good morning your honor i'm happy to be here and i'm also probably dismayed that i'm actually here for a bit involving an accident or an event that occurred on january  and sixteen in charleston south carolina there are two appeals going in this matter one of the th circuit and one before your honor's obviously the issue seems to have crystallized into whether or not what the meaning is of foreigner international tribunal in article twenty eight u s c seven hundred and eighty two judge david norton in the just record in charleston read a very concise and very clear where when he got to the end of the opinion i think you make an error and that's why we're here but he did say that issue needs to be resolved somehow because the decision by judge justice ginsburg in intel in two thousand and four was not necessarily certain or clear and what the tribunal was in terms of the statute which issues need to be addressed by the th circuit perhaps by the supreme court and states so here we are i believe of that this court and as the six circuit court of appeals issued its opinion started this whole process here of trying to exercise our rights under twenty eight u s c seven hundred and eighty two so we're trying to as a small high tech company in buffalo new york it makes a small component that's probably half the size of this glass that in that monitors and helps to monitor fuel flow and they trim one thousand dollars engine manufactured by rolls royce that engine was installed on a boeing dreamliner aircraft  in january of two thousand and sixteen and unfortunately during an engine run after numerous problems with the with regard to fuel flow the engine was started it was killed by fire and the wing of the aircraft was nearly burned off and this is the dreamliner i mean this is a incredible modern aircraft which sells for approx me one hundred and twenty million dollars it's the state of the art here in the air aircraft in we ended up in this problem because our product was as we saw that malfunction initially however we contended that the causation of the kill pipe fire and the resulting damage to the wing of circle raf was not in the chain the chain of causation was broken by the actions of boeing and rolls royce and how they handle this problem it should never have happened and therefore wind blowing settled with rolls royce for the damage to the engine and the damage to the aircraft d they came after several tronics from buffalo new york which had entered into a long term contract in two thousand and nine with rolls royce to provide them these little parts  attorneys ultimately me i got instructed much later read we would skip the high level meeting and we were going to go through a mediation process so to assist in that mediation process which had to take place in  with with an appointed mediator which had been arranged and scheduled we asked rolls royce for discovery and assistance we wrote letters that started in august nd of twenty seven incident was the event was two thousand and sixty in that process we ultimately ended up in disputes in arguments about what should be produced what we were entitled to and what we were not entitled to ultimately and ended up in a we needed to resolve it sounds like there was a discovery dispute and under the federal arbitration discovery would be pretty severely limited and on your reading under section seven dollars discovery would be much more expansive because this is a foreigner international arbitration and i guess i'm asking you that makes any sense why would there be basically an exception to the f a a discovery argument again today from the boeing company that there's a conflict between the federal arbitration act i guess i'm not even asking you to address whether or not there is a conflict i'm just saying as a matter of common sense we have this very strong federal are deemed foreign or international it would come back to what that means i would have expected some indication of that somewhere in the statutory text or something like that so why does it make sense for us to assume that congress intended this kind of discovery rule when it comes to arbitration with one set of rules apply to foreigner international arbitration and another set of applying to best arbitration and not only that but it neglected to say so in the text and statute in the tex true doesn't say thing about any comparison between the f a a and the seven hundred and eighty two it does not but in the legislative history in question legislative history of why it was an act in this statute this between international tribunal generally and provide them assistance in discovery in the federal court system in the us through the statute and although as judge just i'm sorry professor schmidt makes very clear that a comparison which was relied upon in the be different case and in the national broadcast of the conflict or alleged conflict between the f a a and this statute as professor schmidt has written over and over again one has nothing to do whatsoever with that and because we provided greater latitude to a foreign tribunal to conduct discovery as we are here we are an american we are an american company trying to get the scullery of a nonparty to the arbitration u k and he said schmidt said that we can't make that come that comparison it doesn't fit if anything needed to be done about the f a a in terms of article seven as to what will be permitted or not perm taking it a little broader than you have to it seem to me the f a a as well as the arbitration act of one thousand nine hundred and six in the u k provide that the arbitrator can subpoena and direct people to come before the panel and testify produce documents both on the f a a you can do that and and we don't call that discovery we call that compelling the attendance the arbitration it looks to me that this is a little in government in this text of the statute but it looks like this statute intends to be a surrogate for people who aren't available who would testify at the behest of the district court before the district is used to be evidence i mean a matters that are lead reasoning and lead to calculated admissible evidence and that was changed recently to related to a claim of offense this is could objected to by boeing if it was just scot free it seems to me by the text rather what if your effort is to get this testimony to present to the arbitration panel as an absent witness or a document which is to be presented to the arbitration panel not for discovery purposes it may be much more restricted than just included in discovery device but because if if if it's a discovery vice you can see the problem because discovery in united states litigation is the major cost of litigation and arbitration is the major a one million rater and a lot of companies like arbitration to get rid of that cost and also some risks but it seems to me if we think of it as parallel to an arbitration proceeding it's much more restricted i'm just looking here  to give his testimony or a statement or to produce a document for use in the proceedings and act like recommit and it's all it's not a discovery device as much that is to get the testimony or the statement of the document substantially sound that it's and you can't open up arbitration to the normal american litigation under under discovery i agree with your honor i i probably i have  our patrol arbitration panel that arbitron panel as they call it in is that a tribe you know that's still a dicey question i just that is the big question apparently that is the big question in the minds of judge norton and judge buckle in chicago you really don't you that's question i agree with the question but i think the question is absolutely subtlest whether an arbitration in a foreign country is a tribunal or not i think that it's clear that it's clear from all the all the notes in comments that professor schmidt wrote i think it's clear from intel because intel didn't involve a judicial so it was an investigatory body but i want to go back to your question your initial question about london only point is if you serve a subpoena to get testimony it's a little bit like he's the procedure in the rules of procedure where you get testimony of a person who's on a ship or something you're going to get a pretrial testimony for use in the trial to a lot of difference then a discovery counts and if you call it discovery you have now changed the whole nature of arbitration both in england and maybe the united states i  documents that we got from the boeing company that it's up to the ph d the there is absolutely no restriction by under the u k federal you know arbitration act or by the rules of the read the act and i thought it was interesting acts much more for the american and it is but it seems to provide the same basis that the panel will issue subpoenas to bring people before the n the intel case justice ginsburg cited the case called south carolina insurance company in which it said that the house of lords had rules that obviously whatever rights that the party participant in the arbitration the concerns that you expressed about the federal arbitration act and judge harris i believe you said why would it make sense to have section seven hundred and eighty two apply broader and the federal arbitration act and it just seems to be a matter of common sense and you're exactly right it would make no sense but it's far worse than that and i'd like to try to lay out some of the complexities and problems that the interpretation that  would create for the federal court system as well as for litigants and participants in arbitration because the fact is that constrain section seven hundred and eighty two as applying to  private arbitration would create a serious conflict with the a lot has been said in the briefing about private versus governmental yet if you want to use the f a a as an example or something on which we can base some arguments and our local policy when rely on the federal arbitration act makes us rely on or betray ssion as an adjunct to judicial intervention litigation it's monitored by the courts it's in forced one under all the restrictions and provisions and it would not be hard to say that an arbitration panel in the united states is an adjunct or a surrogate for the courts it's an another option of a fish unsee that eliminates the expense when the parties seek an agreement and the agreement isn't forcible in court of law if we assume that so it looks like england has done the very same thing  they have created an adjunct it's not just a private contract and forcible in court law it's a contract it is a sanctioned process in lieu of judicial process and it isn't forcible  to say it's just a private it looks like it is private arbitration and it can only be agreed to under contract of course which is a private nature of it but it is an alternative to judicial proceedings and it is highly regulated and enforced by the state as a benefit to the judicial system the reason you guys put in arbitrating clause and i think your company probably doesn't as much as anybody is to avoid the risks of blue sky damages and the long extended years of litigation of the fair rules which i've always been against but and to get some shorter process that's a little bit more  so you may be right it is private and we think the tribunals connected somehow to the state but i'm not sure it is quite a separate as you would have us think that there is a linkage and you can testimony of the number one principal witness of the ticket and that particular witness happens to be in the york city the united states is said we're going to cooperate internationally and make available provide assistance to have a more integrated judicial system and i think seven hundred and eighty two was part of that policy of some kind of global cooperation on adjudications now the question is does that  reach they use the word tribunals and the question is at reach an arbitration panel and i think it's a good questions a dicey question i guess that's what we're here to answer but i'm not sure we can just simply say arbitration is is a private contract based process and that is a foundational principle in supreme court case law going back many years and let's talk about arbitration it is a distinct and alternative dispute resolution process separate and apart from the sovereign court system and subject to its own matter of fact we came out with opinion here years ago we called it a surrogate judicial process sanctioned  a the the f a absolutely says that arbitration agreement should be treated on the same terms as other agreements and it provides various mechanisms around judicial enforcement of agreements judicial and foresman of awards and very importantly discovery and so and so let me also restrict it regulates the arbitrator's who can and cannot be some can be the school own but get to your discovery that's a good it's scary sure sure so this was an issue that concerned the nd and th circuits and week we submitted should concern this court as well there is a long line of supreme court cases that reiterate the importance of avoiding interpretations of federal law that would render the arbitration process slower more costly and more likely to lead to procedural morass than final judgment and that would be precisely the result of applying section seven eighty two dollars to private arbitration question to your colleague here if we consider this not a discovery process subject to the federal rules of civil procedure which has all  and so forth but we consider this more like the preservation of evidence we don't we have a provision that divides depositions may be taken before actions filed in order to preserve evidence for trial on if we view this act as providing as a surrogate for the our patrol panel the district court providing testimony that would be used by the panel in circumstances where the person is not available because it's in the united states that's much more limited than the scuppers and it could be restricted to another words if the witnesses were in england they would have to go to the arbitration panel and see issue a subpoena to bring them to the here you have to that united states if this is the same thing then we would be under the same rules we would be directing this person to appear before the arbitration panel actually the district court in this case has that person's up and if we thought of it that way your worries would not be as severe with well your honor that would be a very different statute than the statute you have in front of us and it might be it might be a good statute but but in intel the supreme court was clear about what the statute means and what it means is any interested person can trigger full discovery under the federal rules it's says to give his testimony you can subpoena the person they can get shoes subpoena and a court ruling force no your honor it's much more limited under the federal arbitration act direct you to section seven of the f a a only the arbitration panel may issue  course they can accept mine but that's a lot different than american discovery well your honor the district court does have discretion to determine exactly what extent of discovery to offer that i have no disagreement year i don't believe the word discovery i think some of appears but i'm just speaking about the fifty years of interpretation of the statute which is now well established interpretation that yes the district court has discretion just like the district court has discretion for regular discovery in the u s courts to narrow it to two to make amendments to what the parties are requesting but what this statute authorizes is again any interested person full discovery if the district court decides  discretion that's appropriate anyway saying that the interested person cannot do anything the court has to do it in the interest of person has to get from the court a statement or document to be presented and proceed and the whole through the court arbitron in discovery you don't have to do that discovery any party can notice scot free your honor perhaps perhaps or and you want says about the difference between this procedure and u s discovery procedures my understanding is what this also authorizes is the district court to order full discovery under the federals of civil procedure and at the request of any interested person and i'd like to just now talk about some of the implications i'm sorry i know you request for material me it's a request for three depositions of individuals who were involved in some way in the incident that the arbitration is about the if i and i'm not sure it says the order may prescribe the practice of c h or which may be in whole report practice and seizure use of the foreign country and so forth in other words i don't read this is slowing up in discovery including discovery i think this is mainly to obtain a statement from a person under the procedure directed by the your honor we we do not think of that argument that these entire requests are out of bounds because they c lict with the statute because the statute did not provide for deposition depositions outside of a court hearing we will take that argument back to notice of the deposition and here are new rules of deposition or anything like that every deposition in  did this issue come up at all you know your honor because this was a threshold determination about whether this statute applies to me the question here is this statute permits discovery whether seven hundred and eighty two permits discovery the district this was an application to discovery absolutely ok right because that is the mechanism under section seven hundred and eighty two that the parties have been using attempting to use for the last fifty years since since the statute was enacted and   point it but the court doesn't say you do it before the court reporter in your conference the court says may direct the testimony statement be given or the talking or acting produced before a person pointed by the court and then the court sets up the procedure and on that and it may prescribe the procedure so it sounds to me like this is much more like a surrogate arbitration with us helping the english party but the american court isn't providing discovery american court is appointing a person and the witness has to come before that person it's not a deposition it's a statement so the person is put under oath and is given the state and the doesn't seem to be consistent with congress and the judge regardless of whether it's that if whether it's discovery or a narrower procedure along the lines of what you've described the fact remains it's still far broader than what is available under the federal and all the arguments can be made why that person should appear but the arbitrator conditions being the require the person come the only difference between the two is one is a district judge now because we need the process  way we can regulate process and the arbitrator has to force a subpoena also through our team are i'm sure that's not correct under the federal arbitration act you can only get a subpoena issued and enforced in the district in which the panel of it was an application to take discovery so whether or not even if it turns out that section seven hundred and eighty two dollars is not it does not allow for discovery it seems like this thing had to be rejected because this was an application to take discovery and there are enough your honor that if that's what this court concludes about the statute scope and that it doesn't include pretty pre hearing depositions or deposition what was being sought was depositions as part of discovery i would just say that that would be that would be a basis to reject this request i would just ask the court to take care in reaching a ruling like that which may be intention was certain decisions of other ports that me up describe the scope of this process but but but let me just say and i think this is the critical point the judge which is even if it's interpreted the way you interpret it you could use a statute to go to rule that the private arbitrator is not a tribe is because this opens everything up to discovery and that's just an argument as to what tried google means and my suggestion is this is not a discovery pro at all it is a provision by which to take statements in the united states for use in england which england could have done if the person were in it's an assistance international assistance that congress was  provider and the district court's notion that discovery shouldn't be allowed feeds into your argument which is a very legitimate argument if you open up arbitration to discovery oh arbitrations defeated the whole policy for no of course please just on your point about the you thought argument was going to be about the meaning of the word tribunals that was not going to be argument it was going to be the meaning of foreign or international tribunals which is even the term that my colleague used when he was up here very important context provided by those additional terms i don't have time here to get into all of those arguments but it's all laid out in our brief read the briefs of both both sides and the plain mean the context other statutes other sentences you refer to the four sentence of subsection a that refers to the foreign country prescribing the practice and procedure for the foreign tribunals doesn't reference the parties in an arbitration agreement doesn't reference any type of our  panel so the the plain meaning supports us but what i would just leave you with your honor is this court in the comsat decision said a hallmark of our of arbitration and a necessary precursor precursor to it efficient operation is limited discovery and i know that what we've been talking about here is that this is not discovery this is some rd thing that congress created is like reading the text we should not allow we should not allow discover what we if we were to do anything or the how and if we're doing anything we would give the appellant to the selecting to bring somebody before an american tribe and give a statement for use in the arguments again i am not sure i agree with you because i believe the american arbitration act authorizes the arbitrator to bring people before and when i would say your honor the federal arbitration act includes chapter two which applies to the new york convention it applies to international arbitrations as well the f a a governs all arbitrations in commerce arbitration agreement center entered into in commerce just section seven is not available here consider the implications of a ruling here they have already been laid against that have argued arbitrations in miami arbitrations in l a ok u s based a message arbitrations no one's disputing f a a section seven applies to that very limited discovery not to go to the judicial district where the panel is only the panel can order it you can't get create during depositions can't get there you can't get rd party depositions or testimony whether it's depositions or tests when you can't get it you can't get pre hearing document discovery these parties come in they say well we're international because there's a foreign arbitrator or a piece of property were disputing is overseas or there's a contract overseas or one of the parties is international and they argue section seven two should apply in that situation and that they should get access to the broad discovery mechanism for obtaining documents and testimony under section seven hundred and eighty two dollars that is a clear conflict and the supreme court as i said in multiple cases has has declared unless there is clear in manifest evidence of congressional intent to override the federal arbitration act that is not the interpretation of federal law like section seventeen the two that should be adopted thank you very much your hono honor it's interesting to note regard to your questions just humor in the six circuit to noon in the fenix case that the question of the alleged conflict between the federally federal arbitration dollars is is not a conflict one stands for what the f a a was and acted to cover arbitrations for domestic disputes involving in interstate commerce the foreign relations intercourse act which was the predecessor to some community to some canadian one provided for assistance in comedy to international tribunal in the st instance before amended to what was really characterizes judicial organizer state judicial pins tribute the amendment provided for tribunal's for an international tribunal is he trying to say that  the f a a is more restrictive and what's we have given to the foreign tribunal's this private tribunal under the federal of the arbitration i can the u k and according to the chartered institute rules is is is in conflict or shouldn't be allowed is is really where we're going backwards instead of what was intended by the congress when the united states i don't quite understand what you're saying what is your position on section there's supposedly about nineteen cases in the district court level in which they characterize the exercise of rights under seven hundred and eighty two as discovery to assist the ritual tribunal isn't that of a person to take a stake i agree your honor i agree with you completely but if you look at it for a linear that's what the statute authorizes did the district court properly reject your motion for discovery did the district should we affirm on the grounds that what you saw was discovery no no it's not although we've made an to take depositions of three individuals so while the court the court itself under the discretionary factors which are part of seventeen of them from that i'm sorry you filed a motion to take depositions and you now agree that under night and under not but your honor i in the in the six circuit if you the caption of the of how they captured this effort under seventy two dollars it says in rate application to obtain discovery for use of the foreign proceeding and it's characterized as discovery but judge neymar is correct we are trying to get testimony or statements for use before the panel in the u k and the district court rejected  it not on this basis but because it can screw the word tribe exactly and that we still have to face that is the issue here and it seems to me the discovery business is just one of the arguments pro or con on what whether as a matter of policy we ought to construe try to be more broadly or not the arguments made we still faced at the core with the question of who is a foreign or international try i gree completely with iran or her characterized using the word discovery is not met to characterize what the boeing company is arguing is we're going to go you know how bent into the win on pretrial discovery and the federal is the reason that we're not doing it when the court won't allow it i know but your motion was for discovery and as we know discovery in the united states i was a presiding over some hearing some years back and some english lawyer said it's a peculiarity i mean american discovery is so we generous in the world criticizes it maybe legitimately i don't know but owing doesn't want what was an effort to get by my specifying arbitration where you don't have that discovery they don't want this to be a back door to ruin and it seems to me that's a legitimate argument if this is a discovery provision are taking place and of the country it applies to that it provides that you can ask the court here which has jurisdiction state to alexis what it has under those four criteria which and its discretion over and but if you go back historically to be timid and national broadcasting the f a a yeah then you're conflicting you're you're drawing it improper proportionality comparison between what's a lot of other f a a and what was disputes rolls royces and you were in buffalo new york and that was the purpose of the statute to assist a tribunal by giving documents or witnesses and that's what we're here for thank you ron you