of section seven hundred and eighty two dollars and require the reversal of the district court's order below it would also result in this court joining the approximately seventy percent of courts across six traditional circuits that have reached the same conclusion question presented here was eleven circuit it found in the way they were asking it to rule that decision was subsequently was drawn two years later on the basis that there was an easier way for the circuit court to rule that was was trying to sp the supreme court specifically lifted language out of the legislative history and the language out of an article published by the author of the statute that identified our brittle bodies as something that fall within the meaning of foreign or international tribunal will in the statute it also undermines it because intel as a whole when you read it stands for the proposition that we should not be reading in categorical limitations into the statute that the statutes plain text does not provide and in one way in which it's particularly relevant here is that intel and apologize that n b c and bitterman before it one of the reasons they ruled against international being a former international tribunal was a suppose a disparity with the discovery one is able to get before the f a a and on that point the court specifically rejected that busy that sort of reasoning your hon arbitrations than for domestic arbitration well one way has that same question is why would congress one more discovery for international tribunals and international courts in its permitted for domestic courts and the southern circuit squarely said that that is that reasoning is flawed in light of the clear language of the statute but the nd reason your honor is that this is the nd reason is that in reaching the decision the united states congress  the competition community and the european the complete ition authority in the european community or if in fact the party is here and when you look at the legislative history when the kennedy administration said this case to  congress is specifically said that it was sending it to promote to give assistance to private litigants your honor and when you look at the statute and the predecessor statute which everybody concedes was designed a treaty to which the united states was a party and in which the united states or its national had a claim congress specifically identified those restrictions as quote unquote undesirable and when you look at the modern language of section and eighty two dollars there is no such restriction there it is simply says that it is designed to discovery is available in aid over a proceeding pending before for international tribunal i would also know that in this particular case there is a a gets its authority not from the agreement of the parties but from an act of the ruler of dubai which created the arbitrary dubai arbitration institute which entered and authorized it to enter into a there is one appointed by the court that's not correct your honor the way it's the way that the rules work it's the court that appoints arbitrators the court appoints all three arbitrary rock the parties have no say whatsoever who pays the which the court ruled against us there's a number of reasons why that test that ruling is incorrect st of all intel does not identify whether the review should be substantive or procedural and we know please the court my name is daniel french and i want with my colleague colleen hitch will soon represent fed ex corporation in this matter several things i just wanted to pick up based on the questions the courts asked him for st of all with regards to the d i of c it is not a state sponsored institution that is just simply not true it is called the dubai international free it was to say it was established as a free trade zone and it was specifically given jurisdiction within the u a e by the u a e but it is no different than a state saying we're going to give land to this organization and they can operate freely within the state without state control without state interference so the u a e has no role in the i f c at all it merely gave them the land and gave them the institution to operate within you go just to their website it explains this and explains that it was necessary because people didn't want to do business in the u a e because of the worry of interference by the u a e government also wanted to pick up on the seventy percent argument that my my posing counsel made that is just simply not true either we tried to run the numbers based on the cases that dale j cites to i think they cite two hundred and seventeen dollars cases that they claim supports their argument that biederman and in b c which are the the th circuit in the nd circuit cases that support our position we tried to run those numbers we couldn't even come up with that percentage and we don't know what the thirty percent they're talking about that ruled the other way because they don't functional analysis and this is the reason why as judge ray cough noted orbital try beautiful it's been used in many contexts that's a common phrase it doesn't necessarily mean private arbitration in fact he noted in his opinion that arbuckle tribunals were quote arbuckle bodies created by governments or intergovernmental agreements this was something that the nd circuit seized on and in b c the nd circuit noted that the phrase ar tribunals this is even before intel but noted that that phrase uniformly in the united states code refers to inter governmental bodies it refers to international tribunals created by government demonstrates that it's ambiguous ok what does tribunals mean does that mean orbital tribunals does it just mean foreign or state courts if it's orbital tribunals does that mean state sponsored arbitrations or are brittle bodies or does it mean all private arbitration worldwide because that's really where this is headed i mean jay's argument is that any adjudicatory body worldwide can come to the united states under seventy two and get discovery as long as as long as you're like a private arbitration and you're a st instance factfinder and you can present evidence and there's any type of judicial review doesn't matter the think any kind of arbitration fits within the meaning of tribunals yes i do  treaty arbitrations ones that are pursuant to bilateral investment treaties ones that involve state governments or are bodies created by state governments sources do you rely upon to say that that's the main driver the same sources that in b c at the nd circuit in the th circuit relied on simply going to the legislative history and looking at what congress was hoping to do when it expanded one thousand seven hundred and eighty two do we just ignore the way courts have interpreted the word tr spoke to this pre intel were the nd circuit in the th circuit after intel simply because it just i'm just talking about the word tribunals in general going back to blackstone i mean i think there's a reference to i think blackstone used try be able to refer to an arbitration you know i mean well it might if they're just evidence out there in the common law that tribunals has been used to refer to arbitration no your honor i do not think that when blackstone when they were using the phrase arbuckle tribunals that it is clear that they meant the modern construct of private arbitration meaning private parties private agreement and private body that's here in the resolution i don't think gail jay really offer support for that just cite to blackstone and then they use the phrase arbiter will try butyl well we admit that the supreme court in tow also cited to all our review article that said our battle tribunals our argument is that does not mean private arbitrations as such as in this case what authority for that our authority would go back to the legislative history and even the supreme courts to such a slate of history clear that it does not apply to private or betray sions your honor they don't address private arbitration at all in the legislative history so it doesn't support well i believe it supports us because congress was clearly aware private arbitrations when it expanded the act in one thousand nine hundred and sixty four the federal also encouraging other state governments and courts to provide similar assistance to u s courts those are the twin aims neither of those aims are satisfied by private arbitrations and it's striking to think that congress who completely aware of arbitrations at that moment in time expanding this would not even discuss arbitrations as being part of that expansion wow they were specifically discussing in a governmental agencies quasi judicial government bodies investigative cords and whatnot in federal kind of arbitration act applied in any type of international private arbitration can you think of any instance where that would occur does your honor mean if parties agreed internationally to the federal arbitration act here to do the arbitration domestically no could if you had an international arbitration going on in the end  and a party in that arbitration wanted to get discovery in this country could they proceed under the federal arbitration act not that i know of your honor what would that what would you have to do under the federal trade share to get discovery in this country  federal arbitration act you would have to go to the panel itself and request permission to take evidence from a rd party that has not been done in this case i would know that but they did that in your case they went to the panel in the panel said it was receptive to this type of discovery and the supposed then they submitted a request to a federal district court under the federal arbitration act of they get discovery no your i don't think that they could but that i'm happy to we have not brief that specific issue but i'm happy to submit further briefing on it with your honor but i'm not aware of any case in which that has happened the mechanisms to get discovery that foreign litigants have used is  two and it in fact is expansive discovery under the federal rules of civil procedure which as your honor knows you cannot get in arbitration so i would say though that even if that were the case if people could come under the federal arbitration act argument and still be the same it would be that private arbitrations are not are categorically excluded from the scope of seventy two i think it helps your argument actually if they could get it under federal arbitration or if there's some availability then there would be potentially a conflict between the federal arbitration act and this statute seventy eight i think runners point to the limitations that the f a a would impose versus sevent two yes you would be correct if there were not aware of that but we will definitely look into that past this point but getting back to basically intel  jay's entire argument for this court to ignore the nd circuit in b c and to ignore the th circuit in beater men and to ignore the th circuits reaffirmation of the interment in el paso posed intel is that somehow intel sub silentio did not even discuss those two cases when it used the language orbital tribunals it didn't know that the nd or the th circuit had already found the opposite of this issue and i think your honour's if you look at the substance of int intel was concerned with the european commission they were concerned with a state sponsored body this was not a private arbitration and in fact under the european commission whatever their rules were you could appeal to the court  instance in europe you could then appeal to the court of justice in europe and those courts had the ability to amend whatever the commission found they could substantively review what the commission found so i submit to this court that intel did not examine the issue that is before this court and all the briefs filed in the supreme court refer to the nd circuit case in the circuit case your honor i'm not aware of that but i'm happy to have and you  haven't reviewed them i mean i'd be shocked if they didn't at your honor i'm not aware of that but i have to go back and look at the top of my head i don't remember if they specifically referred to those cases but i would submit that even if they did they weren't on point to this issue because that they were competing commission didn't start because people privately contracted agreed to a set of rules and then when in front of a private body it started because one of the parties filed an anti trust complaint and once the complaint was filed the of st instance who could not hear evidence in the case task the european commission on its behalf to be together evidence in the case and so this was a completely different type of body that was hearing this and this is the reason the th circuit in el paso after post until said bannerman is still good law there's nothing in intel that's overturned it and so i would submit that the categorical exclusion argument is an argument this court could adopt and apply  in order to affirm the district court's decision now ultimately the district court denied a algy's application under the functional analysis and it did so on the basis that in the d i s see any orbital panels award is not subject to substantive judicial review able j s argument is well when we use judicial review in the functional analysis that's any type of review so if i can move to set aside an award for example under the federal arbitration act that's the kind of judicial review that matters and therefore anybody subject to that kind of review should automatically fall under the functional analysis as a as a tribunals review whatever the commission found substantively we also look at what the court said in two thousand and nine in the hall street versus mattel case and that case the court was dealing with the f a a and it distinguished between two types of review it talked about limited review which is normally a political to arbitrations meaning setting aside procedural whatnot and then it talked about for full bore evidence sherry and legal review that would undermine the the the benefits of arbitration and so i submit that what the court meant in intel when it was talking about the functional analysis and it was talking about judicial review it meant that full bore evidentiary in legal review it did not mean the limited review that you can obtain in the d i i of c in the d i o f c once the arbitration panel has made its award any one of the parties can appeal to the d i f c court in the d i s the court is certainly a state sponsored created institution and it reviews anything that comes out of the panel but the reason that its review is limited is because they want to preserve the cost effectiveness and the efficiency of the arbitration in the d i of c so their review or things like why didn't get notice of who my panel was going to be in time or the panel per see generally failed to the listen to my arguments or there's nothing substantive about it now l j is position is well they can review under public policy so that substantive well no it's not it's still procedural because in public policy they're looking at was the agreement unconscionable because it violates the the positions of the d i of c are the rules of the d what not they cannot i'm in the award they cannot decrease the award they cannot increase the or they can do nothing of the sort they will send it back to the panel after they've made a decision and the panel substantively deals with the issue  thank you your honors really quickly the count of decisions that there is we're aware since two thousand and nine of thirty one decision of which twenty granted discovery native arbitration pivoting back to where mr just finished the functional analysis test and the review available under the rules of the da of c l cia that review for public policy unlike public policy in the united states or most other jurisdictions of which were  is actually prescribed by statute which provides that it should be you can review an arbiter the word for anything that relates to freedom of trade and other rules and foundations a pitch upon which society is base which is empowered to said the word aside if it finds that legal error was made focusing on the state sponsor bit and dubai for just a nd mr french is right and we agree with him the d i s you court is a state sponsored by the very next sub article that in the statute that creates the d i s court creates the de by arbitration institute it is given a board of directors that is appointed by the ch very st sentence references the joint venture of the service station institute it is a state sponsored body focusing on the legislative history your honors your judge griffin you're absolutely right there is nothing in the legislative history that expressly prohibits applying section seven hundred and eighty two to private arbuckle tribunals in fact nothing in the plain text of the statute at all compels that conclusion if you do look if we were to look at the predecessor statute the words used in that statute specifically permitted assistance only any of our beautiful bodies created under the treaty that is what mr french is talking about those words were taken out of the statute when section seven hundred and eighty two dollars was passed and if the plain meaning of the statute dictates that it be given its reading focusing on the question of ambiguity your honor  we have not seen it in their papers we did not actually see it in and they see either no court has provided a definition nor did my mr french tribunal that would exclude  particular meaning for centuries we are to soon that that is what congress meant when it legislated the m b duty to which fed ex argues exist if you look at the case law that they cite it demonstrates a lack of ambigu in the title seven could mean former employer current employee or both depending on the meaning of the statute nothing like that exists here the word tribunal there is no statutory provision in seven dollars anywhere else in title twenty eight or the us code that has been cited that has a different meaning finally to end on the policy point and it is of course true that courts congress legislates and is concerned with policy