foreign or international tribunal under section seven hundred and eighty two dollars server tronics says it is and that its position find support in the supreme court's decision in intel versus advanced micro proceeding was a given so the focus was on the word tribunal and that is the threshold question in this case as well for the whether the district court had the authority to entertain a section seventeen e to application we asked the court to follow the supreme court's guidance based on the terms common meaning confirmed by the context and the this is the functional lens the supreme court used to determine whether a tribunal was involved and tell and turning to the record in this case the chartered institute the original body meets intel's crit in the affidavit of queen's counsel barrister a kill shot which is an rebutted on the record he explained the applicable rules of the chartered institute which also are in the record and the undisputed fact that the rolls royce act is governed by the laws of england and wales thanks that covers any disputes and notably mr shaw cites the ability of the arbitrator under the chartered institute rules to receive allowing federal district judges to imprison united states nationals for failing to provide testimony for the benefit of foreign and international tribunals r in there a difference though between the position you were taking and the powers of the f a a for pretrial testimony pre hearing testimony there i think i think there may be a difference but i don't think that that compels a a different reading  and eighty two and or the no look at the red light my concern is that under your reading of the statute private foreign arbitration tribunal's would have broader powers to compel discovery and domestic arbitration well the foreign average ration tribunal wouldn't compel discovery the discovery would be amassed in the us and the point of it is to at least in my view your honor the point of it is too in comparison to compelling testimony in the production of documents from a rd party under section seven of the arbitration act and this it in the act in a similar situation for average ration there is no ability by the arbitrator's to obtain the evidence from the us of a nonparty so in that in the section seven situation the arbitrator can compel the you can issue a subpoena to compel a person to appear and testify at a hearing and produce documents there's no there is no  similar ability in the foreign proceeding and therefore this section provides the either the foreign tribunal or a litigant the ability to amass said evidence in the powers to private tribunal's not subject to diplomatic kinds of restrictions the way government established tribunals might be and while begun congress may or may not want to extend that power it would be odd to do that without having mentioned in the legislative history i also think it would be helpful if you could address the slippery slope issues that you did not want to address in your reply brief  namely what counts as an international or foreign tribunal as you read the statute and what counts as a tribunal for example with respect to religious courts i think you said well nothing o court in the situation looks to determine whether is this a st instance decision maker that is reaching a final decision and that is the way that intell described the  tribunal and the fact that there has been no distinction in the statute between private and state sponsored arbitrations i believe and i think it's consistent  with the way that the supreme court interpreted the term and intel is going i didn't interpret that term and tell you're pressing very very hard on what is apparent that a call a reference to very slight passage that was not decisive in the case nothing to do with arbitration it did it's correct that it didn't have to do with it but that's not the entire basis for well if you're asking us to create a circuit split article that that's a very aggressive argument and you have to back it up is there any evidence that the parent thetic whole quote from the academic article and its reference to administrative arbitrary tribunals meant private arbitration beyond beyond that article or beyond that reference your honor i'm talking about what is going on in the article from which this passage quotes what's the surrounding discussion does it have any evidence to suggest that the author of the article was talking about private arbitration when he referenced administrative and arb and cited with approval throughout the intel decision in this were asked of the article is he discussed in private arbitration and i think it i think that includes private arbitration and based on what evidence what other surrounding passages from this snippet of apparent that a call quote in the intel decision suggest that he was talking about private arbitration well i think and i can't i can't  recreate for the court at this moment the sentences that were surrounding that specific threat that would be necessary to your argument i guess you'd have to persuade us that he was actually talking about private arbitration and the supreme court knew concerned the quote pertains to a one thousand nine hundred and sixty five note that he wrote that discussed the the work of the rules commission that led to the recommendations that led to do that what's in his head is irrelevant what's important is that surrounding text in this article because that's what the supreme court dropped into the intel decision which again had nothing to do with arbitration so it's a passage of dic it's a citation to professor smith's article and apparent pedicle reference to administrative and are patrolled tribunal's is there anything in the surrounding text of that statement private arbitrations without any restriction and that you know the to the extent that the nd circuit and the th circuit and of course this is before intel interpreted the statute supreme court from n tell teaches that the the concerns are the limitations that the respond in their case in the respondent in this case would like to impose their we had a public law this form of dispute resolution with all of its limitations is patrick did for it yes and the contract and the rules of the arbitration to which the parties agreed involve this are bound by the law of england and wales and also make clear that the parties will be able to use discovery and discovery recognizing that every court every court of appeals to have addressed this question has held against your position that seventy two permits well they will there is another significant thank you your honors i reserve the rest of my time for rebuttal thank you it please the court michael payson are representing appellee the boeing company and appearing on behalf of the pelly rolls royce as well and then joined a council's table by larry kaplan representing rolls royce judge hamilton but and judge brennan i want to address the point about the f a a and i think this is a very important point because considering section seven hundred and eighty two to apply to private arbitration would create a serious conflict with the f a a and the pro arbitration policies it embodies court reiterated the importance of avoiding interpretations of federal law that would render the arbitration process slower more costly and more likely to lead to proceed your old morass than final judgment yet that would be precisely the result of holding that section seven hundred and eighty two authorizes discovery for use in private arbitration as this case amply demonstrates with collateral discovery disputes now proceeding in two separate u jurisdictions and let me just step back and emphasize just how radically the application of section seven hundred and eighty two dollars would transform the standard discovery process in private arbitration section and eighty two dollars authorizes any interested person to trigger a full discovery under the federal rules of civil procedure anywhere the recipient of that discovery resides or can be found that is far broader than the discovery authorized under the f a a or any other arbitration law that i'm from really are with the f a a authorizes only the arbitration panel to order discovery not any interested person it can only be judicially enforced in the district where the panel is seated not in any district where the recipient resides or can be found and the f a a does not provide subpoena power well so the nd the th circuit noted some uncertainty about that question my understanding your honor is that it applies domestically now there's a very important caveat to that to your order somebody to fly from california to chicago for an arbitration here under the f a a for a domestic arbitration you know well it would they would have to be within the jurisdiction of the court in which the panel seated so you can only see can force mint that's when it's going in that in that district it would it would depend on whether there's unfortunate the already over the recipient of the discovery but let me just emphasize some of the implications in going to that point  judge hamilton some of the implications st apply in section seven hundred eighty two dollars the private arbitration would have the extraordinary result that as you noted a participant in private arbitration in a foreign country would have access to far broader discovery through the u s courts than a participant in a comparable domestic arbitration nd it would spawn innumerable disputes about whether a u s based domestic arbitration so subject to the a is actually international for purposes of section seven hundred and eighty two dollars and that's actually happened in several cases litigants have come in and argued that arbitrations in l a in miami are actually international arbitrations for purposes of section seven hundred and eighty two of course they do that because once you're in the arbitration you want to have access to full discovery under the federal rules of civil procedure but that just demonstrates the absurdity of this interpretation and finally and i think this is a very significant point section seven hundred and eighty two would displace the f a a in the significant subset of arbitrations that are subject to both statues certainly domestic arbitrations where there is an argument that it's international because one of the parties is international because the dispute is over a piece of property in in a foreign country there are many many ways that parties could try to argue it's international and now you've got a conflict between the f section seven which is very narrowly cabin discovery and section seven hundred and eighty two dollars this very broad discovery under the federal rules of civil procedure and the supreme court has been crystal clear interpretation interpretations of federal law that would abrogate the f a a in that way are not to be adopted absent clear and manifest evidence of such congressional intent just in epic systems court they reiterated that standard there's no evidence of that intent here now  judge sykes i want to address this parent that tickle from intel as you noted your honor this was a passing reference on an unrelated proposition there is no indication the court intended to indicate that section seven hundred and eighty two applied to private arbitration or adopt professor smith's analysis wholesale turning to the substance of it professor smith very respected international law scholar however here there is a pre an act meant professor smith and a post in akron professor smith pre an act meant professor smith never said a single thing about arbitration let alone private arbitration then he writes this article in one thousand nine hundred and sixty five by the way your honor did not say private arbitration said it ministry of our arbitral tribunal's appeared with the term administrative clearly indicating that it's a governmental entity and then it's not until one thousand nine hundred and ninety eight that professor smit finally comes around to the view thirty years after the statute is in acted that this statute authorizes discovery for use in private arbitration just doing some some textual analysis of the parent that a colon of course would take a parent the bill in the supreme court opinion seriously significantly administrative or arbitrary tribunal all of the rest of the terms in that pair the tickle are referring to governmental entities so it's only natural that you would interpret the reference to arbitrate tribunal to be referring to a governmental entity and that is consistent with how the term is agencies not private sector and tidies let me let me now turn to the to the textual point because i think this is a very critical point that the text is is clear here all the relevant sources of statutory meaning make clear that a foreign or international tribunal is an inherently sovereign entity let's start with the dictionary definitions that contemporaneous dictionary definitions from the time of an meant make that that definition abundantly clear most significantly the one thousand nine hundred and fifty one edition of black's law dictionary which defines tribunals in terms of judges and courts all governmental actors let's look at other statutes nearly contemporaneous legislation we cite the examples in our brief refer separately to arbitration on the one hand and proceedings in tribunals on the other that demonstrates that congress did not understand the term tribunals to subsume all arbitration and i've already noted the uses of the term arbitral tribunal all references to governmental  strongest linguistic argument textual argument has to do with the dropping of language from the old section two hundred and seventy which applied to tribunal's established pursuant to an agreement between the circuit both concluded just on that narrow time that's what the nd and th circuit can do a nd if if circuits concluded even professor smith in his preannouncement writings defined an international tribunal as adjudicatory body established by agreement among multiple governments and of course the term international implies internation among among different governments now let's talk about section two hundred and seventy the st thing i would  it's section five in the in the stat citation provides that the agent of the united states before any international tribunals or commission whether previously or hereafter established in which the united states participates as a party whenever he desires to obtain testimony or the production of books and papers by witnesses may apply to the united states district court so that only that only has the qualifier in which the united states participates as a party and that is the critical point when congress amended section seven hundred and eighty two dollars and repealed to seventy the intent and this  made clear judge hamilton in the legislative history it only intended to dispense with the requirement of u s participation in the international tribunals there is no indication and the legislative history says exactly the opposite that it intended to fundamentally change the meaning of the term international tribunals to include private private entities now just what i want to try to convince you  that the that the textual language is a stitched textual argument is a strong one and in an effort to do that let me let me direct the court to the th sentence of subsection a which i think is critical context for interpret ing the statute and that this is the sentence beginning the order may prescribe and the sentence says the order may prescribe the practice and procedure which may be in  whole or part the practice and procedure of the foreign country or the international tribunals for taking the testimony or statement or producing the document or thing now that of course presumes that a foreign country will be prescribing the practice and procedure to govern any foreign tribe you know of course when it comes to private arbitration it's the arbitral for it itself or the parties in their agreement not the host government that prescribes the practice and procedure yet those sources of authority go unmentioned again strongly indicating that congress did not have private arbitration in mind let me also address the legislative history because the legislative history is definitive as well that history demonstrates the purpose of the statute was to provide aid to foreign litigants in order to encourage foreign countries to reciprocate by providing aid to litigants the entire focus is on government to governmental relations not private entities moreover as the supreme court noted in intel congress in establishing the rules commission in  fifty eight to draft the amendments that would become the one thousand nine hundred and sixty four amendments directed it to recommend revisions for the rendering of assistance to foreign courts and quasi judicial agencies both governmental as you noted surely a public policy change of this magnitude would have elicited at least some comment somewhere in the statute or the legislative history and yet there is none and finally just on an intel intel is completely consistent with the district  in intel the court held that the european commission was foreign or international tribunal for purposes of section seven hundred and eighty two when x is a st instance decision maker on competition law issues the case had nothing to do with private arbitration there was no dispute the european commission was and is a governmental body the court didn't make any reference to bear stearns or peterman let alone purport to overrule them and there is nothing in that opinion to suggest international and foreign and what's what's a tribunal why isn't the discretion of the us district court has officially answer to them to the potential for abuse well your honor st of all because the statute says what it says and this is a threshold requirement and so it should be enforced but nd of all look this case demonstrates the problem if you have district courts and are going to have to get involved in all of these international arbitrations that is going to inject uncertainty into the process look at parties sign up to an  n agreement it's with the expectation understanding that it's going to be streamlined efficient and limited and now you are opening up to this broad rd party discovery you know the last thing rolls royce wants in this case is for its customer boeing to now be wrapped up in this dispute and that's why it entered into an arbitration agreement so wouldn't have to deal with that and that's why many parties enter into international arbitration agreements and this interpretation opens it up every time you've got a party that wants to really what rolls royce and boeing are requiring as a basis for defining the authority of the court and that is that it is a concern that was answered directly by the supreme by the majority in intel and in response to a concern that was raised by justice breyer and his dissent and the court noted that and again the court went back again after the just the district court's authority is determined and the supreme court specifically said that there this is not a concern that the that it relied on the district courts that in in as much a concern i hear most of what i hear from counsel and what was it what was written in the brief is an argument that tribute tribunal doesn't mean arbitration and you know they're they they were able your fighting has expired you will have to wrap up ok well thank you your honor and i will wrap up it seems to me that the distinction between a government related arbitration and a private