbitration took place.”)  There have also been courts which have found that “[t]here is nothing in the Model Law which suggests that the Court should assist with the process of disclosure.”
However, courts have begun to adopt a more liberal approach with respect to requests from foreign arbitral tribunals. The Supreme Court of Canada held that “the granting of an order for examination, being discretionary, will depend on the facts and particular circumstances of the individual case.” It has also been held and concluded that article 27 of the UNCITRAL Model Law was broad enough to contemplate judicial assistance sought in the context of pre-trial discovery or disclosure.
Considering the nature of arbitration and consistent with Article 27 of the UNCITRAL Model Law, the correct forum to make a discovery request or assistance in obtaining evidence would be the private international commercial arbitral tribunal. Any order made by the arbitral tribunal seeking assistance in obtaining evidence may be enforced under 28 U.S.C. § 1782.
The second Intel factor(s) – The order of the private arbitral tribunal with respect to discovery must be held to be dispositive in a §1782 request:
The second intel factor requires examination of 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.
As noted above, a private international commercial arbitral tribunal is a creature of contract and is fundamentally consensual in nature. Party autonomy is at the heart of international arbitration. The objective of § 1782, Professor Smit writes, is that the “[then] [n]ew Section 1782 is based on the hope that in such cases the courts, inspired by a desire to accommodate their foreign brethren, will gallantly endeavor to perform the unfamiliar task and thus make their contribution to the removal of obstacles to true international co-operation.” The international cooperation referred to by Professor Smit cannot conceivably encompass a private international commercial arbitral tribunal which, as a creation of private parties, does not have any international law obligations.
An arbitral tribunal is a private body and not a public body created through a treaty amongst nations. As to the character of the proceedings, the arbitral tribunal does not carry out public functions but rather is a private dispute resolution body whose decision can only bind parties.
There are also no formal ways to gauge the receptivity of the arbitral tribunal to the discovery request as the Supreme Court in Intel gave district courts no guidelines for evaluating foreign tribunals’ receptivity to discovery acquired in the United States. The only way to gain knowledge of the arbitral tribunal’s receptivity is through its formal orders. The submissions of parties made to the U.S. court as to the intent of the arbitral tribunal concerning § 1782 requests in the absence of a formal order from the Arbitral Tribunal can at best be characterized as speculative.
Moreover, there are serious policy considerations in giving complete deference to the arbitral tribunal with respect to taking evidence and permitting discovery. “Giving parties to international arbitrations access to judicial assistance pursuant to §1782 will undermine many of the policies underlying arbitration, including the freedom to contract, reduced cost, efficiency and the arbitrators’ ability to control discovery.” “Section 1782 discovery in the context of private arbitration is contrary to key favorable characteristics of arbitration, including its efficiency, fairness, and finality.”
Therefore, with respect to private international commercial arbitral tribunals, courts must take the receptivity of the tribunal to be dispositive, and in the absence of any indication regarding receptivity, decide against granting any request under § 1782.
The third Intel factor – A party’s § 1782 request almost always is a way to circumvent the discovery rules of the state whose law is applicable, or the procedure followed by the Arbitral Tribunal: Usage of § 1782 to execute the request and formal orders of the arbitral tribunal will ensure that the discovery rules of the state are not being circumvented as the examination regarding relevance is most likely to have been carried out.
The fourth and final Intel factor – trimming of discovery requests, is inapplicable: This test requires and relates to the burden imposed by the discovery request, which is not relevant in view of the previous discussion that a party must first approach the private international commercial arbitral tribunal with its request for discovery. If such discovery is granted and a U.S. Court is in a position to execute such request, the Court must execute such a request in aid of the arbitration proceeding under § 1782.
In the context of an application under 28 U.S.C. § 1782 pertaining to a pending or reasonably contemplated private international commercial arbitration proceeding, the following outcomes emerge after applying the Intel threshold requirements and tests:
- An interested party may only be a party to the arbitration proceeding;
- A party may not invoke discovery actions before the arbitral proceedings are initiated;
- The court may not order a request under § 1782 without that party first attempting to obtain discovery before the tribunal;
- The court may order discovery action only at the behest of the arbitral tribunal, or upon the request of a party after it has been granted the permission of the arbitral tribunal; and
- The order of the tribunal with respect to assistance in discovery or taking evidence must be held to be dispositive in a 1782 request.
These prescriptions will increase certainty in deciding 1782 applications, respect party autonomy, grant the necessary deference to arbitrators to control proceedings before them, ensure parity with the procedures and the law in place in domestic arbitrations, reduce costs, and increase efficiency and fairness in the arbitration proceedings while ensuring that the objectives of § 1782 are met.
From the foregoing, a party faced with an order of a court under 28 U.S.C. § 1782 may consider moving to compel arbitration before that court on the issue of discovery itself, if it is a party to the arbitration agreement. While 28 U.S.C. § 1782 uses the words “district court” as the authority that has the jurisdiction to consider an application under § 1782, it would be interesting to see the court’s consideration of such a motion in view of the “strong federal policy favoring arbitration.”
 Ashish Virmani is an Advocate on Record before the Supreme Court of India. He regularly advises clients, appears in arbitration proceedings, and writes about arbitration. At present, he is pursuing his LL.M. at Columbia Law School.
 ZF Auto. U.S., Inc. v. Luxshare, Ltd, 21-401, 2021 WL 4978641 (U.S. Oct. 27, 2021). The case is currently pending consideration on the issue of grant of certiorari before the U.S. Supreme Court and was distributed for conference on December 3, 2021.
 Luxshare, Ltd. v. ZF Auto. US, Inc., 20-mc-51245, 2021 WL 3629899 at *1 (E.D. Mich. Aug. 17, 2021).
 Luxshare, Ltd. v. ZF Auto. US, Inc., 20-mc-51245, 2021 WL 2154700 (E.D. Mich. May. 27, 2021).
 Petition for a Writ of Certiorari Before Judgment on Behalf of the Counsel for the Petitioners at 6, Luxshare, 2021 WL 4978641.
 Id. at 17.
 Servotronics, Inc. v. Rolls-Royce PLC, 975 F.3d 689 (7th Cir. 2020), cert. granted, 141 S. Ct. 1684 (2021), cert. dismissed, No. (R46-44 / OT 2020), 2021 WL 4619271 (U.S. Sept. 29, 2021).
 See id.
 See generally Petition for Certiorari, Luxshare, 2021 WL 4978641.
 Anna Conley, A New World of Discovery: The Ramifications of Two Recent Federal Courts’ Decisions Granting Judicial Assistance to Arbitral Tribunals Pursuant to 28 U.S.C. S 1782, 17 Am. Rev. Int’l. Arb. 45 (2006).
 542 U.S. 241 (2004)
 Linda H. Martin, Kate Apostolova, & Eric Brandon, The Circuit Split on the Scope of Section 1782 Discovery in the United States: Will it Ever Get Resolved?, Kluwer Arb. Blog. (Sept. 14, 2021), http://arbitrationblog.kluwerarbitration.com/2021/09/14/the-circuit-split-on-the-scope-of-section-1782-discovery-in-the-united-states-will-it-ever-get-resolved/.
 Intel, 542 U.S. at 258 (“[c]ongress understood that change to ‘provid[e] the possibility of U. S. judicial assistance in connection with [administrative and quasi-judicial proceedings abroad].’ . . . see Smit, International Litigation 1026-1027, and n. 71, 73 (“[t]he term ‘tribunal’ . . . includes investigating magistrates, administrative and arbitral tribunals.”).
 See Brief Amicus Curiae of Professor George A. Bermann in Support of the Petitioner at 25, 31, Servotronics, Inc., 141 S. Ct. 1684 (2021).
 Brief for the International Court of Arbitration of the International Chamber of Commerce in Support of Neither Party at 10, 11, Servotronics, Inc., 141 S. Ct. 1684 (2021).
 See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 616 (1985); Volt Info. Sciences, Inc. v. Stanford Univ., 489 U.S. 468, 478 (1989).
 Intel, 542 U.S. at 255.
 Id. at 255, 257.
 Id. at 259.
 Id. at 259-263.
 Id. at 255.
 Id. at 264.
 Intel, 542 U.S. at 264.
 Id. at 265.
 In re Microsoft Corp., 2006 WL 825250, at *2 (N.D. Cal. Mar. 29, 2006).
 Intel, 542 U.S. at 256.
 Michael Albers & Jérémie Jourdan, The Role of Hearing Officers in EU Competition Proceedings: A Historical and Practical Perspective, 2(3) J. of Eur. Competition L. & Prac. 185–200 (2011).
 Gary B. Born, International Arbitration: Law and Practice 1517 (2021).
 Id. at 1517, 1531.
 Supra note 30.
 Intel, 542 U.S. at 256.
 Intel, 542 U.S. at 243.
 Proceeding, Black’s Law Dictionary (11th ed. 2019).
 Intel, 542 U.S. at 259.
 Id. at 260.
 Id. at 261.
 Luxshare, 2021 WL 4978641.
 Petition for Certiorari, Luxshare, 2021 WL 4978641 at *6.
 Gabrielle Kaufmann-Kohler, Philippe Bartsch, Discovery in international arbitration: How much is too much? 1 Ger. Arb. J., 13, 16 (2004) at 16.
 Id. at 15.
 See Born, supra note 31 at 2295 (“[o]ne of the most fundamental characteristics of international commercial arbitration is the parties’ freedom to agree upon the arbitral procedure.”).
 See Brief for Dr. Xu Guojian et al. as Amici Curiae in Support of the Respondents at 16, Servotronics, Inc., 141 S. Ct. 1684 (2021).
 See 9 U.S.C. § 3 (with respect to any issue “referable to arbitration,” the trial in a suit shall be stayed until “such arbitration has been had in accordance with the terms of the agreement” (emphasis supplied)); see also 9 U.S.C. § 4 (in case of a failure, neglect or refusal of the party to arbitrate, the court shall pass “an order directing that such arbitration proceed in the manner provided for in such agreement” and the Court “shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.” (Emphasis supplied)).
 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 616 (1985).
 Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 63 (2010).
 Thomas Schultz, Transnational Legality: Stateless Law and International Arbitration 82-90 (2014) (evaluating the “relative legality” of an autonomous arbitral order); Jan Paulsson, Arbitration Unbound: Award Detached from the Law of Its Country of Origin, 30 Int’l. & Comp. L. Q. 358, 358-59 (1981) (discussing delocalized arbitral awards “floating” or “drifting” across jurisdictions); See also Dell Comput. Corp. v. Union des consommateurs,  2 S.C.R. 801, 837 (Can.) (“The arbitrator has no allegiance or connection to any single country.”).
 Intel, 542 U.S. at 262.
 ALC v. ALF  SGHC 231 (Sing.).
 U.N. Comm’n on Int’l Trade L., UNCITRAL Model Law on International Commercial Arbitration 1985: with amendments as adopted in 2006, art. 5, https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/19-09955_e_ebook.pdf.
 Dan C. Hulea, Contracting to Expand the Scope of Review of Foreign Arbitral Awards: An American Perspective, 29 Brook. J. Int’l. L. 313, 342 (2003).
 See, e.g., Noble China Inc. v. Lei (1998), 42 O.R. 3d 69 (Can. Ont.); Vibroflotation A.G. v. Express Builders Co. Ltd.,  3 H.K.C. 263 (C.F.I.).
 Intel, 542 U.S. at 264.
 See, e.g., In re Digitechnic, No. C07-414-JCC, 2007 U.S. Dist. LEXIS 33708, at *9-10 (W.D. Wash. May 8, 2007).
 Vibroflotation A.G. v. Express Builders Co. Ltd.,  3 H.K.C. 263 (C.F.I.), http://www.hklii.hk/eng/hk/cases/hkcfi/1994/205.html (the court found evidence of the approval of the arbitral tribunal in the terms of a letter from the arbitral tribunal and in an order of the arbitral tribunal fixing a date for the production of such documents as might be ordered for production by the court).
 Hans Smit, International Litigation Under the United States Code, 63 Columbia. L. Rev. 1015 at 1027 (1965).
 U.N. Comm’n on Int’l Trade L., UNCITRAL Model Law on International Commercial Arbitration 1985: with amendments as adopted in 2006, art. 27, available at https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/19-09955_e_ebook.pdf.
 U.N. Comm’n on Int’l Trade L., Rep. of the Working Grp. on Int‘l Cont. Prac. on the Work of Its Third Session (New York, 16-26 February 1982), para. 61 (b), A/CN.9/216 (1982), available on the UNCITRAL website at http://www.uncitral.org/uncitral/en/commission/sessions/15th.html. According to A/CN.9/245, para. 43, the Report of the Working Group on International Contract Practices on the work of its sixth session, available on the UNCITRAL website at http://www.uncitral.org/uncitral/en/commission/sessions/17th.html (the issue of international court assistance in taking evidence caused some difficulty as “an acceptable system of international court assistance could not be established unilaterally through a model law since the principle of reciprocity and bilaterally or multilaterally accepted procedural rules were essential conditions for the functioning of such a system.”).
 BNP Paribas v. Deloitte and Touche LLP  EWHC (Comm) 2874, 1 Lloyd’s Rep 233 (Eng.).
 Zingre v. The Queen,  2 S.C.R. 392 (Can.).
 Jardine Lloyd Thompson Canada Inc. v. SJO Catlin (2006), 380 A.R. 121 (Can. Alta. Ct. App.).
 Born, supra note 31.
 See generally Born, supra note 31.
 Smit, supra note 60, at 1028.
 Ingeborg Schwenzer & Florence Jaeger, The CISG in International Arbitration, in The Powers and Duties of an Arbitrator: Liber Amicorum Pierre A. Karrer 313 (Patricia Shaughnessy and Sherlin Tung eds., 2017) (“Arbitral tribunals, however, as a private dispute resolution instance chosen by the parties, are not bound by these international law obligations”).
 See Marat A. Massen, Discovery for Foreign Proceedings After Intel v. Advanced Micro Devices: A Critical Analysis of 28 U.S.C. S 1782 Jurisprudence, 83 S. Cal. L. Rev. 875 (2010).
 Supra note 11, at 46.
 Supra note 47, at 11.