Authors: Ryan Mellske and Enning Chang[1]
| Jurisdictions: International United States |
Topics: Discovery in Aid of Arbitration Procedure Arbitral Process Domestic Arbitration Law |
“We must go back to the time Congress enacted the statute and discern its meaning from that point in the past.”[2]
In 1964, the United States Congress revised 28 U.S.C. § 1782 to enable federal courts to compel the production of evidence located in their district for use in a “foreign or international tribunal.” In the decades hence, courts have become divided on whether the statute covers international commercial arbitration. For its part, the Fifth Circuit in Biedermann declined the plaintiff’s application, declaring: “[T]he term ‘tribunal’ lacks precision” and, furthermore, “[t]here is no contemporaneous evidence that Congress contemplated extending § 1782 to the then-novel arena of international commercial arbitration.”[3] Unfortunately, the courts have all too often limited their ordinary-meaning inquiry to conflicting dictionary definitions and usage in other legal texts – and overlooked popular meaning. Concluding (erroneously) that the text is ambiguous, some courts have proceeded to apply other canons of statutory interpretation and various judge-made criteria, resulting in a circuit split. Now, the question of whether “foreign or international tribunal” includes international commercial arbitration is before the United States Supreme Court, with oral argument scheduled for March 23, 2022, in the case ZF Automotive US, Inc., et al v. Luxshare, Ltd.
The problem before the Court is easily resolved at the first step in the analysis, ordinary meaning, by examining popular meaning. As set forth in this essay, abundant historical evidence confirms that the meaning of “tribunal,” as it was used in common parlance throughout American history, most certainly included commercial arbitration, both domestic and international – which was not “then-novel” – when Congress amended § 1782. These sources indicate that by 1964, and long before, the U.S. Government, including several Presidents and the U.S. Departments of State and Commerce, as well as congresspeople, courts, lawyer associations, business and trade associations, arbitral institutions through their networks at home and abroad, law students, the general public who read newspapers and watched television, and many tens of thousands of American businesspeople all commonly used the term “tribunal” to reference both domestic and international commercial arbitration.
The rule on popular meaning
It is universal to consider the plain or ordinary meaning of words in a statute as the first step in statutory interpretation. Most advocates and courts therefore turn to the dictionary, and perhaps to usage in other legal texts. But, “[i]n interesting cases, meaning is not ‘plain’; it must be imputed; and the choice among meanings must have a footing more solid that a dictionary.”[4]
In the United States, courts generally assume “that Congress uses common words in their popular meaning, as used in the common speech of men.”[5] “The meaning of terms on the statute books ought to be determined, on the basis of which meaning is . . . most in accord with context and ordinary usage, and thus most likely to have been understood by the whole Congress which voted on the words of the statute (not to mention the citizens subject to it).”[6] Put another way, establishing ordinary meaning requires “seeking ‘evidence about the way a reasonable person conversant with relevant social and linguistic practices would have used the words.’”[7] Also, “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.”[8] Courts should consider “a word’s historical associations acquired from recurrent patterns of past usage.”[9] Lastly, courts should “avoid[], if it may be, any construction which implies that the legislature was ignorant of the meaning of the language it employed.”[10]
In Biedermann, the Fifth Circuit rightly confirmed the rule: “Courts properly assume, absent sufficient indication to the contrary, that Congress intends the words in its enactments to carry their ordinary, contemporary, common meaning. If this language is unambiguous, the inquiry is ended.”[11] Therefore, the Sixth Circuit invites us to look for “evidence of the term’s meaning at the time” of the revision of § 1782 in 1964.[12]
Popular meaning in early U.S. history: an ancient concept adopted by trade associations
“Although the history of arbitration in the United States is commonly traced back to enactment of the Federal Arbitration Act (FAA) in 1925, the practice of arbitration in the United States precedes that date.”[13] Indeed, the very concept of an arbitral tribunal, as it was known in the United States, goes back to ancient times. The English word “tribunal” traces its origin to Latin, meaning a raised platform upon which adjudicators sat and heard disputes.[14]
In a 1928 article in the Minnesota Law Review, Historical Development of Commercial Arbitration in the United States, it was noted: “Demosthenes in his pleading against Meidias quoted in full the regulating Athenian law on this subject. ‘If the parties have a dispute with each other respecting their private obligations, and desire to choose an arbiter, be it lawful to them to select whomsoever they will. But when they have mutually selected an arbiter, let them stand fast by his decision, and by no means carry on appeal from him to another tribunal; but let the arbiter’s sentence be supreme.’”[15]
In The Historical Background of Commercial Arbitration, published in the University of Pennsylvania Law Review in 1934, Professor Wolaver noted that “Aristotle urged the benefits of conciliation. In Heraldus’ Animadversiones there is described a court of reconcilement that existed among the Greeks. It was [also] common among the Romans ‘to put an end to litigation’ by means of arbitration. … [T]his amicable private tribunal,” he wrote, “is of an earlier date than the public courts.”[16]
In 1937, C. Frank Crawford, in An American Viewpoint, wrote that it was Greek arbitration law that “decisively influenced” arbitration in Egypt in Ptolemy’s time. In one such matter, Crawford recounted, the arbitrators were asked to award damages to a claimant whose land had been flooded by water which an adjoining landowner (the defendant) had allowed to overflow on to the former’s land, referring to such a procedure as “an arbitration tribunal.”[17]
The Decennial Report of the American Arbitration Association, published in 1936, describes the history of arbitration in America as antedating the Revolutionary War, via American trade organizations:
Arbitration has been in use in the United States since early Colonial times. Prior to the Revolution, arbitration tribunals were set up from time to time to settle particular business disputes under the established common law of England which was then applicable in the American Colonies. In 1768, there was established, in New York City, a Chamber of Commerce (which is now the Chamber of Commerce of the State of New York) which offered facilities for the settlement of disputes between merchants. The arbitration facilities of the Chamber have been continuously in use since that date. The Chamber of Commerce of New Haven established an arbitration committee as early as 1794 and the New York Stock Exchange established facilities in 1817. A number of other commercial organizations established arbitration facilities during the nineteenth century, among them the New York Produce Exchange (1862), the New Orleans Cotton Exchange (1877), and the Silk Association of America (1898).[18]
An article published in The Arbitration Journal in 1937 entitled The Oldest American Tribunal describes how the Chamber of Commerce of New York since 1768 was dedicated even to international commercial arbitrations, for one of its purposes was “adjusting disputes relative to trade and navigation.”[19]
Professor Soia Mentschikoff’s history of commercial arbitration, published in the Columbia Law Review in 1961, also notes that the New York Chamber of Commerce in 1768, “founded with one of its purposes being the arbitration of disputes,” was the “sole civil tribunal to operate during the British occupation…”[20]
The first American President, George Washington, provided for just such an arbitral tribunal in his last will and testament, done at Mount Vernon, Virginia on 9 July 1799:
My Will and direction expressly is, that all disputes (if unhappily any should arise) shall be decided by three impartial and intelligent men, known for their probity and good understanding; two to be chosen by the disputants–each having the choice of one–and the third by those two. Which three men thus chosen, shall, unfettered by Law, or legal constructions, declare their sense of the Testators intention; and such decision is, to all intents and purposes to be as binding on the Parties as if it had been given in the Supreme Court of the United States.[21]
By way of context, in his new book, The Three Ages of International Commercial Arbitration, Mikaël Schinazi chronicles the history of modern international commercial arbitration from 1780 to the present.[22] As that book and other sources confirm, that history prior to 1964 is by no means limited to Europe and the United Kingdom, but rather includes the United States in a leading role.
Additionally, Schinazi describes two parallel “threads” of international arbitration throughout this history. The first is arbitration by commercial trade associations in the commodity markets (mentioned above).[23] The second is sovereign-sponsored arbitration.[24] As described below, the ordinary meaning of “foreign or international tribunal” covered both “threads” – commercial and sovereign arbitrations, not merely the latter.[25]
As an example of the former, many disputes had arisen between cotton traders in the American Southern states and merchants in Liverpool during and after the American Civil War, and these were resolved by international commercial arbitration.[26]
Another historical account, published in the 1930s, confirms that by the early 1900s, trade associations within the U.S. managed disputes through arbitration that were “international in character.” For example, the Silk Association of America, organized in 1872, used arbitration to resolve disputes involving raw material markets in Europe and the Far East.[27]
Still another account, published in the 1950s, notes that the Dried Fruit Association of New York “maintained right from the start in 1906, an arbitration tribunal” and provided a standard arbitration clause.[28]
The trade association tribunals of that time were not much different from the international arbitration institutions we see today, insofar as those trade associations offered standard arbitration clauses and a pool of available arbitrators. By 1938 it was said that “[]most of the important Chambers of Commerce throughout the United States maintain Arbitration Tribunals with panels of arbitrators available for any trade.”[29]
International commercial arbitration through trade associations would give rise to dedicated arbitration institutions and enter the public consciousness and discourse in the first decades of the twentieth century:
Less tangibly but just as importantly, these threads were crucial in raising a general arbitral consciousness. The discourse on international arbitration was often imbued with a vision of arbitration as a force for good and progress, a means of ensuring peace and stability among nations. This arbitral consciousness progressively permeated the arbitration world and was still palpable in the early decades of the twentieth century, when various arbitral institutions were created with the stated goal of maintaining peaceful relationships between men. As Sgard has observed, “[t]he powerful utopian or messianic dimension that often imbued the public discourse on arbitration found its way as well into the International Congress of Chambers of Commerce and later into the language of the American Arbitration Association.”[30]
From its founding in 1926, through 1964 and beyond, the American Arbitration Association (“AAA”) would play a prominent role in the expansion of international commercial arbitration tribunals.
Popular meaning in the US after the First World War: the rise of arbitral institutions
Immediately after World War I, business leaders in the United States and across the Atlantic constructed a coherent framework for international commercial arbitration through dedicated arbitral institutions.[31] Thus, Schinazi confirms: “the current system of international arbitration” dates from the 1920s.[32]
In October 1919, a year after the end of World War I, business leaders from the United States, Great Britain, France, Belgium, and Italy met at an international trade conference in Atlantic City, New Jersey.[33] The participants sought to ascertain “the material and economic needs of the four principal allied nations” and “to what extent the United States could and should supply those needs, and how.”[34] Attended by 4,000 people, the conference was described by one of its members as “the most important trade meeting in history.”[35] From this conference, the International Chamber of Commerce (“ICC”) was born in 1920, followed by the launch of the ICC Court of Arbitration in 1923.[36]
When the mechanism of ICC arbitration[37] was proposed at the seminal ICC congress held in London in 1921, it was Owen Young, an American businessman and the Chairman of the Commercial Arbitration Committee of the United States Chamber of Commerce, who recommended to the ICC Congress that “some system of arbitration outside the law must be provided” to accommodate different dispute settlement cultures among countries, to ensure the success of international commercial arbitration.[38]
The ultimate success of the ICC Court of Arbitration reflects Young’s suggestion, insofar as the ICC created an “alternate, extraterritorial [private] jurisdiction” with its “supranational” structure.[39] Thereafter, U.S. parties were involved in forty-nine international commercial cases submitted to ICC arbitration from its inception until the Second World War began in 1939.[40] Thus it is said that the ICC Court of Arbitration and the eventual AAA were both “children of the same American private interest.”[41]
During this period, Herbert Hoover served as Secretary of Commerce (1921-1928) before becoming the 31st President of the United States (1929-1933). Hoover was a strong proponent of commercial arbitration, both domestic and international: “I have been for many years of the conviction that the arbitration of commercial disputes in place of avoidable litigation is an agency of the first rank in the promotion of business efficiency.”[42] In May 1921, at the suggestion of Hoover, “an advisory committee on commercial disputes in foreign trade was organized … to help the Department of Commerce to handle disputes arising out of foreign trade.”[43]
By the 1920s, American chambers of commerce abroad were handling disputes “that arise between American and foreign businessmen,” some even with an “adoption of a uniform course of procedure.”[44] However, inconsistency of arbitration practice among trade associations and increased foreign trade of U.S. businesses during the First World War required a unification in law.[45]
In debating the American Bar Association’s bill for the United States Arbitration Act (a precursor to the FAA), in 1922 Senator Thomas Walsh of Montana observed that “when two men voluntarily agree to submit their controversy to arbitration, … [each man] surrenders his right to have his case tried by the court, and has to have it tried before a tribunal …”[46]
In 1923, Secretary Hoover wrote to Senator Thomas Sterling of South Dakota, urging passage of the FAA, which Hoover indicated was “prepared by [the American Bar Association’s] committee on commerce, trade, and commercial law, and approved of by a large number of associations of business men.”[47]
In 1924, Senator Sterling submitted the Senate Judiciary Committee’s recommendation for passage of the Federal Arbitration Act (“FAA”), which would provide for the courts to enforce agreements to arbitrate commercial disputes. Senator Sterling explained to his fellow senators that the Act was needed to overcome courts’ fear and jealousy about whether “arbitration tribunals” could do justice between the parties.[48] In dispelling those misconceptions, Senator Sterling noted, inter alia, that the Arbitration Society of America (“ASA”), “through its arbitration tribunal,” had settled more than 500 cases in less than two years of its existence. [49]
In support of this point, Senator Sterling quoted an article published in The New York Times on May 11, 1924 regarding the work of the ASA, which stated: “Complicated controversies involving large sums of money, which, beyond a reasonable doubt, if taken to the courts would have been fought through years of costly litigation, have been legally determined in this tribunal … in from two to three weeks.”[50] Thus, common usage of the word “tribunal” in the context of commercial arbitration was not limited to the language of American business and law, but by 1924 had entered the lexicon of every American who read the newspaper.
The following year, the FAA addressed arbitration agreements involving interstate and foreign commerce. Its enactment by the United States Congress was the product of consistent lobbying from the American Bar Association and the Chamber of Commerce of the State of New York. Together, they urged uniformity in arbitration law and provided the draft of the FAA with only “trifling amendments” from the Congress at its passage.[51] The Chamber’s “long efforts in support of…commercial arbitration” secured the public endorsement of the then-Secretary of State and later-Chief Justice of the United States Supreme Court, Charles Evans Hughes, at a meeting where commercial arbitration was “portrayed as part of a larger worldwide movement towards peace.”[52]
Indeed, when the FAA was enacted, there was confidence that the U.S. experience in using arbitration for business controversies “will…largely influence the settlement of international disputes.”[53] A former member of the New York City Bar was quoted in The London Times as stating that the “United States Arbitration Law” would “affect all agreements containing an arbitration clause made by residents of Britain or of the Continent Europe” with merchants in the United States.[54]
As a companion to the enactment of the FAA, the AAA was created in 1926. According to the historical account of the AAA prepared by its First Vice-President, published in 1948, the AAA established a “Commercial Arbitration Tribunal” and set about to create a “national system of tribunals.”[55] Such tribunals consisted of “facilities and services” which commercial parties could use to resolve their disputes.[56] “[T]he Association had in mind … the processing of arbitrations in tribunals under Rules of Procedure.”[57] As of 1928, the Arbitration Rules of the AAA provided that the AAA’s Arbitration Committee “shall have general charge of the Arbitral Tribunal and … shall formulate rules for its conduct.”[58]
The AAA also confirmed at that time: “Under the common law and most state statutes, arbitration is a quasi judicial or extra court proceeding.”[59] “Under American practice,” at that time, “an arbitrator once appointed by whatever method the parties approve, is an independent judge, obligated to hold hearings, take evidence, and make an award. This decision is his own, or that of a majority when more than one person serves … .”[60] Indeed, a review of the AAA rules of commercial arbitration, from its inception, shows that such proceedings would probably fulfil the Supreme Court’s functional analysis test articulated in Intel 76 years later.[61]
The early AAA explained in 1928: “Through long practice certain terms have become identified with arbitration and are in common usage. … Commercial arbitration is the name given to the settlement of disputes arising out of … business relations … . The place where the hearings are held is generally referred to as the arbitration tribunal.”[62] At this time, the term “tribunal” did not yet refer also to the panel of arbitrators itself, who were still referred to as arbitration “boards” or “committees.”[63]
The AAA also observed: “Arbitration is, therefore, legally applicable to any contract wherein the parties agree to substitute an arbitral tribunal for the court … .”[64] The AAA went on to note that “some organizations … maintain arbitration tribunals” for the resolution of commercial or trade disputes.[65] Thus, for example, also in 1928, law professor Paul Sayre explained in reference to commercial arbitration that “an irrevocable submission to arbitration by a private tribunal…involves…a limitation upon the parties’ fundamental rights to appeal to the courts for protection… .”[66]
In 1930, law professor John Abersold used the word “tribunal” in a political science journal article in the context of the “origin and growth of commercial arbitration.”[67] Professor Abersold did not distinguish between domestic or international arbitration, as long as “it is commercial in nature”: he gave an example of hypothetical dispute between an American exporter of cotton in New York and an English cotton importer in Southampton who may provide for commercial arbitration in the event of a dispute.[68]
The AAA maintained arbitral facilities with organizations in other countries to settle commercial disputes arising out of contracts between Americans and other nationals beginning in the 1930s.[69] Specifically, the AAA was authorized by the Pan-American Union to create the Inter-American Commercial Arbitration Commission in 1934.[70] The Commission received the endorsement of the Governments of the American Republics and of President Theodore Roosevelt with the active cooperation of the United States Departments of State and Commerce.[71]
By 1936, “[t]housands of contracts now carry [the AAA’s] standard arbitration clause.”[72] “The American Arbitration Tribunal” maintained a “national panel of arbitrators, comprising about 7000 men so distributed throughout the country as to give service in [] 1600 cities.”[73] In just the first ten years of its existence, the AAA had handled 5,646 arbitrations, not counting arbitrations conducted in the many “trade tribunals.”[74]
The AAA was handling an increased number of cases involving imports to the U.S. and exports to foreign points, following the National Foreign Trade Council’s endorsement of arbitration in 1934.[75] These cases involved, for example, velveteen from Czechoslovakia; stationery from Germany; linens from Belgium, and wines from France. [76] By that time, the AAA had established relationships with American chambers of commerce in Europe and foreign chambers of commerce in the U.S.[77]
According to a 1939 paper on international commercial arbitration published in the American Bar Association Journal, merchants, being “repelled by…delays of mediaeval Courts of Law” were driven to “find some other tribunal” and inevitably “resort to private arbitration” as trade increased;[78] “[m]ost of the important Chambers of Commerce throughout the United States maintain Arbitration Tribunals…”[79]
In 1939, the Vice President of American and Foreign Power Company, James S. Carson, noted that private arbitration was available through various chambers of commerce and “specialized tribunals” and “[i]t was impossible to tell the number of international trade contracts which provide for arbitration…”[80]
An agreement concluded in 1943, which established the Canadian-American Commercial Arbitration Commission, provided for “Canadian-American Commercial Arbitration Tribunals.”[81] Thereafter, in 1944, law professor Heinrich Kronstein, who was opposed to the development of private arbitration because the “arbitral tribunals” had “usurped judicial control,” thereby confirmed the prevalence of commercial arbitration, and used the word “tribunal” 90 times in that context.[82]
Popular meaning in the U.S. after the Second World War: expansion of American enterprise and arbitration
International commercial arbitration expanded with the globalization of American business after the Second World War, with U.S. law as a response to, not the genesis of, that phenomenon. Emerging victorious from the Second World War and as the world’s leading economic power, “[p]roducts like Coca-Cola became desired commodities abroad …. The demand for American-made goods – along with the movement of people on U.S. commercial airlines like Pan Am or with travelers staying in American-run hotels abroad like the Hilton chain – established the United States as a global economic leader.”[83]
International commercial arbitration provided stability and predictability for such global business ventures. In 1947, the renowned international law scholar Philip C. Jessup recognized, in The American Journal of International Law, the “wide-spread international recognition and authority” of “private arbitration tribunals.”[84] Richard N. Gardner, who would become the U.S. Ambassador to Italy and Spain, explained how the economic and political implications of international commercial arbitration included the promotion of security: because it “removes an obstacle to [the uninhibited flow of international trade and investment].”[85]
In 1948 and 1949, the American Bar Association and the Inter-American Bar Association advocated for the “intensive development and wide-spread use of commercial arbitration for the direct settlement of disputes between individuals of diverse nationalities.”[86] As of 1950, a similar resolution was to be submitted by the American Branch of the International Law Association.[87] In the Spring of 1950, students from the U.S. and around the world attended a course on international commercial arbitration at New York University Graduate School of Law.[88] Also that year, the AAA reported that:
50,000 claims and differences have been submitted in [the Voluntary Arbitration] Tribunals. As many again have been settled through the use of arbitration clauses without recourse to either a tribunal, a court, or to force. This is not the whole story. Hundreds of trade associations, commercial organizations and commodity exchanges apply voluntary arbitration to keep the wheels of industry moving smoothly. … Parties to international trade, commercial and financial contracts now turn to voluntary arbitration … . Voluntary arbitration is becoming an American and international way of life.[89]
Considering only the cases filed in New York City, the number of cases (domestic and international) received by the AAA was by then somewhat greater that the number of cases of a comparable nature filed in the U.S. District Court for the Southern District of New York.[90] From 1947 to 1954 an average of 471 commercial cases were filed at the AAA each year, with a low of 427 in 1948, largely due to World War II, and a high of 544 in 1951.[91]
New York also became one of the two most popular centers for international commercial dispute resolution post-World War II.[92] During the 1950s, Soviet companies or agencies were already arbitrating with American parties in New York under the AAA’s administration.[93]
By 1950 commercial arbitration was recognized in Latin America as “a successful method” to settle “controversies…both in domestic and foreign trade.”[94] This welcome attitude from Latin America seems to be the result of the continuous advocacy efforts of business associations including the United States Chamber of Commerce.[95]
Thus by 1951, there had been established four systems of “international commercial arbitration”: the British system via the London Court of Arbitration; the International Chamber of Commerce headquartered in Paris (with the participation of 40 countries including the United States); the Soviet Union system for adjudication of disputes between soviet state agencies or enterprises and businesses of other countries; and the Western Hemisphere system comprising three “international arbitration tribunals,” namely, the AAA, the Inter-American Commercial Arbitration Commission (for disputes between U.S. and Latin American businesses) and the Canadian-American Commercial Arbitration Commission.[96] There were also established by that time similar institutions of arbitration around the world including in Australia, Turkey, India, Japan, the Philippines and numerous others. And all of these were referred to as “arbitration tribunals.” [97]
In Martin Domke’s[98] 1952 analysis of the enforcement of U.S. arbitral awards abroad, “tribunal” was used to refer to private arbitral tribunals in the author’s own words and the cited references.[99] In 1956, Professor William Jones undertook to address common misconceptions about commercial arbitration, like, “persons or groups in a dominant position…can force persons…to submit disputes to prejudiced tribunals…” as part of the University of Chicago’s research project on arbitration history.[100]
The UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 was popularly known as the New York Convention because it was negotiated and signed in New York.[101] This multi-lateral treaty, in which a U.S. delegation participated, responded to the expanding (not nascent) phenomenon of international commercial arbitration. Indeed, it was effectively a new and improved version of long-standing international agreements for judicial support of arbitration agreements and awards, i.e., the Geneva Protocol of 1923 and Geneva Convention of 1927.
In 1958, the U.S. Delegation to the United Nations Conference on “International Commercial Arbitration” specifically used the word “tribunal” in its final report on to the U.S. Government on the New York Convention to refer to international commercial arbitration: “[T]he convention covers awards arising out of arbitrations conducted by permanent arbitral bodies as well as arbitrations conducted in each case by an ad hoc tribunal. … [F]oreign trade arbitrations [] are presumably the major concern of the convention.”[102]
Although the Delegation recommended that the U.S. should not sign the New York Convention yet due to certain conflicts with federal and state law, the Delegation supported “winning a wider use of arbitration” between foreign traders in the United States and their business counterparts abroad.[103]
Meanwhile, many Americans had already been using international commercial arbitration and were eager for the U.S. to sign the New York Convention. “The results of a survey of American business firms and lawyers having international connections evidence substantial support to accession by the United States to the [New York Convention].”[104] Among these were the Aluminum Company of America; American & Foreign Power Company, Inc.; Graver Tank & Mfg. Co.; The B. F. Goodrich Company; Minnesota Mining and Manufacturing Company; and Mobil International Oil Company.[105]
Likewise, the American Bar Association had long been interested in the preparation of a general treaty that would make enforcement of awards obligatory[106] and called for the United States to ratify the New York Convention: “[T]he time has come … to co-operate to the fullest extent in extending the rule of law for the benefit of its own nationals who trade and invest throughout the world,” since the United States “has emerged as the foremost trading and investing nation.”[107]
At this time, Americans continued to refer to commercial arbitrations using the word “tribunal.” For example, in 1959, the President of the American Bar Association, Sylvan Gotshal, indicated that, for a lawyer and his client, arbitration submitted under the AAA Rules are guaranteed a “well-organized tribunal.”[108] And the public continued to be aware of international commercial arbitration. Martin Domke and Stephen Schwebel,[109] the latter of whom joined the U.S. State Department as Assistant Legal Advisor on United Nations Affairs in 1961, made a joint presentation in New York in 1959 about a landmark international commercial arbitration between an Israeli buyer and a Soviet state-owned entity for delivery of oil.[110]
By 1961, the AAA had concluded thirteen agreements with similar organizations abroad for the use of one another’s facilities in support of “American businessmen” and to help give effect to the U.S. Treaties of Friendship, Commerce and Navigation which provided for reciprocal enforcement of arbitral agreements and awards.[111] Such treaties had been concluded with China in 1946 and with Ireland in 1950, followed by treaties with Colombia, Israel, Denmark and Italy.
In September 1962, the Board of Directors of the World Bank resolved during its annual meeting to “set up machinery” for the arbitration and conciliation of disputes between governments and foreign companies, i.e., investor-State arbitration.[112] As mentioned below, investor-State arbitrations would also be presided by “tribunals.”
In 1963, the U.S. State Department confirmed its ongoing recognition and support for international commercial arbitration when it designated Martin Domke as the national correspondent in the U.S. for the Arbitration Center of the Economic Commission for Asia and the Far East.[113]
On March 23, 1963, CBS’s popular television series “The Defenders” depicted a commercial arbitration case before a three-member tribunal.[114]
Also in 1963, the Foreign Commerce Department of the Chamber of Commerce of the United States published a booklet entitled The International Trader and International Commercial Arbitration, recommending the use of AAA and ICC rules.[115]
In 1964, the AAA reported that “[c]ommercial cases—partnership disputes, industrial buying and selling controversies, building construction controversies, and the like—have been rising about ten percent in recent years. The total of such cases in 1961 was 800. In 1962 there were 887 commercial cases, and in 1963, 985. [And,] arbitration clauses are standard features of commercial contracts of all kinds.”[116]
The Arbitration Journal, published quarterly by the AAA every year from 1937 through 1964 and beyond, typically featured in every issue one or more articles concerning international or foreign arbitration; maintained a continuous board of dozens of “Consulting Editors Abroad”; and listed the AAA’s several “International” publications, including the International Year Book on Civil and Commercial Arbitration, Arbitration in International Controversy, Practical Hints on International Commercial Arbitration of the ICC, ICC Rules of Arbitration, and Foreign Trade Arbitration Clauses, and many more.
By the 1960s, the term “tribunal” continued to be used in commercial arbitration, but its meaning had expanded to refer also to the panel of arbitrators itself:
“Tribunal. A tribunal in arbitration is composed of one or more arbitrators with the authority to hear and decide disputes. Tribunal may also be used as the site of a court or arbitration. It is also often referred to as an arbitration court.”[117]
For example, the Arbitration Rules of the AAA, as amended and in effect on June 1, 1964 provided: “Name of Tribunal – Any Tribunal constituted by the parties for the settlement of their dispute under these Rules shall be called the Commercial Arbitration Tribunal.”[118] These rules continued to contemplate that disputing parties may hail from different countries.[119]
Thus by 1964, usage of “tribunal” to refer to international commercial arbitrations, and specifically to the arbitrators, had come into alignment with such usage for State-State arbitrations: “If the [arbitral] tribunal is not constituted within three months … the President of the International Court of Justice shall … appoint the arbitrators …”);[120] and for investor-State arbitrations (“The Arbitral Tribunal (hereinafter called the Tribunal) shall be constituted as soon as possible … The Tribunal shall consist of a sole arbitrator or any uneven number of arbitrators …”).[121] Subsequent judge-made distinctions between “state-sponsored” arbitrations and “private arbitrations” are, unfortunately, divorced from the ordinary meaning of the word “tribunal” in 1964, which had long-since been used in reference to both.
* * *
In conclusion, overwhelming evidence of popular usage confirms that that the word “tribunal” in the American lexicon has always included commercial arbitration, both domestic and international – which was by no means then-novel in 1964. Since the 18th Century, the word “tribunal” was used in reference to domestic and international commercial arbitration by tens of thousands of American businesspeople who used such arbitration, along with government officials, arbitration institutions, legal scholars and practitioners, and the public. Since there is no ambiguity in the language of the statute, there is, fortunately, no need for the Supreme Court to resort to legislative history or to apply judge-made criteria that categorically exclude international commercial arbitration from the ambit of § 1782. Rather, with ordinary meaning confirmed in historical popular usage, “the inquiry is ended.” The statute provides for judicial assistance to obtain evidence for use in international commercial arbitrations.
[1] Ryan Mellske is the Founder of Flex Arbitri PLLC, focusing on the resolution of international commercial and investment disputes, and a Senior Lecturing Fellow in International Arbitration at Duke University School of Law. Enning Chang is an Associate at Flex Arbitri and an alumnus of Duke Law School. The views expressed herein are those of the authors and not those of Flex Arbitri or Duke Law School.
[2] Abdul Latif Jameel Transp. Co. v. Fedex Corp. (In re Application to Obtain Discovery for Use in Foreign Proceedings), 939 F.3d 710, 717 (6th Cir. 2019) (internal citations and punctuation omitted).
[3] Application of the Republic Kazakhstan v. Biedermann International, 168 F.3d 880, 882 (5th Cir. 1999).
[4] Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J. L. & Pub. Pol’y 61, 67 (1994).
[5] Statutory Interpretation: Theories, Tools, and Trends, Congressional Research Service (5 Apr. 2018), 19, citing Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 528 (1947).
[6] Green v. Bock Laundry Mach. Co., 490 U.S. 504, 528 (1989) (Scalia, J., concurring).
[7] Congressional Research Service, supra note 5, at 14.
[8] Abdul Latif Jameel Transp. Co. v. Fedex Corp., 939 F.3d at 717 (internal citations and punctuation omitted).
[9]Antonin Scalia & Brian A. Garner, Reading Law: The Interpretation of Legal Texts 33 (2012).
[10] Montclair v. Ramsdell, 107 U.S. 147, 152 (1883).
[11] Application, Republic Kazakhstan v. Biedermann, 168 F.3d 880, 881 (5th Cir. 1999) (internal citations and punctuation omitted).
[12] New Prime Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019).
[13] George A. Bermann, et al, A Historical Introduction to International Commercial and Investor-State Arbitration, The ALI Adviser (19 May 2019), https://www.thealiadviser.org/international-commercial-arbitration/historical-introduction/.
[14] Tribunal, Oxford English Dictionary (10th ed. 2021).
[15] Sabra A. Jones, Historical Development of Arbitration in the United States, Minn. L. R. 240, 243 (1928) (emphasis supplied).
[16] Earl S. Wolaver, The Historical Background of Commercial Arbitration, 83 U. Penn. L. Rev. 132, 132 (1934).
[17] C. Frank Crawford, An American Viewpoint, 1 Arb. J. 131 (1937).
[18] Decennial Report of the American Arbitration Association on the Progress of Commercial Arbitration (1936), 7.
[19] Charles T. Gwynne, The Oldest American Tribunal, 1 Arb. J. 117 (1937).
[20] Soia Mentschikoff, Commercial Arbitration, 61 Colum. L. R 846, 855 (1961) (emphasis supplied).
[21] The Will of George Washington, https://trans-lex.org/800900/_/arbitration-clause-in-the-will-of-george-washington-1799/ (last visited Mar. 15, 2022).
[22] Mikaël Schinazi, The Three Ages of International Commercial Arbitration (Cambridge University Press, 2021).
[23] Id. at § 3.2.1.
[24] Id. at § 3.2.2.
[25] See, e.g., Republic Kazakhstan v. Biedermann, 168 F.3d at 882 (misunderstanding that § 1782 was extended to arbitration only as to “international government-sanctioned tribunals”); but see, N.Y.C. B. Comm. Int’l. Comm. Disp., 28 U.S.C. § 1782 as the means of obtaining Discovery in aid of international commercial arbitration—applicability and best practices (Feb. 29, 2008), 2-4, https://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/28-usc-1782-as-a-means-of-obtaining-discovery-in-aid-of-international-commercial-arbitration-applicability-and-best-practices.
[26] Schinazi, supra note 22, at 47-48.
[27] John R. Abersold, Commercial Arbitration: A Practical Plan, 148 The Annals of the Am. Acad. of Pol. and Soc. Sci. 247, 278 (1930).
[28] International Trade Arbitration: A Road to World-Wide Cooperation 259 (Martin Domke ed., 1958).
[29] Lynden Macassey, International Commercial Arbitration – its origin, development and importance, 24 A. B. A. J. 518, 522 (1938).
[30] Schinazi, supra note 21, at 62; Contractual Knowledge: One Hundred Years of Legal Experimentation In the Global Market 163 (Grégoire Mallard & Jérôme Sgard eds., 2016).
[31] Schinazi, supra note 22, § 6.2.1.2.
[32] Id. at §. 6.2.1.1.
[33] Id. at 96.
[34] Id. (internal citations omitted).
[35] Id.
[36] Id. at § 6.2.
[37] See Schinazi, supra note 21, §. 6.3.1 at 117 (“At the 1921 ICC congress in London, it adopted a resolution recommending that arbitration clauses ‘be declared valid by all countries’ and that ‘in all countries an effort be made to secure legislation that will render executory the awards of foreign arbitrators without reference to the nationality of the parties.’”)
[38] Jan Paulsson, International Arbitration is not Arbitration, 2 Stockholm Int’l. Arb. R. 1, 5 (2008).
[39] Mallard & Sgard (ed.), supra note 30, at 173-74.
[40] Martin Domke, On the Enforcement Abroad of American Arbitration Awards, 17 L. & Contemp. Probs. 545, n.63 (1952).
[41] Mallard & Sgard (ed.), supra note 30, at 171.
[42] Am. Arb. Assoc., Yearbook on Commercial Arbitration VII (1927); see also, Herbert Hoover, The Memoirs of Herbert Hoover: The Cabinet and the Presidency 1920-1933 61 (1952).
[43] Imre Szalai, Outsourcing Justice: The Rise of Modern Arbitration Laws In America 109 (2013).
[44] Jay E. Fitzgerald, American Chambers of Commerce in Foreign Countries, 94 Annals of the Am. Acad. of Pol. & Soc. Sci. 122, 125 (1921).
[45] See Imre S. Szalai, Modern Arbitration Values and the First World War, 49 Am. J. Legal Hist 355, 370 (2007).
[46] Hearing on S. 4213 and 4214 before a Subcommittee of the Senate Committee on the Judiciary, 67th Cong., 4th Sess. 2 (1923), 9.
[47] Szalai, supra note 43, at 144.
[48] S. Rep. No. 536 (May 1924), reproduced in Imre Szalai, An Annotated Legislative Record of the Federal Arbitration Act 177 (2021).
[49] Szalai, supra note 48, at 178.
[50] Id., at 175-76.
[51] Jones, supra note 15 at 249; William S. Gordon, International Aspects of Trade Arbitration, 11 A. B. A. J. 717, 718 (1925).
[52] Szalai, supra note 45, at 369 (emphasis supplied).
[53] Id.
[54] Gordon, supra note 51, at 717.
[55] Frances Kellor, American Arbitration: Its History, Functions and Achievements 20 (1948).
[56] Id. at 23.
[57] Id. at 63.
[58] Arbitration Rules of the American Arbitration Association, reproduced in Suggestions for the Practice of Commercial Arbitration in the United States Annex IV (1928).
[59] Id. at 1.
[60] Franklin E. Parker, Jr., S. Whitney Landon, & Frances Kellor, The Arbitrator, 1 Arb. J. 161 (1937).
[61] Intel Corp. v Advance Micro Devices Inc, 542 U.S. 241, 264-65 (2004) (requiring of a “tribunal” a first-instance decision-maker, gathering of evidence, authority to determine liability and impose penalties, and judicial review).
[62] American Arbitration Association, supra note 58, at 2 (emphasis supplied).
[63] Id.
[64] Id. at 13.
[65] Id. at 18, 67 (listing “public, trade, or special tribunals …”).
[66] See Paul Sayre, Development of Commercial Arbitration, 37 Yale L. J. 595, 608–09, 611 (1928).
[67] See Abersold, supra note 27, at 250.
[68] See id. at 248.
[69] Martin Domke & Frances Kellor, Western Hemisphere Systems of Commercial Arbitration, 6 U. Toronto L. J. 307, 320-21 (1946).
[70] Martin Domke, Inter-American Commercial Arbitration, 6 U. Miami L. R. 425, 427 (1950).
[71] Id. at 24-25.
[72] Decennial Report, supra note 16.
[73] Id. at 15.
[74] Id. at 18.
[75] Id. at 18-19.
[76] Id. at 25.
[77] Id.
[78] See Macassey, supra note 29, at 518-519.
[79] Id. at 522.
[80] James S. Carson, Does International Arbitration Work, 101 World Aff’s. 78, 79 (1938).
[81] See Domke & Kellor, supra note 69 at 327.
[82] See Heinrich Kronstein, Business Arbitration Instrument of Private Government, 54 Yale L. J. 36, 56 (1944).
[83] Great Responsibilities and New Global Power, The National WWII Museum (23 Oct. 2020), https://www.nationalww2museum.org/war/articles/new-global-power-after-world-war-ii-1945.
[84] Philip C. Jessup, Modernization of the Law of International Contractual Agreements, 41 Am. J. Int’l L. 378, 393 (1947) (“The rapid growth of commercial arbitration, with the establishment of many private arbitration tribunals which have already achieved wide-spread international recognition and authority, suggests the procedural line which may be followed in dealing with agreements between individuals and states. The conclusion of international conventions whereby states have agreed to recognize the binding force of such arbitral awards is further evidence of their increasing international stature.”)
[85] Domke, supra note 28 at 17.
[86] George H. Sibley, Commercial Arbitration as an Economic Way to International Cooperation, 5 Arb. J. 98, 99 (1950).
[87] Id.
[88] International Arbitration: A Student Symposium, 5 Arb. J. 182, 182 (1950).
[89] 25 Years of Arbitration in America, 5 Arb. J. 260, 260 (1950) (emphasis supplied).
[90] Hal Smith, Commercial Arbitration at the American Arbitration Association, 11 Arb. J. 3, 4 (1956).
[91] Id.
[92] See Pamela Bookman & Matthew Erie, Experimenting with International Commercial Dispute Resolution, 115 AJIL Unbound 5, 6-7 (2021).
[93] See Martin Domke, The Israeli-Soviet Oil Arbitration, 53 Am. J. Intl. L. 787, n.53 (1959).
[94] Domke, supra note 70, at 425 (“Commercial arbitration has long been recognized in Latin America as a successful method of settling controversies which arise both in domestic and foreign trade.”).
[95] Id. at 434.
[96] Morris S. Rosenthal, The Promotion of International Commercial Arbitration, 6 Arb. J. 223, 225-27 (1951).
[97] Id. at 225-29.
[98] Dr. Martin Domke was the Vice President of the American Arbitration Association, Editor of the Arbitration Journal and legal scholar who contributed substantially to the advancement of international commercial arbitration in the mid-Twentieth Century. See generally W. Paul Gormley, International Arbitration, Liber Amicorum for Martin Domke, 19 Buffalo L. R. 137 (1969).
[99] See Domke, 17 L. Contemporary Problems 545, supra note 40, at n. 68 and n. 92 (1952).
[100] William C. Jones, Three Centuries of Commercial Arbitration in New York: A Brief Survey, 1956 Wash, U. L. Q. 193, 193 (1956) (emphasis supplied).
[101] Id.
[102] 1958 Report of the U.S. Delegation to the United States Conference on International Commercial Arbitration, 19 Am. Rev. Int’l Arb. 91, 99 and 117.
[103] Id. at 119.
[104] Clifford Hynning & George Haight, International Commercial Arbitration, 48 A. B. A. J. 236, 238 (1962) (Clifford Hynning was Chairman of the Committee on International Unification of Private Law of the ABA’s Section of Int’l & Comp. Law).
[105] Id., citing the 1960 Report of the Committee on International Unification of Private Law.
[106] Martin Domke (ed.), supra note 28, at 10 (1958).
[107] Hynning & Haight, supra note 105, at 238; Ian Macneil, American Arbitration Law: Reformation, Nationalization, Internationalization 162 (1992) (quoting Committee Reports of Comparative Law Division, 1960 Am. Bar Assoc. Sec. Int’l & Comp. L. Proc. 147, 232).
[108] See Sylvan Gotshal, Arbitration and the Lawyer’s Place in the Business Community, 11 Bus. Law. 52, 58 (1956).
[109] Judge Stephen Schwebel was Legal Adviser to the United States delegation, and Alternate Representative in the Sixth Committee, during sessions of the United Nations General Assembly (1961-1965), and the Former President of the International Court of Justice. See TDM Journal Contributing Author’s Profile page, https://www.transnational-dispute-management.com/about-author-a-z-profile.asp?key=673 (last visited Mar. 16, 2022).
[110] See Domke, 53 Am. J. Int’l L., supra note 93 at 787.
[111] See Domke, supra note 40, at 549 (1952); International Trade Arbitration, in Arbitration News of the American Arbitration Association, No. 2 – 1962.
[112] World Bank to Enlarge Arbitration Role, in Arbitration News of the American Arbitration Association, No. 9 – 1962.
[113] Domke Named U.S. Representative in World Body, in Arbitration News of the American Arbitration Association, No. 4 – 1963.
[114] Commercial Arbitration on Realistic TV Drama, in Arbitration News of the American Arbitration Association, No. 5 – 1963.
[115] Commerce Group Urges World Trade Arbitration, in Arbitration News of the American Arbitration Association, No. 9 – 1963.
[116] AAA’s 1963 Caseload up Twenty Percent, in Arbitration News of the American Arbitration Association, No. 1 – 1964.
[117] A Dictionary of Arbitration and Its Terms (Labor, Commercial, International): A Concise Encyclopedia of Peaceful Dispute Settlement (Katharine Seide ed., 1970) 228.
[118] Arbitration Rules of the American Arbitration Ass’n. (June 1, 1964), reprinted in Dictionary of Arbitration and Its Terms (Labor, Commercial, International): A Concise Encyclopedia of Peaceful Dispute Settlement 289 (Katharine Seide ed., 1970).
[119] Id.
[120] Model Rules on Arbitral Procedure, International Law Commission (New York 1958).
[121] Art. 37, Convention on the Settlement of Investment Disputes between States and Nationals of Other States, Mar. 18, 1965, 17 U.S.Y. 1270, 575 U.N.T.S. 159.