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Solving the (section) 1782 puzzle: bringing certainty to the debate over 28 U.S.C. (section) 1782's application to international arbitration.

Much attention has been devoted during the past several years to whether 28 U.S.C. [section] 1782--a statute authorizing US. federal courts to compel discovery in connection with foreign proceedings--applies to foreign arbitral proceedings. Following the U.X Supreme Court's broad interpretation of 28 U.S C. [section] 1782 in 2004 in Intel v. Advanced Micro Devices, Inc., the extension of[section] 1782 's scope to foreign arbitral proceedings has become one of the most hotly debated topics in the field of private international law, with scholars predicting a surge in requests for assistance under [section] 1782 and bemoaning the deleterious effects of importing American-style discovery into international arbitral proceedings. Paradoxically, however, relatively few requests for disclosure have been made under [section] 1782 in connection with foreign arbitral proceedings since the Supreme Court decided Intel, and courts confronted with such requests after Intel have reached different conclusions on whether, and how, [section] 1782 should be extended to foreign arbitral proceedings.

This article seeks to bring certainty to the debate by offering a normative theory for how courts should apply [section] 1782 in the future in connection with foreign arbitral proceedings. According to this theory, U.S. courts can provide assistance under [section] 1782 in connection with foreign arbitral proceedings, but only in light of: (1) the specific guidelines enumerated by the Supreme Court in Intel; (2) the Supreme Court's strong pro-arbitration stance; and (3) parties' arbitration agreements. These factors compel granting [section] 1782 requests only under limited circumstances, most importantly only if arbitrators' control over the taking of evidence is preserved and the integrity of the arbitral process is maintained. It follows from this normative theory that [section] 1782 should play an important but limited role in international arbitration--a role that gives meaningful and targeted assistance to the fact- finding of foreign arbitral tribunals rather than applying American-style discovery in an arena where such methods are neither productive nor welcome.
I.    INTRODUCTION

II.   THE HISTORY OF 28 U.S.C. [section] 1782

III.  INTERNATIONAL ARBITRATIONS HISTORICALLY HAVE BEEN OUTSIDE OF
      THE SCOPE OF [section] 1782
      A. National Broadcasting Company v. Bear Stearns & Company
      B. Republic of Kazakhstan v. Biedermann International

IV.   THE SUPREME COURT IN INTEL CORP. V. ADVANCED MICRO DEVICES, INC.
      INTERPRETED [section] 1782 BROADLY, CALLING INTO QUESTION PRIOR
      INTERPRETATIONS OF IT
      A. The Supreme Court Interpreted [section] 1782 Liberally
      B. The Supreme Court Provided Guidelines for Exercising
         Discretion
         Under [section] 1782

V.    POST-INTEL DECISIONS ON THE APPLICABILITY OF [section] 1782 TO
      FOREIGN ARBITRAL PROCEEDINGS
      A. In re Oxus Gold PLC
      B. In re Roz Trading Ltd
      C. In re Hallmark Capital Corp
      D. In re Application of Babcock Borsig AG
      E. La Comision Ejecutiva Hidroelecctrica Del Rio Lempa v. El
         Paso Corp
      F. In re Norfolk Southern Corp
      G. In re Operadora DB Mexico, S.A. DE C.V
      H. OJSC Ukrnafta v. Carpatsky Petroleum Corp
      I. In re Winning (HK) Shipping Co. Ltd
      J. In re Chevron
      K. In re Caratube International Oil
      L. Chevron v. Charles Camp
      M. Other Pending Chevron Actions
      N. Summary of Case Law

VI.   REACTIONS TO POST-INTEL DECISIONS REGARDING THE SCOPE OF
      [section] 1782 TO FOREIGN ARBITRAL PROCEEDINGS
      A. Concerns Regarding the Costs and Efficiency of Foreign
         Arbitral Proceedings
      B. Concerns Regarding the Asymmetrical Effect of [section] 1782
      C. Concerns Regarding the Unsettled Nature of [section] 1782
         Case Law

VII.  A NORMATIVE THEORY FOR HOW [section] 1782 SHOULD BE APPLIED IN
      CONNECTION WITH FOREIGN ARBITRAL PROCEEDINGS
      A. Courts Considering [section] 1782 Discovery Requests Must
         Follow the
         Guidelines Set Forth in Intel
         1. Arbitral Receptivity
         2. Party to the Foreign Proceedings
         3. The "Nature and Character" of the Tribunal
         4. Unduly Intrusive or Burdensome Request
         5. Circumventing Foreign Proof-Gathering
      B. Courts Considering [section] 1782 Discovery Requests Must
         Follow the
         Supreme Court's Precedent In Favor of Arbitration
      C. Courts Considering [section] 1782 Discovery Requests Must
         Take Into Account
         the Parties' Arbitration Agreements
      D. Summary of How [section] 1782 Should Be Applied In Connection
         With Foreign Arbitral Proceedings

VIII. AN EXPLANATION OF THE SPARING USE OF [section] 1782 IN FOREIGN
      ARBITRAL PROCEEDINGS

IX.CONCLUSION


I. INTRODUCTION

Four years ago, two United States federal courts broke new ground by ordering discovery pursuant to 28 U.S.C. [section] 1782 in connection with foreign arbitral proceedings. (1) Previously, this statute was not thought to apply to proceedings before foreign arbitral tribunals. (2) In the four years following this purported extension of [section] 1782's scope, much ink has been spilled on this topic, with commentators offering predictions about the deleterious effects of importing American-style discovery into international arbitral proceedings. (3) One might have concluded that a Pandora's box had been opened and a new era of activist involvement by U.S. courts in foreign arbitral proceedings had begun. Paradoxically, however, this has not happened. To the contrary, over the past few years, relatively few requests for disclosure have been made under [section] 1782 in connection with foreign arbitral proceedings, even fewer U.S. courts have addressed this issue, and several that

have done so have called into question [section] 1782's extension to foreign arbitral proceedings. This article explains this apparent paradox regarding the initial excitement about [section] 1782's purported extension and the reality of its relatively infrequent use. It then offers a normative theory for how courts should apply [section] 1782 in the future in connection with proceedings before foreign arbitral tribunals, concluding that [section] 1782 should play a limited--albeit important--role in connection with proceedings of this sort.

The normative theory presented in this article is a theory that, we contend, many lawyers already tacitly accept and that partially explains why [section] 1782 has not been used more in connection with international arbitrations. According to this theory, courts considering disclosure requests under [section] 1782 in connection with foreign arbitral proceedings must consider them in light of: (1) the specific guidelines enumerated by the Supreme Court in Intel v. Advanced Micro Devices, Inc., (4) (2) the Supreme Court's strong pro-arbitration stance, (5) and (3) parties' arbitration agreements.6 When these factors are taken into account, it becomes clear that requests for discovery pursuant to [section] 1782 in connection with foreign arbitral proceedings should only be granted in limited circumstances (e.g., when a foreign arbitral tribunal first approves of the assistance and the request is narrowly tailored in scope).

When [section] 1782 is applied in light of these factors, American-style discovery should not become the order of the day in international arbitral proceedings, and commentators' fears about [section] 1782--especially about harm to U.S. parties- -are misplaced. This conclusion is buttressed by several other factors limiting parties' requests for disclosure under [section] 1782, including: (1) parties' fear of upsetting arbitral tribunals by requesting discovery from U.S. courts under [section] 1782; (2) provisions in some parties' arbitration agreements that impair their ability to request judicial assistance pursuant to [section] 1782, such as the designation of certain institutional rules to govern an arbitration; and (3) the current lack of consensus among U.S. district courts, and the potential for a future circuit split, regarding the applicability of [section] 1782 to foreign arbitral proceedings.

This Article is divided into six sections. First, we provide an overview of the history of [section] 1782 (Part II). We then explain why, until recently, the consensus opinion in the United States was that foreign arbitral proceedings were outside of the scope of [section] 1782 (Part III). Next, we discuss the U.S. Supreme Court's seminal opinion in Intel, which--although it did not expressly discuss the extension of [section] 1782 to foreign arbitral proceedings--interpreted [section] 1782 broadly and called into question prior narrow interpretations of it (Part IV). After discussing Intel, we examine post-Intel U.S. federal court opinions--In re Roz Trading, (7) In Re Oxus Gold, (8) In re Hallmark Capital Corp., (9) In re Babcock Borsig AG, (10) La Comision Ejecutiva Hidroelecctrica Del Rio Lempa v. El Paso Corp. (both in Texas and Delaware), (11) In re Norfolk Southern Corp., (12) In re Operadora, (13) OJSC Urknafta, (14) In re Application of Winning, (15) In re Application of Chevron, (16) In re Application of Caratube, (17) Chevron Corp. v. Charles Camp, (18) and several other Chevron- related decisions (19) that address whether [section] 1782 should be extended to foreign arbitral proceedings (Part V). We then provide a normative theory of how [section] 1782 should be interpreted in the future in connection with foreign arbitral proceedings (Part VI) and explain why, in light of this theory, [section] 1782 has been used relatively sparingly in recent years in connection with foreign arbitral proceedings (Part VII). Finally, we conclude by offering practical advice regarding [section] 1782's application in connection with foreign arbitral proceedings, both to courts considering discovery requests made pursuant to it and to parties and their counsel in international arbitrations where such disclosure requests have been, or may be, made.

II. THE HISTORY OF 28 U.S.C. [section] 1782 For over 150 years, U.S. federal courts have had the authority to order discovery in connection with foreign proceedings. (20) The first federal statute giving courts this authority was the "Act of March 2, 1855" (the "1855 Act"), which empowered federal courts to assist foreign tribunals and litigants, pursuant to letters rogatory, to obtain evidence in the United States. (21) The 1855 Act provided:
   [W]here letters rogatory shall have be [sic] addressed, from any
   court of a foreign country to any circuit court of the United
   States, and a United States commissioner designated by said circuit
   court to make the examination of witnesses in said letters
   mentioned, said commissioner shall be empowered to compel the
   witnesses to appear and depose in the same manner as to appear and
   testify in court. (22)


Due to indexing errors, the 1855 Act was "buried in oblivion," (23) and Congress enacted "a more restrictive act governing the execution of letter[s] rogatory in the United States" in 1863. (24)

The "Act of March 3, 1863" ( "1863 Act") narrowed the scope contemplated by the 1855 Act by restricting a commissioner's ability to, and manner of, compelling testimony and the disclosure of evidence. (25) The language of the 1863 Act limited the scope of the 1855 Act in four distinct ways. (26) First, under the 1863 Act, the foreign proceedings must involve the "recovery of money or property." (27) Second, the foreign proceedings must take place "in any court in any foreign country with which the United States are at peace." (28) Third, the proceedings must be those "which the government of such foreign country shall be a party or shall have an interest.... " (29) Finally, the letter rogatory must have been dispatched "from the court in which said suit is pending." (30) Accordingly, the 1863 Act significantly restricted the situations in which a commissioner could provide judicial assistance in a foreign proceeding and effectively prevented any assistance in private commercial cases where the state itself was not a party. Even though the 1855 Act was still good law, courts chose instead to apply the more restrictive 1863 Act, disregarding the 1855 Act and its more liberal, less restrictive, approach to federal judicial assistance in compelling disclosure to foreign courts. (31) As a result, "judicial assistance was more readily available in U.S. state courts than in federal courts." (32)

In 1948--seventy-five years after Congress passed the 1863 Act--it amended the 1863 Act, and the amended version was codified as 28 U.S.C. [section] 1782, thus giving birth to the modern-day codification.33 The initial form of the 1948 amendment provided:
   The deposition of any witness residing within the United States to
   be used in any civil action pending in any court in a foreign
   country with which the United States is at peace may be taken
   before a person authorized to administer oaths designated by the
   district court of any district where the witness resides or may be
   found. The practice and procedure in taking such depositions shall
   conform generally to the practice and procedure for taking
   depositions to be used in courts of the United States. (34)


With this language, [section] 1782 significantly eased the restrictions for obtaining judicial assistance from federal courts in support of a foreign proceeding. The 1948 version of [section] 1782 also eased these restrictions by eliminating the requirement found in the 1863 Act that a foreign country requesting assistance must be a party to, or have an interest in, the judicial proceedings. (35)

In 1949, Congress amended [section] 1782 by eliminating the word "residing" and by replacing the term "civil action" with "judicial proceeding." (36) This 1949 amendment made it even easier to obtain judicial assistance from federal courts in connection with foreign judicial proceedings. (37) The text of the 1949 version of [section] 1782 provided, in relevant part:
   The deposition of any witness within the United States to be used
   in any judicial proceedings pending in any court in a foreign
   country with which the United States is at peace may be taken
   before a person authorized to administer oaths designated by the
   district court of any district where the witness resides or may be
   found. The practice and procedure in taking such depositions shall
   conform generally to the practice and procedure for taking
   depositions to be used in courts of the United States. (38)


In the years following the 1948 and 1949 amendments, Congress publically recognized the pressing need for the United States to modernize the procedures available for judicial assistance in connection with foreign legal proceedings. (39) This recognition came hand-in-hand with the significant increases in international commerce, trade, and finance that occurred in the 1950s, which foreshadowed similar increases in foreign litigation between U.S. parties and their foreign counterparts. (40) In light of these macroeconomic developments, Congress created in 1958 the Commission on International Rules of Judicial Procedure to "investigate and study present practices in judicial assistance and judicial cooperation between the United States and foreign countries, and to make recommendations for the improvement of international legal practice and methods of procedure." (41)

In 1964, following the Commission's proposal for changes to domestic U.S. civil procedure rules in light of international proceedings, Congress amended [section] 1782(a) to "clarif[y] and liberaliz[e] existing U.S. procedures for assisting foreign and international tribunals and litigants in obtaining oral and documentary evidence in the United States." (42) Explaining its reasons for amending [section] 1782(a), Congress stated that its amendment of [section] 1782 was "a major step in bringing the United States to the forefront of nations adjusting their procedures to those of sister nations and thereby providing equitable and efficacious procedures for the benefit of tribunals and litigants involved in litigation with international aspects." (43)

As amended, the 1964 version of 28 U.S.C. [section] 1782--which is still in effect today, with only minor alterations (44)--states:

(a) The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. 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 tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure. A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.

(b) This chapter does not preclude a person within the United States from voluntarily giving his testimony or statement, or producing a document or other thing, for use in a proceeding in a foreign or international tribunal before any person and in any manner acceptable to him. (45)

This revised version of [section] 1782 contains several important innovations extending the powers of federal courts to offer assistance in connection with foreign proceedings. Among other changes, the revised version of [section] 1782:

* Expands the scope of [section] 1782 to cover proceedings "in a foreign or international tribunal," which is broader than the language found in the 1949 version that only covers proceedings "in any court in a foreign country;" (46)

* Empowers federal courts to order a party to "give his testimony or statement or to produce a document or other thing," instead of being limited solely to oral testimony and statements, thereby giving federal courts the ability to issue document disclosure orders in connection with foreign proceedings; (47)

* Eliminates the requirement that a federal court can only give assistance in connection with a "pending" proceeding; (48)

* Eliminates the need to obtain a letter rogatory before seeking judicial assistance (under the revised version of [section] 1782, federal courts can grant judicial assistance upon the request of a foreign tribunal or interested person, regardless of whether or not a letter rogatory has been sent); (49)

* Empowers federal courts with the discretion to grant or deny a properly made discovery request, depending on the court's analysis of the request; (50) and

* Eliminates a provision from the 1948 version stating that federal courts can only grant judicial assistance to countries with which the U.S. is at peace. (51)

Accordingly, the current version of 28 U.S.C. [section] 1782(a) permits a federal district court to compel a person to disclose documents, or to give testimony, for use in proceedings before a "foreign or international tribunal," which also includes "criminal investigations conducted before formal accusation." (52) This broad statutory approach to judicial assistance in connection with foreign proceedings appears to adhere to the 1964 goals of clarifying and liberalizing U.S. procedures in light of rapid advances in the global conduct of business and exchange.

III. INTERNATIONAL ARBITRATIONS HISTORICALLY HAVE BEEN OUTSIDE OF THE SCOPE OF [section] 1782

While 28 U.S.C. [section] 1782 has been a powerful tool for obtaining judicial assistance in connection with foreign court proceedings for the past four decades, it has not, until recently, been of much interest to international arbitration practitioners. This is because--prior to 2004--U.S. federal courts adopted the position that [section] 1782 did not apply to international commercial arbitrations, on the basis that a foreign arbitral tribunal is not a "foreign or international tribunal" for the purposes of [section] 1782. (53)

Although a number of federal district courts have considered (and rejected) the claim that foreign arbitral tribunals are covered by [section] 1782, only two federal circuit courts have considered this issue: the Second Circuit in National Broadcasting Co. v. Bear Stearns & Co., (54) and the Fifth Circuit in Republic of Kazakhstan v. Biedermann International. (55) Both of these courts--like lower courts before them--conclusively rejected the claim that [section] 1782 covers foreign arbitral tribunals. Accordingly, prior to the Supreme Court's decision in 2004 in Intel v. Advanced Micro Devices, Inc., (56) (discussed below in Part IV), the weight of authority in the United States was that [section] 1782 did not cover foreign arbitral tribunals. As a result, the consensus opinion in the United States was that U.S. federal courts could only provide judicial assistance to foreign arbitral tribunals under the limited conditions set forth in [section] 7 of the U.S. Federal Arbitration Act. (57)

A. National Broadcasting Company v. Bear Stearns & Company

The first federal appellate court to consider whether [section] 1782 applies to foreign arbitral tribunals was the Second Circuit in 1999 in the NBC case. The NBC case pertained to a request for judicial assistance by the claimants in an International Chamber of Commerce ("ICC") arbitration sited in Mexico and governed by Mexican law. (58) In 1994, NBC and Azteca (then a privately-held Mexican television station) entered into an agreement whereby NBC would provide programming and services to Azteca in exchange for, among other things, the fight to purchase up to 10% of Azteca's shares at any time before May 1997 pursuant to a set pricing formula. (59) In 1997, NBC attempted to purchase 1% of Azteca's shares pursuant to its contractual rights, but Azteca refused to sell them. (60) According to NBC, Azteca also improperly induced NBC to forgo buying 10% of Azteca's shares by falsely convincing NBC that it had no plans to conduct an initial public offering of its shares. (61) As a result of these allegations, NBC commenced arbitration against Azteca pursuant to the contractual arbitration clause agreed to previously by the parties.

Before the ICC appointed the arbitral tribunal to hear the dispute between NBC and Azteca, NBC applied ex parte under [section] 1782 to the U.S. District Court for the Southern District of New York for authorization to serve subpoenas on six third-party financial institutions that were allegedly working with Azteca on its initial public offering plans. (62) The court granted NBC's application, although another judge of the same court subsequently quashed the summonses on the ground that a foreign arbitral tribunal is not a "foreign or international tribunal" under [section] 1782. (63) NBC appealed the decision quashing the subpoenas, resulting in the Second Circuit addressing--for the first time--whether [section] 1782 covers private arbitral tribunals.

In an opinion authored by Judge Jos6 Cabranes, the Second Circuit in NBC began by stating that the language of [section] 1782 was ambiguous, and, as a result, the court must look to the legislative history of [section] 1782 to determine whether it was meant to cover proceedings before foreign arbitral tribunals. (64) The Second Circuit then held that "it is apparent in context that the authors of [the House and Senate committee reports regarding [section] 1782] had in mind only governmental entities, such as administrative or investigative courts, acting as state instrumentalities or with the authority of the state." (65) In support of this conclusion, the court noted, among other things, that the House and Senate committee reports regarding the 1964 revisions to [section] 1782, in explaining the word "tribunal," stated that, "'[f]or example, it is intended that the court have discretion to grant assistance when proceedings are pending before investigating magistrates in foreign countries.'" (66) The court likewise noted that Hans Smit, the director of a project at the Columbia University School of Law that supported the Commission on International Rules of Judicial Procedure, wrote an article in 1965 about the 1964 revisions to [section] 1782, in which he stated that "an international tribunal owes both its existence and its powers to an international agreement." (67) After considering the legislative history of [section] 1782 at length, the Second Circuit found that "there is no indication that Congress intended for the new provisions to reach private international tribunals ... [T]he legislative history reveals that when Congress in 1964 enacted the modern version of [section] 1782, it intended to cover governmental or intergovernmental arbitral tribunals and conventional courts and other state-sponsored adjudicatory bodies." (68)

In addition to basing its decision regarding the scope of [section] 1782 on its review of the statute's legislative history, the Second Circuit in NBC also noted that a finding that [section] 1782 covered foreign arbitral tribunals would undermine the strong U.S. federal policy in favor of arbitration. (69) According to the court, the popularity of arbitration "rests in considerable part on its asserted efficiency and cost- effectiveness-characteristics said to be at odds with full-scale litigation in the courts, and especially at odds with the broad-ranging discovery made possible by the Federal Rules of Civil Procedure." (70) On this basis, the court concluded that "[o]pening the door to the type of discovery sought by NBC in this case likely would undermine one of the significant advantages of arbitration, and thus arguably conflict with the strong federal policy favoring arbitration as an alternative means of dispute resolution." (71)

B. Republic of Kazakhstan v. Biedermann International

Less than two months after the Second Circuit decided NBC, the Fifth Circuit also held that [section] 1782 does not apply to private arbitral tribunals. In Biedermann, the Republic of Kazakhstan requested the U.S. District Court for the Southern District of Texas to order an individual named Murdock Baker, Jr. to submit to a deposition and produce documents in connection with a Stockholm Chamber of Commerce ("SCC") arbitration between the Republic of Kazakhstan and Biedermann International, Inc. (72) Mr. Baker was not a party to the arbitration--rather, like the financial institutions in NBC, he was a third party from whom the claimants in the arbitration sought information.

In an opinion authored by Judge Edith Jones, the Fifth Circuit in Biedermann followed the same methodological approach used by the Second Circuit in NBC. First, the Fifth Circuit examined the legislative history of [section] 1782, concluding:
   Neither the report of the Commission that recommended what became
   the 1964 version of [section] 1782 nor contemporaneous reports of
   the Commission's director ever specifically goes beyond these types
   of proceedings to discuss private commercial arbitrations. There is
   no contemporaneous evidence that Congress contemplated extending
   [section] 1782 to the then-novel arena of international commercial
   arbitration. References in the United States Code to 'arbitral
   tribunals' almost uniformly concern an adjunct of a foreign
   government or international agency. (73)


After discussing the legislative history of [section] 1782, the Fifth Circuit in Biedermann discussed the ramifications of extending [section] 1782 to private arbitral tribunals. (74) Like the Second Circuit in NBC, the Fifth Circuit concluded that there could be grave consequences for international commercial arbitration if [section] 1782 covered private arbitral tribunals. (75) In the words of the court:
   Empowering arbitrators or, worse, the parties, in private
   international disputes to seek ancillary discovery through the
   federal courts does not benefit the arbitration process.
   Arbitration is intended as a speedy, economical, and effective
   means of dispute resolution. The course of the litigation before us
   suggests that arbitration's principal advantages may be destroyed
   if the parties succumb to fighting over burdensome discovery
   requests far from the place of arbitration. (76)


Accordingly, the Fifth Circuit, following the lead of the Second Circuit in NBC, concluded: "[T]he term 'foreign and international tribunals' in [section] 1782 was not intended to authorize resort to United States federal courts to assist discovery in private international arbitrations. The provision was enlarged to further comity among nations, not to complicate and undermine the salutary device of private international arbitration." (77)

Following the Second and Fifth Circuits' opinions on the scope of [section] 1782 in 1999, no other circuit courts have addressed this issue in a binding decision, and those lower courts that have addressed the issue have followed the precedent set forth in NBC and Biedermann--that is, until the Supreme Court issued its decision in Intel (discussed below in Part IV). Accordingly, prior to the Intel decision in 2004, the consensus view in the United States was that [section] 1782 did not apply to private arbitral tribunals. As such, before 2004, international arbitration practitioners generally had no reason to pay attention to [section] 1782.

IV. THE SUPREME COURT IN INTEL CORP. K ADVANCED MICRO DEVICES, INC. INTERPRETED [section] 1782 BROADLY, CALLING INTO QUESTION PRIOR INTERPRETATIONS OF IT

In the summer of 2004, the U.S. Supreme Court considered for the first time in detail the scope and limitations of [section] 1782 in the Intel case. (78) Its decision--which held that the scope of [section] 1782 is broad--has called into question decisions such as NBC and Biedermann that preceded it.

The Intel case arose out of a European antitrust dispute between Advanced Micro Devices Inc. ("AMD") and Intel. AMD and Intel are global competitors in the microprocessor industry. In October 2000, AMD filed an antitrust complaint against Intel with the Directorate-General for Competition ("DG-Competition") of the Commission of the European Communities, alleging that "Intel, in violation of European competition law, had abused its dominant position in the European market through loyalty rebates, exclusive purchasing agreements with manufacturers and retailers, price discrimination, and standard-setting cartels." (79) AMD subsequently suggested that the DG-Competition request the disclosure of documents that Intel had produced in a private antitrust suit in the United States called Intergraph Corp. v. Intel Corp. (80)

When the DG-Competition elected not to seek disclosure of the Intergraph documents, AMD petitioned the U.S. District Court for the Northern District of California under [section] 1782 for an order compelling Intel to disclose the documents it had produced in the Intergraph litigation. (81) The district court refused AMD's application. (82) Subsequently, the U.S. Court of Appeals for the Ninth Circuit reversed the district court's decision and remanded the case to the district court for further proceedings. (83) On remand, shortly after a federal magistrate judge found AMD's requests overbroad, the district court stayed all further proceedings pending the outcome of Intel's petition of certiorari to the U.S. Supreme Court. (84)

A. The Supreme Court Interpreted [section] 1782 Liberally

In an opinion authored by Justice Ruth Bader Ginsburg, the U.S. Supreme Court in Intel interpreted [section] 1782 liberally, holding that its scope was significantly broader than prior courts had concluded. (85) In its opinion, the Supreme Court stated that it would place no "categorical limitations" on the availability of judicial assistance under [section] 1782 but would leave the decision to grant assistance within the discretion of district courts. (86)

One of the issues addressed by the Supreme Court in Intel was whether the assistance requested by AMD was "for use in a foreign or international tribunal." In answering this question, the Supreme Court first noted that the 1964 version of [section] 1782 replaced the term "any judicial proceeding" with "a proceeding in a foreign or international tribunal." (87) The Court then cited the Senate Report on the 1964 amendment to [section] 1782, which stated that Congress adopted the 1964 amendment "to provide the possibility of U.S. judicial assistance in connection with [administrative and quasi-judicial proceedings abroad]." (88) The Court also cited Han Smit's 1965 article (mentioned above), which stated that "[t]he term 'tribunal' ... includes investigating magistrates, administrative and arbitral tribunals, and quasi- judicial agencies, as well as conventional civil, commercial, criminal, and administrative courts." (89) The Court then concluded that "[w]e have no warrant to exclude the European Commission, to the extent that it acts a first-instance decisionmaker, from [section] 1782(a)'s ambit." (90)

The Supreme Court in Intel also addressed a number of other issues regarding [section] 1782's scope, consistently ruling in favor of a broad interpretation of [section] 1782. Among other things, the Court held that:

* AMD was an "interested person" authorized to apply for judicial assistance under [section] 1782; * [section] 1782 is not limited to "pending" adjudicative proceedings, but instead comes into play whenever a dispositive ruling is "within reasonable contemplation;" (91)

* [section] 1782 does not contain a foreign discoverability rule, meaning that it does not bar a U.S. federal district court from compelling disclosure when the foreign tribunal or interested person would be unable to obtain the requested documents if they were located in the foreign jurisdiction; (92) and

* An applicant for judicial assistance under [section] 1782 need not show that U.S. law would allow discovery in domestic litigation analogous to that sought in the foreign proceeding. (93)

All of these conclusions demonstrate the Supreme Court's desire to interpret the scope of [section] 1782 broadly.

B. The Supreme Court Provided Guidelines for Exercising Discretion Under [section] 1782

At the end of its opinion in Intel, the Supreme Court emphasized that a district court "is not required to grant a [section] 1782(a) discovery application simply because it has the authority to do so." (94) The Court then enumerated several factors that a federal district court should consider when deciding whether to exercise its discretion under [section] 1782 to order disclosure in support of a foreign proceeding. (95) These factors include:

* Whether the person from whom discovery is sought is a participant in the foreign proceeding (if so, "the need for [section] 1782(a) aid generally is not as apparent as it ordinarily is when evidence is sought from a nonparticipant in the matter arising abroad" because "[a] foreign tribunal has jurisdiction over those appearing before it, and can itself order them to produce evidence"); (96)

* The "nature of the foreign tribunal" and "the character of the proceedings underway abroad;" (97)

* Whether the foreign government or the court or agency abroad is receptive to requests for judicial assistance from U.S. federal courts; (98)

* Whether the request for judicial assistance under [section] 1782 seeks to "circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States;" (99) and

* Whether the requested disclosure is "unduly intrusive or burdensome," in which case the disclosure request may be "rejected or trimmed." (100)

After listing these factors, the Supreme Court affirmed the decision of the Ninth Circuit in Intel and remanded the case to the district court to determine whether it should exercise its discretion under [section] 1782. Accordingly, the Court in Intel adopted a liberal interpretation of the term "tribunal" as it pertains to [section] 1782 and provided district courts with guidelines to follow when considering [section] 1782 applications.

V. POST-INTEL DECISIONS ON THE APPLICABILITY OF [section] 1782 TO FOREIGN ARBITRAL PROCEEDINGS

Following the Supreme Court's decision in Intel, numerous commentators suggested that federal district courts in the United States likely would re- visit whether [section] 1782 should be extended to disclosure requests made in connection with foreign arbitral proceedings. (101) In late 2006, the first district court to consider this issue extended [section] 1782 to cover a discovery request made in connection with a foreign arbitral proceeding (In re Oxus Gold). (102) In 2007, two more courts held that the scope of [section] 1782 encompassed foreign arbitral proceedings (In re Roz Trading and In re Hallmark Capital Corp.). (103) In late 2008, another court held that [section] 1782 applied to foreign arbitral proceedings (In re Babcock Borsig AG). (104) Thus, by late 2008, it appeared that a trend was developing for federal courts to interpret [section] 1782 broadly and extend its reach to discovery requests made in connection with foreign arbitral proceedings. However, shortly after this trend appeared to emerge, another district court concluded the exact opposite, holding that foreign arbitral proceedings are not within the scope of [section] 1782 (El Paso I). (105) Following this late-2008 decision, other courts similarly have found that foreign arbitral proceedings do not fall within the scope of [section] 1782 (e.g., In re Norfolk Southern Corp. and In re Operadora). (106) Below, we discuss these post-Intel decisions on the applicability of [section] 1782 to foreign arbitral proceedings.

A. In re Oxus Gold PLC.

In In re Oxus Gold, (107) the U.S. District Court for the District of New Jersey became the first post-Intel court to examine whether [section] 1782 should be extended to requests for discovery in connection with foreign arbitral proceedings.

In re Oxus Gold pertained to subpoenas requested by Oxus Gold, an international mining group based in the United Kingdom. In 1999, a subsidiary of Oxus and the State Enterprise Kyrgyzaltyn Joint Stock Company created a company called the Talas Gold Mining Company, so as to exploit the Jerooy gold deposit in the Kyrgyz Republic. (108) In 2004, the Kyrgyz State Agency on Geology and Mineral Resources cancelled Talas's license to use the Jerooy subsoil, allegedly because Talas had failed to meet its obligations. (109)

In response to the cancellation of its license, Talas initiated several court proceedings in Kyrgyzstan in order to challenge the validity of the revocation. (110) Oxus also initiated arbitration under the bilateral investment treaty between the United Kingdom and the Republic of Kyrgyzstan, pursuant to the United Nations Commission on International Trade Law ("UNCITRAL") Rules. (111)

In August 2006, Oxus filed an ex parte request under [section] 1782 for discovery from a company called SIG Overseas Limited and its managing director. (112) The request asked for discovery for use in the court proceedings in Kyrgyzstan and in the international arbitration proceeding. (113) Three days after Oxus filed its request, the U.S. District Court for the District of New Jersey granted it. (114) After being served abroad, the managing director of SIG Overseas Limited contended that the subpoena was improperly issued by the district court because, among other things, an international arbitration proceeding does not satisfy the "foreign or international tribunal" requirement of [section] 1782. (115)

The district court rejected the contention that a foreign arbitral proceeding pursuant to the UNCITRAL Rules did not satisfy the "tribunal" requirement of [section] 1782. (116) In support of its holding, the court first cited the Intel decision, quoting the Supreme Court's language in Intel that "Congress introduced the word 'tribunal' to ensure that 'assistance is not confined to proceedings before conventional courts,' but extends also to 'administrative and quasi-judicial proceedings.'" (117) The district court then discussed the NBC decision, noting that it applied to foreign arbitral tribunals rather than to tribunals constituted pursuant to bilateral investment treaties between sovereign nations. (118) Based partially on a flawed understanding of the UNCITRAL Rules, the court concluded:
   The international arbitration at issue is being conducted by the
   United Nations Commission on International Law, a body operating
   under the United Nations and established by its member states. The
   arbitration is not the result of a contract or agreement between
   private parties as in [NBC]. The proceedings in issue has [sic]
   been authorized by the sovereign states of the United Kingdom and
   the Kyrgyzstan Republic for the purpose of adjudicating disputes
   under the Bilateral Investment Treaty (citation omitted).
   Therefore, it appears to the Court as if the international
   arbitration proceeding in the present case is included as a
   'foreign or international tribunal' in Section 1782. (119)


Accordingly, the court in In re Oxus Gold, relying on Intel, held that [section] 1782 applied to a proceeding before an international arbitral tribunal constituted pursuant to a bilateral investment treaty. However, it did not answer the question of whether [section] 1782 covers "private" foreign arbitral proceedings. This question remained unaddressed post-Intel until the U.S. District Court for the Northern District of Georgia's decision in In re Roz Trading.

B. In re Roz Trading Ltd.

At the end of 2006, the U.S. District Court for the Northern District of Georgia decided In re Roz Trading., (120) thus becoming the first post-Intel court to address whether [section] 1782 covers "private" foreign arbitral tribunals.

In In re Roz Trading, Roz Trading Ltd. ("Roz") petitioned the district court to compel the Coca-Cola Company under [section] 1782 to produce certain documents to it. (121) Roz was, at the time of its petition, a party to an arbitration before the International Arbitral Centre of the Austrian Federal Economic Chamber in Vienna ("VIAC") against a subsidiary of the Coca-Cola Company called the Coca-Cola Export Company ("CCEC"). (122) Previously, Roz, CCEC, and the government of Uzbekistan had entered into a joint venture agreement. (123) According to Roz, the government of Uzbekistan violently seized Roz's interest in the joint venture, causing Roz's employees to flee the country in fear for their lives. (124) Roz alleged that this action by the government of Uzbekistan was motivated, at least in part, by the divorce of Roz's president from the daughter of the President of Uzbekistan. (125) According to Roz, when its employees fled Uzbekistan, they were unable to take any corporate documents with them, and they had subsequently been unable to retrieve any of the documents from the Government of Uzbekistan. (126) Roz petitioned the district court under [section] 1782 to compel the production of these documents, some of which it claimed were in the possession of CCEC (Roz alleged that CCEC had helped the Uzbek government eliminate Roz from the joint venture). (127)

In its opinion, the district court began by stating that it could only grant Roz's request if it had the authority to do so under [section] 1782 and the factors listed in Intel militated in favor of granting the request. (128) Regarding the first issue--whether the district court had the authority to grant Roz's request--the court discussed in detail whether, after the Intel decision, a "private" foreign arbitral tribunal falls within the meaning of the term "tribunal" as used in [section] 1782, noting that "[t]his issue is both interesting and one of first impression in this Circuit." (129) The court concluded that it does, for several reasons, including:

* A finding that [section] 1782 covers "private" arbitral tribunals is consistent with the Supreme Court's opinion in Intel, which "quoted approvingly language that included 'arbitral tribunals' within the term's meaning in [section] 1782(a);" (130)

* In Intel, the Supreme Court stated that the DG-Competition is a tribunal when it acts as a first-instance decision maker, and the VIAC is, according to the court, also a first-instance decision maker; (131)

* The "common usage" and "widely accepted definition" of "tribunal" includes "private" arbitral tribunals; (132)

* The history of the amendments to [section] 1782 shows that Congress expressly deleted language that "previously restricted the type of adjudicatory body for which [section] 1782 could be invoked" (i.e., Congress deleted the phrase "judicial proceeding"); (133)

* Contrary to what the court in NBC held, the language of [section] 1782 is unambiguous and clearly applies to "tribunals" as the term is widely defined, including arbitral tribunals; (134) and

* [section] 1782 is not limited to governmental tribunals (if Congress wanted this scope restriction, it would have included the word "governmental" before the word "tribunal"). (135)

After holding that "[t]he Supreme Court's decision in Intel undermines the reasoning of [NBC]," the district court "decline[d] to follow the Second and Fifth Circuits because, in light of Intel, they are not persuasive authority." (136)

After concluding that [section] 1782 covers such foreign arbitral tribunals, the district court in In re Roz Trading Ltd. turned to the question of whether the factors set forth in Intel militate in favor of Roz's petition. The court concluded that they do, noting:

* The Coca-Cola Company is not a participant in the foreign proceedings (rather, only its subsidiary CCEC is a participant in the foreign proceeding);

* The VIAC is receptive to the aid of the court and must rely on courts outside of its jurisdiction to enforce its demands; and

* Many of the documents requested by Roz were seized by the Uzbek government and are now solely held by the Respondent, meaning that the "Respondent may be the only source for at least some of the documents requested." (137)

Accordingly, the district court granted Roz's petition, although it limited the time period for discovery to what it considered to be a reasonable period of time and limited the disclosure of documents concerning private third parties. (138)

C. In re Hallmark Capital Corp.

On June 1, 2007, several months after the decision in In re Roz Trading Ltd., U.S. Magistrate Judge Susan Nelson issued an ex parte order pursuant to [section] 1782 in In re Hallmark Capital Corp., (139) permitting discovery for use in a foreign arbitral proceeding. Subsequently, Michael Berman, the individual who was compelled to provide the discovery, filed a motion for reconsideration, arguing that [section] 1782 does not extend to foreign arbitral tribunals. On September 13, 2007, Judge Nelson issued a written order denying Mr. Berman's motion for reconsideration. (140) Judge Nelson's rulings echo those of the U.S. District Court for the Northern District of Georgia in In re Roz Trading Ltd.

Judge Nelson's orders relate to a request by Hallmark Capital Corporation for the court to issue an ex parte order pursuant to [section] 1782 compelling discovery from Mr. Berman for use in an arbitration in Israel. At the time of its request, Hallmark Capital was the claimant in an arbitration against a company called UltraShape, Inc. Mr. Berman was the Chairman of the Board of UltraShape and was not a party to the Israeli arbitral proceedings.

In her June 1, 2007 order, Judge Nelson ordered Mr. Berman to provide documents in his possession, custody and control to Hallmark for use in the Israeli arbitral proceedings. In her September 13, 2007 order, Judge Nelson reaffirmed her original decision and, in addition, expressly held that [section] 1782 applies to foreign arbitral tribunals. In so finding, Judge Nelson relied heavily on Intel and cited In re Roz Trading Ltd. for the proposition that "[h]ad Congress wanted to impose the limitation advanced by [the party opposing the extension of [section] 1782 to private arbitration bodies], it would have been a simple matter to add the word 'governmental' before the word 'tribunal' in the 1964 amendment." (141) Explaining her decision, Judge Nelson wrote:
   Although the Supreme Court did not squarely hold that foreign
   private arbitration bodies qualify as a "tribunal" under Section
   1782 and did not expressly overrule or otherwise disapprove of the
   rulings in NBC and Biedermann Int'l, any lack of a clear holding
   from the Supreme Court on this issue is of little moment because
   the Court's general approach to Section 1782, as well as that
   statute's legislative history, makes clear that the statute is best
   read not to impose any restrictive definitional exclusions that
   would necessarily preclude assistance to all private arbitral
   bodies. In Intel Corp., the Court ruled expansively with respect to
   each of the three issues on which it had granted review.... This
   expansive approach suggests that the Court would not restrict the
   scope of "tribunal" to necessarily preclude assistance for use in
   private arbitrations. (142)


Judge Nelson also addressed in her order some of the concerns that have been raised regarding the use of [section] 1782 in connection with foreign arbitral proceedings, noting that [section] 1782 is discretionary and does not require a district court to grant any discovery requests made pursuant to it, especially those that seek "excessive or burdensome discovery that would undermine the otherwise streamlined procedures of arbitration compared to litigation." (143) Likewise, she noted that arbitral bodies can condition their acceptance of evidence in an arbitration as they see fit, including by refusing to allow evidence to be introduced or admitted. (144)

After ruling that [section] 1782 can be extended to cover foreign arbitral proceedings, Judge Nelson held that the discovery sought by Hallmark Capital from Mr. Berman was not unduly broad or burdensome. (145) Accordingly, like the courts in In re Roz Trading Ltd. and In re Oxus Gold, she granted Hallmark Capital's request. (146)

D. In re Application of Babcock Borsig AG

Between June 2007 and the end of 2008, no federal court issued a decision on whether [section] 1782 applies to foreign arbitral tribunals. On October 30, 2008, the United States District Court for the District of Massachusetts broke this silence, holding in In re Babcock Borsig AG that [section] 1782 does apply to foreign arbitral tribunals but that discovery should only be permitted under [section] 1782 if the foreign arbitral tribunal is receptive to the U.S. court's assistance. (147)

In In re Babcock Borsig AG, the petitioner, a German company, requested assistance from a U.S. court in obtaining discovery from a Japanese company, Hitachi, for use in a "potential arbitration" that, if filed, would proceed under the rules of the ICC. (148) At the time that Babcock filed its application, no arbitration had been commenced between it and Hitachi and no arbitral tribunal had been constituted.

With respect to whether [section] 1782 applies to foreign arbitral tribunals, the court in In re Babcock Borsig AG found--as the courts did in In re Roz Trading Ltd., In re Oxus Gold, and In re Hallmark Capital Corp.--that [section] 1782 does so apply. (149) To reach this holding, the court examined the Supreme Court's holding in Intel, quoted from Hans Smit's article that the Supreme Court cited in Intel, and considered the courts' decisions in In re Roz Trading Ltd. and In re Hallmark Capital Corp. (150) In concluding that an ICC tribunal is a foreign arbitral tribunal under [section] 1782, the court stated that "[t]here is no textual basis upon which to draw a distinction between public and private arbitral tribunals, and the Supreme Court in Intel repeatedly refused to place 'categorical limitations' on the availability of [section] 1782(a)." (151)

After finding that [section] 1782 applies to foreign arbitral tribunals, the court in In re Babcock Borsig AG turned to the issue of whether it should assist Babcock Borsig in obtaining discovery from Hitachi. The court answered this question in the negative, holding that judicial assistance under [section] 1782 in connection with foreign arbitral proceedings is only appropriate if the foreign arbitral tribunal first approves of the judicial assistance. (152) According to the court, "[i]n a situation where the foreign tribunal restricts discovery, granting the application could undermine the statute's objective [to assist foreign tribunals in obtaining useful information]." (153) The court further stated that it "may be irresponsible" to order discovery where there is "reliable evidence that the foreign tribunal would not make any use of the requested material." (154) In conclusion, the court denied Babcock Borsig's request for judicial assistance under [section] 1782, stating that judicial assistance under [section] 1782 would not be appropriate "until if and when the ICC provides some affirmative indication of its receptivity to the requested materials." (155)

E. La Comision Ejecutiva Hidroelecctrica Del Rio Lempa v. El Paso Corp.

Following the court's decision in In re Babcock Borsig AG, it appeared that a consensus was emerging amongst federal district courts regarding the use of [section] 1782 in connection with foreign arbitral proceedings. This consensus opinion seemed to be that, in light of the Supreme Court's decision in Intel, [section] 1782 applies to foreign arbitral proceedings but should be used sparingly and only if certain conditions are met. Less than a month after In re Babcock Borsig AG was issued, however, this apparent consensus was thrown into doubt when another federal district court ruled that [section] 1782 does not apply to foreign arbitral proceedings.

In La Comision Ejecutiva Hidroelecctrica Del Rio Lempa v. El Paso Corp., the U.S. District Court for the Southern District of Texas was confronted with a request for assistance under [section] 1782 in connection with a foreign arbitral proceeding. (156) La Comision Ejecutiva Hidroelecctrica del Rio Lempa ("CEL") is an El Salvadoran state-owned hydroelectric power operator. (157) In 1994, after El Salvador authorized private power plants to operate, CEL awarded a contract to Nejapa Power Co. ("NPC"), and the two entered into a "Power Purchase Agreement" in 1995. (158) A dispute arose thereafter, resulting in CEL filing an arbitration proceeding against NPC regarding the termination of the Purchase Power Agreement. (159) CEL and NPC eventually settled this arbitration via an arbitral consent award (160) and the parties entered into a "Transmission Cost Agreement." (161) The parties arbitrated a second dispute, which was initiated by NPC and which resulted in an award in favor of NPC. (162) According to CEL, in July 2007, NPC told it that NPC was filing a third arbitration arising out of CEL's purported refusal to undertake certain contractual obligations owed to NPC pursuant to the Transmission Cost Agreement, which would be sited in Geneva, Switzerland and conducted pursuant to the UNCITRAL Rules. (163)

On July 3, 2008, CEL filed an application for an expedited order in the U.S. District Court for the Southern District of Texas allowing CEL to subpoena a third party, El Paso Corp., to produce documents and witnesses in connection with the arbitration that NPC contended it imminently would initiate against CEL. (164) Five days after CEL filed its request, Judge Melinda Harmon of the U.S. District Court for the Southern District of Texas granted the subpoena. (165)

In response to Judge Harmon's order, El Paso moved for a protective order and requested that the order be quashed or reconsidered. (166) According to El Paso, Biedermann was still binding precedent in the Fifth Circuit (the U.S. appellate circuit that includes Texas), and the district court must, therefore, follow the holding in Biedermann that [section] 1782 does not apply to foreign arbitral proceedings. (167)

On November 20, 2008, Judge Harmon issued an order reversing the court's previous discovery order. (168) In this new order, she stated that Biedermann is binding precedent in the Fifth Circuit and that Intel, which was decided after Biedermann, "shed no light on the issue" of whether [section] 1782 applies to foreign arbitral tribunals. (169) According to Judge Harmon: "[T]he Supreme Court has not addressed the application of [section] 1782 to arbitral tribunals, not even in dicta. Intel never mentions arbitral tribunals in the text of the opinion itself." (170) Following the issuance of Judge Harmon's order, CEL filed a notice of appeal with the Fifth Circuit. (171)

On August 6, 2009, in an unpublished per curiam decision, the Fifth Circuit Court of Appeals affirmed the district court's decision denying CEL's request for discovery pursuant to [section] 1782. (172) The Fifth Circuit first addressed whether CEL's appeal was moot because the Swiss arbitral tribunal had already closed the disclosure phase of the arbitration. According to the Fifth Circuit, although the disclosure phase had ended, because the UNCITRAL Rules provide for limited reopening of hearings before the issuance of an award upon a showing of exceptional circumstances, CEL's request was not moot. (173)

The Fifth Circuit next addressed CEL's Rule 60(b) motion, which contended that the district court's decision was based upon case precedent (Biedermann) that was no longer binding due to the Supreme Court's decision in Intel. (174) In denying CEL's motion, the Fifth Circuit held that "[t]he question of whether a private international arbitration tribunal also qualifies as a 'tribunal' under [section] 1782 was not before the [Supreme] Court." (175) The Fifth Circuit based its decision on two factors: (1) Intel only mentioned arbitration "in a quote in a parenthetical from a law review article by Hans Smit" (176) that contained no context "suggest[ing] that the [Supreme] Court was adopting Smit's definition of 'tribunal' in whole" (177); and (2) "none of the concerns raised in Biedermann regarding the application of [section] 1782 to private international arbitrations were at issue or considered in Intel." (178) Because the Intel decision did not squarely address the implications of applying [section] 1782 to foreign arbitral proceedings, the Fifth Circuit held that it remained bound by its holding in Biedermann. (179)

In relation to the same arbitral proceedings as those examined by the Fifth Circuit, the U.S. District Court for the District of Delaware granted CEL's [section] 1782 application on July 18, 2008. (180) On October 14, 2008, the district court denied NPC's motion for reconsideration, stating, among other things, that "the Supreme Court's decision in Intel (and post-Intel decisions from other district courts) indicated that Section 1782 does indeed apply to private foreign arbitrations." (181)

NPC appealed the district court's order and challenged the court's denial of its motion for reconsideration. (182) In an unpublished opinion, the Third Circuit dismissed the appeal as moot, vacated the district court's judgment, and remanded the matter for the district court to dismiss CEL's application as moot. (183) While recognizing that [section] 1782 "raises a number of difficult issues," the Third Circuit stated that it "need not (and d[id] not) reach these issues [of whether [section] 1782 applies to private arbitral tribunals] because this entire matter has become moot." (184)

Ultimately, because the arbitral process had reached the point of awaiting an award, the Third Circuit determined that the limited grounds for possible re-opening or revision of the decision were too remote to warrant further analysis under [section] 1782. (185)

F. In re Norfolk Southern Corp.

In June 2009, the U.S. District Court for the Northern District of Illinois followed the lead of the courts in El Paso in the case of In re Norfolk Southern Corp. (186)

In re Norfolk Southern Corp. pertained to an international arbitration in London that arose out of an insurance dispute regarding a train derailment in Graniteville, South Carolina. (187) In connection with the arbitration, Norfolk Southern sought to depose Scott Carey, an attorney in Chicago who represented certain insurance and reinsurance companies, including ACE Bermuda. (188) Since Mr. Carey refused to be deposed, Norfolk Southern moved the district court to compel Mr. Carey's deposition pursuant to [section] 1782. (189) After briefly examining the legislative history of [section] 1782, the court noted that "[t]he parties agree that Intel does not expressly resolve whether private arbitrations fall within the scope of [section] 1782." (190) Accordingly, the court proceeded to examine [section] 1782 case law both before and after Intel in order to determine whether the London arbitration qualified as a "foreign or international tribunal."

The court recognized that both NBC and Biedermann found that [section] 1782 does not include private foreign arbitral proceedings, stating that "[t]here is no contemporaneous evidence that Congress contemplated extending [section] 1782 to the then-novel arena of international commercial arbitration." (191) The court also recognized the string of cases--including In re Babcock Borsig AG, In re Hallmark Capital Corp., and In re Roz Trading Ltd.--holding that private foreign arbitral proceedings fall within the scope of [section] 1782. (192) Likewise, the court pointed out that a growing minority of courts "have held that private arbitrations remain outside the scope of the statute," including El Paso 1 & II and the decision in In re Oxus Gold, 193 which was partially based on an erroneous understanding of the nature of the UNCITRAL Rules. Ultimately, the court held that "the arbitration at issue in this case is outside the scope of [section] 1782." (194) Recognizing that the Intel decision quoted Hans Smit's definition of "foreign or international tribunal" that includes the term "arbitral tribunals," the court in In re Norfolk Southern Corp. concluded that the Supreme Court in Intel "stopped short of declaring that any foreign body exercising adjudicatory power falls within the purview of the statute." (195) Finding the reasoning in In re Oxus Gold persuasive, (196) Judge Elaine Bucklo interpreted the "Intel Court's reference to 'arbitral tribunals' as including state-sponsored arbitral bodies but excluding purely private arbitrations." (197) This distinction, opined Judge Bucklo, is supported by Intel's analysis of the role that the DG Competition plays in enforcing European law. (198) Furthermore, "[b]y contrast, private arbitrations are generally considered alternatives to, rather than precursors to, formal litigation." (199) As a result, Judge Bucklo held that she lacked the power to grant Norfolk Southern's request to compel Mr. Carey to give a deposition because a purely private foreign arbitration does not qualify for assistance pursuant to [section] 1782. (200)

G. In re Operadora DB Mexico, S.A. DE C. V.

Shortly before Judge Bucklo issued her opinion in In re Norfolk Southern Corp., Magistrate Judge Gregory J. Kelly issued a report and recommendation to the U.S. District Court for the Middle District of Florida on whether the district court should grant or deny discovery pursuant to [section] 1782 in connection with a foreign arbitral proceeding. (201) On December 10, 2008, Operadora DB Mexico, S.A. DE C.V. ("Operadora"), a Mexican corporation, filed an ex parte application seeking discovery of documents from Hard Rock Cafe International ("HRCI"), a Florida corporation, for an ongoing private ICC arbitration sited in Mexico City between it and Hard Rock Limited, a Jersey (Channel Islands) corporation. (202) In its request for assistance, Operadora stated that the ICC arbitration arose out of a franchise dispute between Operadora and Hard Rock Limited. (203) According to Operadora, HRCI, a non-party to the arbitration, had in its possession documents relating to the dispute, which the ICC tribunal had no ability to access. (204)

On February 6, 2009, Magistrate Judge Kelly granted the motion for discovery, and on February 24, 2009, HRCI filed multiple motions, including a motion to reconsider the decision and a motion to quash the subpoena issued on February 6, 2009. (205) Operadora filed its response to HRCI's motions on March 10, 2009, and on April 17, 2009, HRCI filed its reply. (206) In evaluating the arguments by both parties, Magistrate Judge Kelly recognized, as a preliminary matter, that "the United States Supreme Court did not ... directly address whether private foreign arbitration proceedings are 'tribunals' within the meaning of the statute." (207)

After analyzing the reasoning in Intel, Magistrate Judge Kelly liberally quoted In re Babcock Borsig AG, stating that even though Intel did not expressly include private arbitration tribunals within [section] 1782, "it quoted approvingly language that included 'arbitral tribunals' within the term's meaning in [section] 1782(a)." (208) Likewise, she adopted the language of In re Babcock Borsig AG, stating that the reasoning in NBC and Biedermann was unpersuasive and that the Supreme Court in Intel "emphasized Congress's intent to expand the applicable scope of [section] 1782(a)." (209) Finally, she quoted In re Babcock Borsig (in turn, quoting Intel) for the proposition that "[t]here is no textual basis upon which to draw a distinction between public and private arbitral tribunals, and the Supreme Court in Intel repeatedly refused to place 'categorical limitations' on the availability of 1782(a)." (210) Magistrate Judge Kelly then recommended that the district court grant the application for discovery pursuant to [section] 1782. (211)

After Magistrate Judge Kelly issued his report and recommendation in May 2009, the parties filed another round of submissions before District Judge Anne Conway, who framed the issue as follows: "[t]he primary question presented is whether a private arbitral tribunal (the "ICC Panel") constituted under the International Chamber of Commerce International Court of Arbitration ("ICC Court") qualifies as a foreign or international tribunal." (212) In her analysis, Judge Conway first approached the preliminary statutory requirements of [section]1782 and concluded that Operadora was an interested party, that the request for judicial assistance sought evidence, and that HRCI was a "resident" of the Middle District of Florida because it had its principle place of business there. (213) The only question that remained, then, was whether the ICC arbitral tribunal qualified as a "foreign or international tribunal" under [section] 1782. (214)

To answer this question, Judge Conway analyzed the case law surrounding the issue of whether private foreign arbitral tribunals fall within the scope of [section] 1782. (215) As a starting point for her analysis, she first asserted that "[t]he Eleventh Circuit has not addressed whether a private arbitral tribunal is a foreign or international tribunal under [section] 1782." (216) She also recognized that "[t]he only circuits to have addressed this issue, the Fifth Circuit and the Second Circuit, have held that a private arbitral tribunal is not a foreign or international tribunal under [section] 1782." (217) In evaluating these pre-Intel decisions, she noted that both courts deemed the scope of the term "foreign or international tribunal" to be "ambiguous." (218)

Judge Conway then turned to the Supreme Court's decision in Intel, noting that the Intel Court only "considered three questions regarding the scope of [section] 1782." (219) Because the Supreme Court addressed only these three discrete issues, "[t]he Intel Court was not faced with--and did not address--the question of whether a private arbitral tribunal is a foreign or international tribunal...." (220) Adopting the reasoning of NBC, Judge Conway nevertheless found that "the term 'foreign or international tribunal' is sufficiently broad that it could include private arbitral proceedings, but is not sufficiently precise to dictate such a conclusion." (221) Because she found the statute to be ambiguous, she rejected the reasoning of other courts, including In re Roz Trading (a sister district court in the Eleventh Circuit) and In re Hallmark Capital Corp. (222) Likewise, because she found the language at issue to be ambiguous, it became necessary to consider the legislative history and purpose of [section] 1782. (223) Upon closer examination, Judge Conway found persuasive the Second Circuit's analysis in NBC that "[t]he absence of any reference to private dispute resolution proceedings such as arbitration strongly suggests that Congress did not consider them in drafting the statute." (224)

In her opinion, Judge Conway remarked that neither Operadora nor Magistrate Judge Kelly recommended that the court adopt the reasoning of In re Roz Trading, which held that "[section] 1782 unambiguously includes private arbitral proceedings." (225) She then adopted a functional approach to [section] 1782, which analyzed the function of an arbitral panel based upon the "criteria endorsed by Intel as well as other functional characteristics" of the tribunal in question. (226) While Judge Conway found that the ICC arbitral tribunal embodied some of the key characteristics of a "foreign or international tribunal" highlighted by Intel, (227) she nevertheless found that "other significant characteristics of the ICC Panel foreclose its classification as a foreign or international proceeding under [section] 1782." (228)

First, Judge Conway found that the process of reviewing a final arbitral award issued by an ICC tribunal is "starkly different" than the American process of judicial review considered by Congress in drafting [section] 1782. (229) Because the ICC only administratively reviews awards issued by panels constituted pursuant to the ICC Rules, (230) she reasoned that decisions of ICC tribunals are not judicially reviewable as contemplated by the Supreme Court in Intel, noting that judicial review was central to the Supreme Court's determination in Intel that the European Commission qualified as a foreign tribunal under [section] 1782. (231)

Second, Judge Conway adopted the criteria set forth by the Intel Court, which considered the "origin of [the arbitral panel's] decisionmaking authority and its purpose." (232) In Intel, according to Judge Conway, the European Commission and the DG-Competition were clearly state-sponsored, so the Supreme Court did not need to apply its functional analysis to a private, contractual body such as an ICC arbitral tribunal. (233) Nevertheless, she concluded that "[i]f [the Supreme Court] had considered a proceeding such as the ICC Panel, the Supreme Court may consider these criteria [(i.e., the origin of decisionmaking authority and its purpose)] because they are unique and salient features of private arbitral proceedings." (234) In analyzing the authority and purpose of the ICC tribunal pursuant to the court's functional analysis, Judge Conway ultimately concluded that "[b]ecause the ICC Panel's authority derives from the parties' agreement, its purpose is fundamentally different than that of a governmental or state-sponsored proceeding." (235) Accordingly, she concluded that because private arbitrations are a creature of contract whereby alternative bodies are empanelled to "resolve disputes independently of state- sponsored tribunals," "Congress and the Supreme Court would not casually extend [section] 1782 assistance to such a proceeding without some deliberation." (236)

Based on this reasoning, Judge Conway disagreed with the reasoning in In re Roz Trading, In re Babcock Borsig AG, and In re Hallmark Capital Corps Likewise, she was not persuaded by arguments proffered by other district courts that the Intel court's citation to a footnote from Hans Smit's International Litigation article was indicative of Congressional intent, instead stating that "[t]his [c]ourt is confident that the Supreme Court would not have expanded [section] 1782 to permit discovery assistance in private arbitral proceedings and reversed NBC and Biedermann--without even acknowledging their existence--in a parenthetical quotation supporting an unrelated proposition." (238) Likewise, Judge Conway concluded that other district courts had failed to consider "how each proceeding is created or whether its authority to issue binding decisions [was] the result of private contract or domestic or international law." (239) Finding the NBC and Biedermann decisions more comprehensive and directly on point, she held that an ICC tribunal "is not a foreign or international tribunal under [section] 1782." (240) Because she concluded that an ICC tribunal does not qualify under [section] 1782 for assistance, Judge Conway had no need to apply the Intel factors to determine whether she should exercise her discretion in relation to Operadora's discovery request. (241)

H. OJSC Ukrnafta v. Carpatsky Petroleum Corp.

Also in 2009, OJSC Ukrnafta filed an ex parte application for discovery pursuant to [section] 1782 from Silver Point Capital, LLC ("Silver Point") in connection with an arbitration under the auspices of the Stockholm Chamber of Commerce ("SCC"). (242) The underlying arbitration before the SCC and pursuant to the UNCITRAL Rules of Arbitration, arose out of a joint venture dispute between Ukrnafta and Carpatsky Petroleum Corporation regarding the Rudivsko- Chernovozavodke oil and gas field. (243) Ukrnafta filed its application seeking discovery of documents from Silver Point--a third party to the arbitration--relating to an alleged merger between two Carpatsky Petroleum entities. (244)

In analyzing Ukrnafta's application for assistance, Magistrate Judge Joan Margolis reviewed NBC and Biedermann and noted that "[s]ince the Intel decision, a slim majority of federal courts have followed a similar reasoning to conclude that private arbitrations fall within the scope of Section 1782." (245) According to Magistrate Judge Margolis, however, more recent opinions "from a slim minority of courts have followed the reasoning of the Second and Fifth Circuits to conclude that private arbitrations do not fall within the meaning of Section 1782." (246)

Having evaluated both approaches to the question, Magistrate Judge Margolis determined that "[t]he cases taking the minority position are distinguishable from the case at bar" because the discovery process in the pending arbitration had yet to begin, as the parties were still disputing jurisdiction. (247) Likewise, Magistrate Judge Margolis cited In re Norfolk Southern Corp. for the misguided proposition that the UNCITRAL Rules provided further grounds for a distinction because UNCITRAL is "a body operating under the United Nations" and is therefore not a "purely private arbitration." (248) Finally, Magistrate Judge Margolis determined that the SCC "is acting as a 'first-instance decision maker,' whose decision may be subject to review, and thus falls within the purview of Section 1782." (249)

Magistrate Judge Margolis then applied the Intel factors, finding that Silver Point was a third party, the SCC had not indicated a lack of receptivity to judicial assistance, there was no evidence that Ukrnafta was attempting to circumvent foreign proof-gathering restrictions, and the requested discovery was narrowly tailored enough to warrant the order. (250) Thus, based on an erroneous understanding of the UNCITRAL Rules, the District Court in Connecticut held that a purely private SCC arbitration is within the scope of [section] 1782. (251)

I. In re Winning (HK) Shipping Co. Ltd.

In April 2010, a [section] 1782 case emerged from the Southern District of Florida involving contemplated international arbitral proceedings arising from a Charter Party Agreement. The court in its decision in In re Winning (HK) Shipping Co. Ltd. ("Winning") offered a functional approach for determining whether a private international arbitral tribunal is a foreign tribunal that qualifies for judicial assistance under [section] 1782. (252) The Winning court's functional test, which focuses on the judicial reviewability of arbitration awards, is reminiscent of the functional test provided by the court in Operadora II. (253) According to the Operadora II court, federal district courts evaluating whether an entity is a "foreign tribunal" under [section] 1782 should analyze, among other things, whether the tribunal: (1) has the ability to gather evidence; (2) is obligated to apply the law to the facts in an impartial manner; (3) has the authority to issue a binding decision; (4) will issue opinions that are judicially reviewable; and (5) is state-sponsored or purely private. (254) According to the Operadora II court (and the magistrate judge in Winning), whether a decision is judicially reviewable is of decisive importance because of the Supreme Court's heavy focus on judicial reviewability in Intel. (255)

According to the Winning court, the arbitration at issue in that case--which had not yet been commenced but was merely being contemplated by the party that made the [section] 1782 application--would be sited in London. (256) The Charter Party Agreement between the potential claimant and respondent did not specify any institutional rules to be used in connection with the arbitration. (257) According to the court, in the absence of any specified rules, either the London Maritime Arbitrators Association ("LMAA") Rules or the English Arbitration Act 1996 (the "Act") would apply to the arbitration. (258) Relying on the LMAA website's "FAQs" about appealing an arbitral award, the court stated that regardless of whether the arbitration was governed by the LMAA Rules or not, the Act provided for both substantive ([section]69) and procedural ([section]68(2)) judicial review of any resulting arbitral award. (259) Based on this reasoning, the Winning court concluded that "to the extent the arbitration forum at issue is subject to the Arbitration Act 1996 (of England) or ... the rules of the London Maritime Arbitrators Association, Winning is proceeding before a 'foreign tribunal.'" (260)

In its opinion, the Winning court also favorably discussed the Second Circuit's decision in NBC and the Fifth Circuit's decision in Biedermann, stating that there is no reason to believe that either the ICC arbitration in NBC or the SCC arbitration in Biedermann would have resulted in judicially reviewable awards. (261) According to the Winning court, in post-Intel cases that have not extended [section] 1782 to foreign arbitral tribunals, courts also have examined whether the tribunals in question would issue judicially reviewable awards. (262) Under the functional test applied by the Winning and Operadora II courts, only foreign arbitrations sited in jurisdictions where awards can be judicially reviewed qualify as "foreign tribunals" under [section] 1782. (263)

J. In re Chevron

Only a week after the Winning decision, Judge Lewis Kaplan, sitting in the Southern District of New York, addressed an application by Chevron seeking discovery assistance in connection with court proceedings pending in Ecuador and with an international arbitration commenced pursuant to the bilateral investment treaty between the United States and Ecuador under the UNCITRAL Rules. (264) Both the court proceedings and the international arbitration related to class action claims arising from alleged oil contamination of Ecuadorian rainforests and rivers between 1964 and 1992 by Texaco, which Chevron acquired in 2001. (265) Attorneys for the plaintiff class sought to publicize the plaintiffs' case by, among other things, inviting filmmaker Joseph Berlinger to film the trial in Ecuador and to shoot footage of the harm the contamination purportedly caused to the local population. (266)

In 2009, Berlinger released his film, entitled Crude, which originally contained footage of the class attorneys' meeting with a purportedly independent expert appointed by the Ecuadorian court. (267) In the subsequent DVD release, and at the direction of the plaintiffs' lawyers, Berlinger edited out all frames that included images of the expert. (268) Other scenes in Crude show the plaintiffs' counsel in the Ecuadorian litigation persuading the judge in the case, albeit with the media and Chevron's lawyers present, not to inspect the laboratory where contamination tests were conducted. (269) Another scene captured a representative of the plaintiffs proclaiming that Ecuadorian President Correra was now a "friend." (270)

Based on these facts, Chevron filed an application for judicial assistance seeking "the production of all Crude footage that was shot, acquired, or licensed in connection with the movie Crude." (271) Based on these facts and the request of Chevron, Judge Kaplan first pointed to the threshold requirement for triggering [section] 1782 and then outlined the factors the Supreme Court presented in Intel. As to the threshold requirements, the only question to resolve was whether the international arbitration qualified as a "foreign or international tribunal." (272)

Judge Kaplan held that "the arbitration here at issue is not pending in an arbitral tribunal established by private parties. It is pending in a tribunal established by an international treaty, the BIT between the United States and Ecuador, and pursuant to the UNCITRAL rules." (273) Judge Kaplan also highlighted that the NBC decision predated the Supreme Court's holding in Intel, that dicta in Intel placed weight on Hans Smit's definition in his 1964 law review article, and that "at least two district courts in our Circuit and one in the Third Circuit have followed the Supreme Court's dictum and held that international arbitral bodies operating under UNCITRAL rules constitute 'foreign tribunals' for purposes of Section 1782." (274) Having determined that an international arbitration arising out of a bilateral investment treaty under the UNCITRAL Rules qualified as a "foreign or international tribunal," Judge Kaplan applied the Intel factors, concluding that Chevron had satisfied them. (275)

K. In re Caratube International Oil

In August of 2010, Judge John Bates of the U.S. District Court for the District of Columbia joined the [section] 1782 debate by issuing a memorandum opinion in In re Caratube International Oil ("Caratube"). (276) The arbitration at issue in Caratube arose out of an oil exploration and production contract between Caratube and the Republic of Kazakhstan that Kazakhstan cancelled in 2008, purportedly as "part of the fall-out of a nasty family political fight within Kazakhstan." (277) In 2008, Caratube filed its request for arbitration pursuant to the bilateral investment treaty between the United States and Kazakhstan with the International Centre for Settlement of Investment Disputes ("ICSID"). (278) The parties agreed to apply the International Bar Association's Rules on the Taking of Evidence in International Arbitration ("IBA Rules"), (279) and disclosure deadlines for documents were set for April 16, 2010. (280) On April 26, 2010, the ICSID tribunal extended the document production deadline by four weeks, and Caratube filed its motion for judicial assistance two days later. (281)

The day after filing its request with the district court, Caratube notified the ICSID tribunal of the filing and requested a six-month extension of the entire arbitration schedule. (282) The ICSID tribunal stated that it would not extend the arbitral proceedings for the [section] 1782 request, that it would refrain from granting Kazakhstan's cease and desist order, and that it "reserved the question of whether it would admit any documents obtained through the section 1782 petition." (283)

In its analysis, the court in Caratube noted that while the parties "vigorously contest whether the ICSID arbitration is 'a foreign or international tribunal' for purposes of section 1782," the court need not make such a determination in order to issue an opinion. (284) Judge Bates cited Intel's holding that even where [section] 1782's threshold requirements are met, a court still retains discretion over whether to deny or grant the request. (285) Based on this principle of discretion, Judge Bates avoided opining on whether the ICSID tribunal met the threshold requirements under [section] 1782, and instead directly applied the Intel factors, which weighed against granting Caratube's request. (286) According to Judge Bates, while the ICSID tribunal did not explicitly state that it would be unreceptive to U.S. judicial assistance, "the nature of the Tribunal, as well as the character of the arbitration proceedings currently underway, counsel against granting the petition." (287)

Analyzing the nature of the ICSID tribunal, Judge Bates noted that the bilateral investment treaty between the United States and Kazakhstan offered a variety of options for resolving the dispute, ranging from initiating court proceedings in Kazakhstan to arbitration pursuant to the UNCITRAL Rules or other rules. (288) Because Caratube specifically chose to file an arbitration under the ICSID Rules, the court was "reluctant, then, to interfere with the parties' bargained- for expectations concerning the arbitration process." (289) Accordingly, it found that the nature of the arbitral proceedings underway, coupled with the contractual basis for these proceedings, weighed against granting the petition.

Furthermore, the court determined that the character of the ICSID proceedings also weighed against granting the petition because Caratube waited over a year after the ICSID tribunal established the schedule for the arbitration to file its petition. (290) Neither party refuted the fact that the parties never discussed the possibility of seeking documents or other discovery from third parties. (291) Because of the timing and lack of communication between the parties, Judge Bates ultimately concluded that the character of the proceedings underway militated against granting the petition. (292)

Judge Bates also analyzed whether Caratube's request sought to "circumvent foreign proof-gathering restrictions," paying particular attention to the parties' choice to rely upon the IBA Rules to guide the disclosure process. (293) Judge Bates stated that "by unilaterally filing this petition, Caratube has side- stepped these [IBA] guidelines, and has thus undermined the Tribunal's control over the discovery process." (294) Relying on each of the Intel factors (and ignoring the threshold question of whether an ICSID tribunal qualifies as a "foreign or international tribunal" under [section] 1782), Judge Bates concluded that even if the tribunal qualified under the threshold requirements, the Intel factors, and particularly the "nature and character" of the tribunal, weighed against exercising the court's discretion to grant Caratube's request. (295)

L. Chevron v. Charles Camp

Just a few days after Judge Bates issued his opinion in Caratube, the U.S. District Court for the Western District of North Carolina addressed another request for discovery by Chevron in connection with the Chevron-Ecuador bilateral investment treaty arbitration sited at the Permanent Court of Arbitration under the UNCITRAL Rules. (296) In its request in North Carolina, Chevron sought discovery from Charles Camp, a "consulting expert in the foreign proceedings" who had "provided his own expertise to the soon to be court appointed independent Ecuadorian expert." (297) In line with Judge Kaplan's opinion in the Southern District of New York (that addressed the exact same international arbitration and Ecuadorian litigation), but with less analysis on the threshold question, Magistrate Judge Dennis Howell stated that both "the Ecuadorian courts as well as an arbitration proceeding pending before the Permanent Court of Arbitration ("PCA") in the Hague are actions or proceedings before 'tribunals' under Section 1782." (298) Because the proceedings at issue qualified for [section] 1782 assistance, Magistrate Judge Howell applied the Intel factors, concluding that Chevron's request was "clearly a good faith attempt to find evidence that appears probative to proceedings now pending in foreign tribunals." (299) Mr. Camp has appealed the order to the district court, which has been briefed with written submissions by both parties. (300)

M. Other Pending Chevron Actions

In addition to the Chevron-related cases discussed above, Chevron has filed applications, and has been granted discovery orders, in at least five other jurisdictions for judicial support in the bilateral investment arbitration at the PCA in the Hague. These courts include the District of Colorado, (301) the Northern District of Georgia, (302) the Southern District of California, (303) the District of New Jersey, (304) and the Middle District of Tennessee. (305) Each of these courts granted Chevron's applications, although only the courts in Tennessee and Georgia addressed whether bilateral investment treaty arbitration under the UNCITRAL Rules qualifies as a "foreign or international tribunal" under [section] 1782.

In Tennessee, Magistrate Judge Joe Brown noted that both NBC and Biedermann "were decided in 1999, five years before Intel." (306) Magistrate Judge Brown then cited In re Roz Trading, which held that a private foreign arbitration under the VIAC Rules qualified for judicial assistance under the statute, concluding that "an arbitral tribunal established by international treaty should be considered an international tribunal under [section] 1782." (307)

In the Northern District of Georgia, Magistrate Judge Gerrilyn Brill cited In re Roz Trading for the proposition that "[t]he text of [section] 1782(a) provides no basis for distinguishing between 'public' and 'private' arbitral tribunals." (308) Based on this reasoning, Magistrate Judge Brill held that treaty arbitration is within the scope of [section] 1782, citing Oxus Gold and OSJC Urknafta to support the claim that "Section 1782 has also been applied to authorize discovery for matters subject to international arbitration, like ... Treaty Arbitration." (309)

N. Summary of Case Law

To summarize, federal district courts have approached [section] 1782 applications inconsistently. While this has led to disparate and sometimes unpredictable results, some observations and conclusions nevertheless can be drawn.

As explained above, between the Intel decision in 2004 and the In re Babcock Borsig AG decision in 2008, U.S. federal district courts in Georgia, Minnesota, and Massachusetts (in the Eleventh, Eighth, and First Circuits) all explicitly held that foreign arbitral tribunals fall within the scope of [section] 1782. However, following the In re Babcock Borsig AG decision in late 2008, there appeared to be a marked shift in courts' opinions regarding this issue. As a result, district courts in Illinois, Texas, and Florida (in the Seventh, Fifth, and Eleventh Circuits) held that foreign arbitral tribunals do not fall within the ambit of [section] 1782, and one circuit court--the Fifth Circuit--affirmed, albeit in an unpublished per curiam opinion, that Intel did not decide the question and that foreign arbitral tribunals do not qualify for [section] 1782 assistance. In 2010, courts issued mixed decisions, ranging from a decision requiring both procedural and judicial reviewability (Winning) to decisions granting [section] 1782 petitions with little or no analysis of the threshold question of applicability. Similarly, in Caratube the court entirely sidestepped the threshold question of statutory applicability, opting instead to apply the Intel factors which militated against granting the request. While this issue was briefed and argued before the Seventh Circuit, the case ultimately settled before an opinion was issued, (310) and no other circuit courts (other than the Fifth Circuit in its unpublished decision) have addressed this issue. They undoubtedly will do so in the future.

VI. REACTIONS TO POST-INTEL DECISIONS REGARDING THE SCOPE OF [section] 1782 TO FOREIGN ARBITRAL PROCEEDINGS

As a result of the divergent court opinions discussed above, multiple arguments have been advanced regarding [section] 1782's scope, some in favor of applying [section] 1782 to foreign arbitral tribunals, (311) others indifferent to the question, (312) and some arguing that applying [section] 1782 to private arbitrations "risks undermining the entire arbitral process" (313) and that "such expansion of the statute [to include private arbitral bodies] is better left to the considered judgment of Congress, not to the Courts." (314)

Following the In re Roz Trading and In re Oxus Gold decisions--the first post-Intel decisions to address the applicability of [section] 1782 to foreign arbitral proceedings--numerous case notes and client alerts, along with more in-depth articles, were published regarding the purported extension of [section] 1782 to foreign arbitral proceedings, many of which suggested that this expansion will have wide-ranging and deleterious implications on the conduct and popularity of international arbitration in the future. (315) Three types of concerns stand out from these articles: (1) concerns over the effect of this precedent on the costs and timing of arbitrations; (2) concerns that U.S. parties to foreign arbitrations might be strategically disadvantaged by this new understanding of [section] 1782; and (3) concerns about the unsettled nature of [section] 1782 case law.

A. Concerns Regarding the Costs and Efficiency of Foreign Arbitral Proceedings

The first concern that has been expressed regarding cases extending [section] 1782 to foreign arbitral proceedings is that if other courts follow in the footsteps of these decisions by expanding scope of [section] 1782 to cover foreign arbitral proceedings, this will significantly increase the costs and duration of international arbitral proceedings, thereby undermining one of the key justifications for international arbitration, namely cost effectiveness and expediency. A frequently expressed fear is that if decisions in cases like In re Roz Trading and In re Oxus Gold become the norm, "parties to foreign international arbitrations may have access to broad US-style discovery." (316) As Michael Nolan and Lesley Benn write:
   A concern frequently is expressed that 'US-style' discovery is the
   order of the day--contrary to what are said to be primary
   objectives of arbitration, namely economy and expedition .... [In
   light of Roz,] foreign parties are likely to have an easier time
   seeking discovery under section 1782 than through other available
   options. No letters rogatory, treaty provisions, or United States
   government assistance is required for a foreign party to invoke
   section 1782 assistance. If the Roz decision marks the start of a
   line of cases interpreting section 1782 similarly, then US-style
   discover-y-in its literal sense--may become the order of the day.
   (317)


Echoing these sentiments, Claire Morel de Westgaver writes:

"[A]buse of [[section] 1782] could lead to arbitration becoming more like conventional litigation and losing some of its attraction as a quick and, sometimes, more proportional method of dispute resolution." (318)

Other commentators make this point indirectly, noting that an expansive interpretation of [section] 1782 could frustrate parties' expectations regarding arbitration and generate interim orders from courts that the parties did not anticipate. As one commentator puts it:
   [O]pponents of an expansive interpretation of [section] 1782
   particularly criticize its application to private arbitration
   proceedings .... Fear is expressed that [section] 1782 is not
   suited for use in connection with arbitration proceedings and may
   open the door to possible judicial interference by U.S. Courts with
   the arbitral process which would be contrary to the parties
   expectations when agreeing to arbitration. The argument is made
   that a U.S. Court should not substitute its own judgment for that
   of the parties' arbitral tribunal and the parties may have agreed
   to the arbitration proceeding precisely because they do not wish to
   be subjected to interim court orders. (319)


These commentators' concerns echo the concerns expressed in NBC and Biedermann that unrestrained extension of [section] 1782 to foreign arbitral proceedings could undermine the cost effectiveness and speediness of arbitrations. (320) All of these commentators share a concern that if other courts follow district courts in cases like In re Roz Trading and In re Oxus Gold and hold that [section] 1782 can be used to obtain discovery for use in foreign arbitral proceedings, the costs of arbitrations will rise, the efficiency of arbitral proceedings will decrease, some parties to arbitration agreements will have their intentions regarding arbitration frustrated, and arbitration will suffer.

B. Concerns Regarding the Asymmetrical Effect of [section] 1782

The second concern frequently expressed regarding the extension of [section] 1782 to foreign arbitral proceedings is that if this becomes the norm, U.S. parties to international arbitration agreements will be disadvantaged vis-a-vis their foreign counterparts.

In the words of the authors of a recent article in the Global Arbitration Review with the subheading "Recent decisions on section 1782 could put US companies at a disadvantage in international arbitration": (321)
   [W]idespread access to section 1782 for parties engaged in private
   international arbitration could result in significant imbalance
   between foreign parties and their US counterparts. Section 1782
   could be used by foreign parties to access US-style discovery,
   while the US party would enjoy no such access to their adversaries'
   documents abroad .... It is a paradox that the very system so
   criticised by foreigners as burdensome and exorbitant in what it
   permits may be accessible to foreign parties engaged in, or even
   contemplating the engagement of, international commercial
   arbitration--but not to their US counterparts. US companies
   meanwhile are likely to suffer the affects in international
   commercial arbitration, as they are the ones most likely to have
   discoverable information in the US. (322)


Another author expresses a similar concern, stating:
   It is further argued that the general absence of reciprocity places
   persons who reside or are found in the U.S. at a disadvantage since
   there is generally not a comparable disclosure obligation in the
   home country of the applicant. Foreign companies outside the reach
   of U.S. Courts would thus be given a discovery weapon against U.S.
   opponents that could not in turn be used against the foreign
   parties. It has been suggested in some quarters that Congress
   should intervene to reverse or limit the extension of [section]
   1782(a), especially as it applies to arbitration proceedings. (323)
   Given the lack of uniformity in the interpretation of s. 1782, an
   element of forum shopping may be appropriate. If the US entity
   against which discovery is sought is located in more than one
   jurisdiction, careful consideration should be given to choosing the
   court in which to launch the application. (324)


John Fellas, in a well-reasoned article on [section] 1782, also expresses concem about the position of U.S. parties if [section] 1782 is extended to cover disclosure requests in foreign arbitral proceedings, focusing in particular on the effect this would have on U.S. parties to multitiered dispute resolution agreements. (325) As he writes:
   In the litigation context, section 1782 has been used not only for
   the taking of evidence, but also for the strategic purpose of
   putting settlement pressure on an adversary. In the arbitration
   context there is one situation, in particular, where the use of
   section 1782 might give a foreign party an important advantage over
   its US adversary. This is when a contract contains a multitiered
   dispute resolution clause requiring consultation, negotiation or
   mediation as a predicate to the commencement of arbitration
   proceedings. Typically, such clauses prohibit the commencement of
   arbitration proceedings for a period of time, say 60 days, during
   which time the parties' representatives attempt to resolve the
   dispute, often with successive representatives of the parties, each
   higher up in the corporate hierarchy, getting involved.

   Once a notice of dispute has been given under a multitiered clause,
   a good case could be made than an arbitration proceeding is within
   'reasonable contemplation', such that a party could apply to take
   evidence pursuant to section 1782. If a French party makes a
   section 1782 application to take evidence from a US party during
   the period of negotiation required by a multitiered clause, the
   effect might well be to put very serious pressure on the US party
   to settle the case. The US party might prefer to settle rather than
   make its corporate officers available for depositions, or turn over
   other evidence, pursuant to a section 1782 order. (326)


Likewise, Peter Rutledge offers a compelling argument along the same lines as Fellas, concluding that bringing private international arbitrations within the ambit of [section] 1782:
   risks undermining the entire arbitral process by creating an
   asymmetrical tactical device that systematically disfavors U.S.
   companies: foreign parties can use section 1782 petitions as a tool
   both to extract information from their U.S. adversaries and to
   bolster their settlement position. To avoid these deleterious
   results, section 1728 should be interpreted not to encompass
   international arbitral tribunals. (327)


C. Concerns Regarding the Unsettled Nature of [section] 1782 Case Law

The third concern that frequently has been expressed regarding the extension of [section] 1782 to foreign arbitral proceedings is that federal courts have not uniformly held that [section] 1782 should be extended to cover foreign arbitral proceedings, and uniformity on this issue likely will not emerge in the near future.

As discussed above, federal district courts in Illinois, Texas, and Florida, following the Supreme Court's decision in Intel, have held that the scope of [section] 1782 does not extend to foreign arbitral proceedings, as have the Second and Fifth Circuits before Intel and the Fifth Circuit, in an unpublished per curiam opinion, after Intel. (328) Peter Rutledge agrees with this conclusion, contending that such an extension of [section] 1782 "risks undermining the entire arbitral process" (329) and that "such expansion of the statute [to include private arbitral bodies] is better left to the considered judgment of Congress, not to the courts." (330) Other commentators, however, have stated "[t]he better view is that [section]1782 does apply to requests for judicial assistance in international arbitration, but that the provision should be applied with considerable circumspection," (331) and the New York City Bar Association's Committee on International Commercial Disputes recently concluded that "the better position--based on the plain meaning of the statute, the Supreme Court's decision in Intel, the legislative history and policy considerations--is that Section 1782 discovery should be available in private, international arbitration seated outside the United States." (332)

We agree that the better view is that [section] 1782 should extend to foreign arbitral proceedings, in light of the language and history of [section] 1782, the Supreme Court's expansive view of this statute in Intel, and public policy concerns. Nevertheless, in light of divergent district court opinions regarding the extension of [section] 1782's scope to foreign arbitral proceedings, federal circuit courts must now address this issue with clarity and finality. If no consensus emerges amongst federal circuit courts on this issue, the Supreme Court likely will need to step in and resolve whether [section] 1782 extends to foreign arbitral proceedings. Undoubtedly, this process will take a significant amount of time (likely several years, at a minimum), and in the interim, courts in those districts and circuits where [section] 1782 has been extended to foreign arbitral proceedings would benefit from a cohesive normative theory regarding [section] 1782's application based upon controlling Supreme Court precedent and the norms of international arbitral practice. As explained below, this theory should allay many of the concerns set forth above regarding the extension of [section] 1782's scope to foreign arbitral proceedings.

If, contrary to our view, the final consensus amongst federal courts is that [section] 1782 does not extend to foreign arbitral proceedings, concerns about [section] 1782's deleterious effects on the arbitral process will have been resolved. Conversely, if ultimately the consensus amongst federal courts is that [section] 1782 extends to foreign arbitral proceedings--as we believe should be the case--a normative theory of how to apply [section] 1782 will ensure that this statute does not have the deleterious effect on international arbitration that many have predicted but instead serves as a limited, albeit useful, tool for parties to international arbitrations. The remainder of this article therefore assumes for the sake of argument that [section] 1782 extends to foreign arbitral proceedings and focuses on the factors that should guide its application.

VII. A NORMATIVE THEORY FOR HOW [section] 1782 SHOULD BE APPLIED IN CONNECTION WITH FOREIGN ARBITRAL PROCEEDINGS

While the concerns discussed above regarding the effect of extending [section] 1782 to foreign arbitral proceedings are important, we believe they can be allayed by understanding how a court should consider a [section] 1782 application in connection with a foreign arbitral proceeding. We contend that a federal district court considering a [section] 1782 application in connection with a foreign arbitral proceeding must consider the application in light of (a) the factors set forth in Intel for determining whether a [section] 1782 application should be granted, (b) the Supreme Court's prior precedent supporting international arbitration, and (c) the parties' arbitration agreement in a given case. The Supreme Court's holdings not only in Intel but in all of its prior decisions regarding international arbitration are binding precedent, which U.S. district courts must apply and follow. Similarly, the parties' arbitration agreement in a given case provides the contractual basis for arbitration between them and can limit the scope of disclosure available in connection with an arbitration. (333) As we explain below, when each of these factors is taken into account, it becomes clear that requests for discovery pursuant to [section] 1782 in connection with foreign arbitral proceedings only should be granted in limited circumstances and always should be narrowly tailored in scope. This should allay the majority of concerns that have been expressed regarding the extension of [section] 1782 to cover foreign arbitral proceedings.

A. Courts Considering [section] 1782 Discovery Requests Must Follow the Guidelines Set Forth in Intel

As an initial matter, a federal court considering a [section] 1782 discovery application must follow the guidelines set forth in Intel when deciding how to rule on the application. These detailed guidelines significantly limit the scope of permissible [section] 1782 discovery requests.

In Intel, the Supreme Court stated that a district court is never required to grant a [section] 1782 discovery application but instead has the discretion to do so if the guidelines set forth in Intel are met. (334) Because decisions of the Supreme Court are controlling legal precedent in the United States, no lower U.S. court should grant a [section] 1782 discovery application without considering, and adhering to, these factors. If a court were to grant a [section] 1782 discovery application without appropriately considering and applying these factors, its decision could be overturned on appeal. As discussed in Part IV above, the Supreme Court set forth five factors in Intel that are potentially relevant to discovery requests pursuant to a [section] 1782 discovery application for use in connection with foreign arbitral proceedings. We discuss each of these factors below.

1. Arbitral Receptivity

Pursuant to Intel, a federal district court faced with a [section] 1782 discovery application must consider whether the foreign arbitral tribunal would be receptive to judicial assistance from a U.S. federal Court. (335) This requirement is perhaps the most important of the various factors outlined in Intel and has been recognized as such in several of the post-Intel opinions that have extended the scope of [section] 1782 to private international arbitrations. As discussed below, both courts and commentators recognize the centrality of arbitral receptivity to the determination of whether a court should grant a discovery request pursuant to [section] 1782.

For instance, in In re Roz Trading, the district court concluded that the VIAC likely would be receptive to the aid offered by a U.S. district court. (336) According to the court, because the VIAC as an international body "must rely on the aid of courts beyond its jurisdiction ... to enforce its demands and to aid its inquiries ..." it would undoubtedly be "receptive to aid from courts such as [the district court in Georgia]." (337) Furthermore, the court cited Article 589 of the Centre's Rules of Civil Procedure that specifically referenced the role of a state court in aiding a tribunal. (338) In conclusion, the district court stated that the facts supporting the Centre's receptivity favored granting the [section] 1782 application. (339) In reality, In re Roz Trading did not go far enough and in our opinion betrays a lack of understanding of the arbitral process. The court refers to the VIAC's receptivity to foreign court assistance, (340) but the VIAC is only an institution that administers arbitrations. The actual fact-finder potentially dependent on foreign court assistance is the specific tribunal constituted under the VIAC Rules. Accordingly, in our view a federal district court confronted with a [section] 1782 application should ascertain the receptivity of the individual arbitration tribunal, rather than of the institution in the abstract. The court's statement that the VIAC "must rely on the aid of courts beyond its jurisdiction" and therefore would undoubtedly be "receptive to aid from courts such as [the district court in Georgia]" (341) seems to assume that the VIAC would be receptive to aid simply because it has no jurisdiction outside the territory in which it is established. On that rationale, any tribunal in one country would be deemed "receptive to aid." Rather than applying an abstract "pre-assumption of receptivity," the court ought to examine the specific receptiveness of the individual tribunal, if only to ensure that the specific document production process applied in the circumstances of the individual arbitration is not undermined or frustrated through the application of [section] 1782. The court should not presume abstract receptiveness to aid, but must ascertain the concrete receptivity of the individual tribunal.

In In re Hallmark Capital Corp., Magistrate Judge Susan Nelson explicitly recognized the specific foreign arbitrator's receptivity to judicial assistance from the court. (342) Quoting an order by the Israeli arbitrator staying proceedings pending the discovery request in Minnesota, Magistrate Judge Nelson opined that "the Israeli arbitrator has stated his 'receptivity' to this Court's assistance." (343) Because the petition was favorably received by the arbitrator, and because the other Intel factors favored granting the motion, she granted the petitioner's motion. (344)

In In re Babcock Borsig AG, the district court similarly stated that "[t]he receptivity of the foreign tribunal is particularly important in light of the purposes of [section] 1782(a)." (345) Under the facts of In re Babcock Borsig AG, however, neither of the parties provided any "authoritative proof" of whether the ICC tribunal would be receptive to U.S. judicial assistance. (346) Without such an indication of receptivity, the court (on our view, correctly) denied Babcock Borsig's request "until if and when the ICC provides some affirmative indication of its receptivity to the requested materials." (347) The court further stated that if the ICC tribunal expressed receptivity to Babcock Borsig's request at a later date, the court would have no problem reconsidering its ruling. (348)

Commentators also have recognized the importance of arbitral receptivity in connection with a request for disclosure under [section] 1782. For instance, Hans Smit, described as the architect and main drafter of [section] 1782, (349) has commented that an "American court should honor an application under Section 1782 only if the application is approved by the arbitral tribunal." (350) The New York City Bar Association's Committee on International Commercial Disputes also recently recommended that "Section 1782 discovery be granted only if the request is made by the arbitrators or with the consent of the arbitrators and that, therefore, district courts consider the source of the request as a very important factor in exercising its [sic] discretion." (351) Likewise, other commentators have recognized the importance of arbitral receptivity, noting that "It]he arbitral tribunal performs the role of a gatekeeper guarding the limited application of section 1782 in aid of foreign arbitral proceedings in various ways. This is achieved by making relief to a section 1782 request conditional upon approval by the arbitral tribunal." (352) Applied in this way--i.e., making the court's assistance dependant on the approval of the specific arbitral tribunal and giving ultimate control over the process to the tribunal or the relevant fact-finder transforms [section] 1782 into an instrument that is both useful and uncontroversial.

2. Party to the Foreign Proceedings

Pursuant to Intel, a federal district court faced with a [section] 1782 discovery application must consider whether the person from whom discovery is sought is a participant in the foreign proceeding. (353) According to the Court, if the party from whom discovery is requested is a party to the foreign proceeding, an order pursuant to [section] 1782 is less justified than if the party is a nonparticipant. (354) This follows from the fact that a foreign tribunal would have jurisdiction over those parties appearing before it and could order them to produce evidence, whereas it might lack the ability to compel nonparties to produce evidence without judicial assistance. (355) Because the rules of the leading arbitral institutions generally permit arbitrators to order discovery from the parties to an arbitration, (356) and because arbitrators generally do not have jurisdiction to compel nonparties to produce evidence, this rationale is applicable in the context of foreign arbitral proceedings. It follows, therefore, that U.S. courts generally should not intervene in disclosure disputes between parties to a foreign arbitral proceeding by granting a [section] 1782 application filed by one party requesting discovery from another party to the same arbitration, but instead generally only should grant [section] 1782 applications regarding the disclosure of evidence from nonparties. This limitation reduces the likelihood that [section] 1782 will be used as a strategic tool by one party to an arbitration against another party, reduces the likelihood that U.S. parties to foreign arbitral proceedings will be disadvantaged by [section] 1782, and reduces the chance that U.S.-style discovery will become the norm in international arbitration. At the same time, this approach preserves courts' ability to use [section] 1782 as a tool to assist arbitrators by gathering evidence from nonparties that might otherwise be unavailable.

3. The "Nature and Character" of the Tribunal

Pursuant to Intel, a federal district court faced with a [section] 1782 discovery application must consider the "nature of the foreign tribunal" and "the character of the proceedings underway abroad." (357) If the foreign tribunal is an arbitral tribunal, courts would be wise to consider the rules applicable to the foreign arbitral proceedings. The rules of many leading arbitral institutions, for instance, provide that the arbitrators shall control discovery. (358) Likewise, the IBA Rules provide that the arbitral tribunal shall direct requests for discovery. (359) Regarding requests for disclosure from third parties, Article 3(9) of the IBA Rules states:
   If a Party wishes to obtain the production of Documents from a
   person or organization who is not a Party to the arbitration and
   from whom the Party cannot obtain the Documents on its own, the
   Party may, within the time ordered by the Arbitral Tribunal, ask it
   to take whatever steps are legally available to obtain the
   requested documents, or seek leave from the Arbitral Tribunal to
   take such steps itself. The Party shall submit such request to the
   Arbitral Tribunal and to the other Parties in writing, and the
   request shall contain the particulars set forth in Article 3.3, as
   applicable. The Arbitral Tribunal shall decide on this request and
   shall take, authorize the requesting Party to take, or order any
   other Party to take, such steps as the Arbitral Tribunal considers
   appropriate if, in its discretion, it determines that (i) the
   Documents would be relevant to the case and material to its
   outcome, (ii) the requirements of Article 3.3, as applicable have
   been satisfied and (iii) none of the reasons for objection set
   forth in Article 9.2 applies. (360)


For example, the court in Caratube specifically pointed to the fact that the parties had chosen the IBA Rules to inform the discovery process in the arbitration. (361) Although Judge Bates analyzed the parties' selection of the IBA Rules under the Intel factor of "circumventing foreign proof-gathering," he nevertheless acknowledged that "by unilaterally filing this petition, Caratube has side- stepped these [IBA] guidelines, and has thus undermined the Tribunal's control over the discovery process." (362) This statement indicates that Judge Bates recognized the importance of the parties' selection of the IBA Rules, which ultimately function as a "characteristic of the proceedings underway abroad." (363) Coupled with the fact that Caratube had multiple choices of forum under the applicable bilateral investment treaty, the court was "reluctant, then, to interfere with the parties' bargained-for expectations concerning the arbitration process." (364)

Accordingly, following Intel, a court considering a [section] 1782 application in connection with a foreign arbitral proceeding where the applicable arbitral rules vest the arbitrators with control over discovery--or the taking of evidence more generally--should be reluctant to grant a discovery request made by one of the parties (thereby undermining the arbitrators' authority or the parties' express agreements), but should be more inclined to grant a request for discovery made by the arbitrators themselves, or at least with their consent.

Likewise, Intel's guidance that courts considering a [section] 1782 application should consider the "character of the proceedings underway abroad" suggests that courts should consider, among other things, the current stage of the foreign arbitral proceedings and what effect, if any, a [section] 1782 application would have on those proceedings. As such, a court generally should not grant a [section] 1782 application made by a party to a possible future foreign arbitral proceeding if, for instance, it made the application in order to frustrate the negotiation process found in a contract's multitiered dispute resolution clause or indeed if the arbitral taking of evidence is conducted. This guidance should allay the concerns of those who fear that [section] 1782 will be used as a strategic weapon to induce unwarranted settlements or to disrupt the schedule established in the arbitration. (365)

4. Unduly Intrusive or Burdensome Request

Pursuant to Intel, a federal district court faced with a [section] 1782 discovery application must consider whether the requested disclosure is "unduly intrusive or burdensome." (366) If it is, it can be rejected or modified by the court. This guidance from the Supreme Court means that a district court considering a [section] 1782 application should not allow U.S.-style discovery "fishing expeditions" that would be extremely burdensome or would go beyond the scope of the arbitrations. The assistance offered by the U.S. court should meet a targeted and specific evidentiary need in the arbitration. If a federal district court concludes that a [section] 1782 discovery order is appropriate, it should narrowly tailor its order to ensure that it serves a clear and specific evidentiary purpose in the least burdensome manner possible, as opposed to serving tactical purposes and being vague, highly intrusive, or burdensome. If district courts scrupulously follow this guidance, concerns that extending [section] 1782 to foreign arbitral proceedings will open the floodgates to U.S.-style discovery in international arbitrations should also be allayed.

5. Circumventing Foreign Proof-Gathering

Pursuant to Intel, a federal district court faced with a [section] 1782 discovery application must consider whether a request for judicial assistance under [section] 1782 seeks to "circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States." (367) As with the Supreme Court's instruction that district courts should consider the receptiveness and nature of the tribunal and the nature of the foreign proceedings (discussed above), this instruction means that district courts should ascertain the motives of the party seeking discovery pursuant to [section] 1782 and the legislative environment in which arbitration operates. District courts should in principal not grant a [section] 1782 discovery request by a party to a foreign arbitral proceeding if it appears that the request is intended to circumvent the tribunal's evidence gathering processes or the law at the parties' chosen place of arbitration. This also suggests that a district court should deny a [section] 1782 application by a party to a foreign arbitration made (a) before the arbitral tribunal even rules on disclosure issues in the arbitration or (b) after the tribunal issues a disclosure order that is narrower than the party would have liked. Conversely, district courts should be more willing to grant [section] 1782 disclosure requests made by an arbitral tribunal itself, by a party with the express consent and blessing of the tribunal, or by a party in exceptional circumstances (e.g., by a party attempting to obtain documentary evidence from a non-party to the arbitration that might be destroyed if an order is not issued promptly). Applying the Intel factors in this manner, the court in In re Babcock Borsig concluded that "[i]n a situation where the foreign tribunal restricts discovery, granting the application could undermine the statute's objective [to assist foreign tribunals in obtaining relevant and useful information]." (368) The court further concluded that it could be irresponsible to order discovery where there is "reliable evidence that the foreign tribunal would not make any use of the requested material," (369) and that judicial assistance under [section] 1782 would not be appropriate "until if and when the [arbitral tribunal] provides some affirmative indication of its receptivity to the requested materials." (370)

When this Intel factor is taken into account, a court considering a [section] 1782 discovery application in connection with foreign arbitral proceedings should only provide assistance that is in harmony with the tribunal's discretion, the timetable established in the arbitration, and the legal framework applicable to the arbitration.

B. Courts Considering [section] 1782 Discovery Requests Must Follow the Supreme Court's Precedent In Favor of Arbitration

In addition to the Intel factors discussed above, a federal district court considering a [section] 1782 application in connection with foreign arbitral proceedings must also be mindful of the strong federal policy favoring arbitration that has been enumerated by the Supreme Court and it must not do anything to undermine that policy.

In Mitsubishi Motors Corp. v. Soler-Chrysler Plymouth, the Supreme Court famously stated that Congress's strong policy in favor of arbitration applies with "special force in the field of international commerce." (371) In Scherk v. Alberto-Culver Co., the Supreme Court, upholding the validity of an international arbitration agreement, similarly wrote:
   An agreement to arbitrate before a specified tribunal is, in
   effect, a specialized kind of forum-selection clause that posits
   not only the situs of suit but also the procedure to be used in
   resolving the dispute. The invalidation of such an agreement in the
   case before us would not only allow the respondent to repudiate its
   solemn promise but would, as well, reflect a 'parochial concept
   that all disputes must be resolved under our laws and in our courts
   .... We cannot have trade and commerce in world markets and
   international waters exclusively on our terms, governed by our
   laws, and resolved in our courts.' (372)


This pro-arbitration bias means that federal district courts considering [section] 1782 requests should not grant such requests if doing so would undermine the Supreme Court's strong pro-arbitration stance. To this end, the Second Circuit's warning in NBC and the Fifth Circuit's warning in Biedermann that extending [section] 1782 to foreign arbitral proceedings could undermine the cost effectiveness and speediness of arbitrations should be heeded. (373) If district courts were to grant broad [section] 1782 applications in a wide variety of circumstances, they would risk undermining the strong federal policy in favor of arbitration. Accordingly, district courts should only grant [section] 1782 applications that are sufficiently limited in scope, and are made under sufficiently narrow circumstances, such that the use of [section] 1782 will not significantly or unnecessarily impact on the costs and timing of foreign arbitral proceedings.

As discussed in Part VII(A) above, the Supreme Court's guidance in Intel requires that [section] 1782 requests in connection with foreign arbitral proceedings only should be granted in a limited set of circumstances and should be narrowly tailored when granted. However, even if the Supreme Court had not set forth in Intel the factors that courts should consider when evaluating [section] 1782 applications, the Supreme Court's recognition of a strong federal policy in favor of international arbitration means that district courts should only grant [section] 1782 applications in connection with foreign arbitral proceedings in a limited set of circumstances and should narrowly tailor them when they are granted. Taken together, Intel and the Supreme Court's precedent in support of international arbitration provide a strong rationale for why district courts must only exercise their discretion to grant [section] 1782 applications in limited circumstances.

C. Courts Considering [section] 1782 Discovery Requests Must Take Into Account the Parties' Arbitration Agreements

In addition to the Intel factors and the strong federal policy in favor of international arbitration, a federal district court considering a [section] 1782 discovery request also must consider the parties' arbitration agreement. (374) The Supreme Court and virtually all federal circuit courts have held that arbitration agreements should, to the extent possible, be interpreted so as to give maximum effect to the parties' wishes. (375)

There are at least three ways that parties to an arbitration agreement can limit the type of discovery that can be obtained and used during an arbitration subject to the agreement.

First, the parties might include express language in their arbitration agreement that limits the type of discovery that can be obtained in connection with any arbitrations brought pursuant to the agreement. If they do this, the court should not grant a request for discovery pursuant to [section] 1782 that would undermine the parties' wishes and contractual obligations.

Second, the parties might state that their arbitration shall be governed by the rules of a particular institution, such as the ICC or the London Court of International Arbitration (the "LCIA"). If the rules of the institution limit the type of discovery available to the parties, and if the parties do not opt out of this part of the relevant institutional rules, the parties will have bound themselves to limited disclosure. For instance, the LCIA Rules state:

22.1. Unless the parties at any time agree otherwise in writing, the Arbitral Tribunal shall have the power, on the application of any party or of its own motion, but in either case only after giving the parties a reasonable opportunity to state their views ... to order any party to produce to the Arbitral Tribunal, and to the other parties for inspection, and to supply copies of, any documents or classes of documents in their possession, custody or power which the Arbitral Tribunal determines to be relevant;

22.2 By agreeing to arbitration under these Rules, the parties shall be treated as having agreed not to apply to any state court or other judicial authority for any order available from the Arbitral Tribunal under Article 22.1, except with the agreement in writing of all parties. (376)

Third, parties to an arbitration agreement can adopt rules, such as the IBA Rules, that restrict their ability to seek disclosure from national courts in conjunction with international arbitral proceedings. As discussed above, the IBA Rules state that the arbitral tribunal, rather than the parties, shall direct any requests for discovery. (377) If parties include, or incorporate by reference, provisions of this sort in their arbitration agreement, their ability to seek recourse under [section] 1782 is reduced.

An important implication of the fact that courts should consider the parties' arbitration agreement when evaluating a request for discovery pursuant to [section] 1782 is that parties who want to avoid [section] 1782 discovery can do so by inserting appropriate limiting language when drafting their arbitration agreement (or by amending their existing arbitration agreement to prohibit requests for discovery from a U.S. court pursuant to [section] 1782). A clause of this sort could be broad, such as:
   The arbitral tribunal shall have sole discretion to order the
   disclosure of documents and/or the testimony of witnesses in this
   arbitration. The parties to this arbitration shall request
   disclosure and/or witness testimony in connection with this
   arbitration solely from the arbitral tribunal.


Or it could be narrow and specifically tailored to address [section] 1782, such as:
   No party to this arbitration agreement shall request [without the
   arbitral tribunal's prior consent] that a U.S. court order
   disclosure or witness testimony pursuant to 28 U.S.C. [section]
   1782. If a party violates this provision, the arbitral tribunal
   shall not consider evidence obtained by that party's [section] 1782
   request for disclosure.


A wide variety of clauses are conceivable to meet the specific needs and requirements of parties to arbitration agreements, and parties concerned about such issues should seek the advice of experienced counsel when drafting or amending their arbitration agreements. This is particularly the case where one of the parties is an individual residing in the United States, a business entity based in the United States, or has connections to American companies or individuals that might trigger [section] 1782 discovery requests if an arbitration is commenced. (378) With proper planning, arbitration provisions can be drafted to help parties effectuate their intentions, and courts considering [section] 1782 applications always should consider any such provisions.

D. Summary of How [section] 1782 Should Be Applied In Connection With Foreign Arbitral Proceedings

The factors discussed in Parts VII(A)-(C) above provide a detailed framework for when and how federal district courts should exercise their discretion to grant discovery requests pursuant to [section] 1782 in connection with foreign arbitral proceedings. Under this normative framework, courts considering [section] 1782 applications made in connection with foreign arbitral proceedings must evaluate a number of factors to determine whether a request for disclosure pursuant to [section] 1782 should be granted.

As explained in Parts VII(A)-(C) above, the following factors weigh in favor of granting a [section] 1782 discovery request made in connection with a foreign arbitral proceeding:

* The arbitral tribunal itself requests the discovery;

* The arbitral tribunal expresses is receptivity to the discovery;

* The party from whom discovery is requested is not a party to the foreign arbitral proceeding;

* The discovery request does not undermine the rules applicable to the foreign arbitral proceeding (e.g., rules giving the arbitrators sole control over discovery);

* The request for discovery is made at an appropriate stage in the arbitral proceeding (e.g., not before proceedings are commenced, so as to interfere with the parties' multitiered arbitration procedures or to prejudice the tribunal's orders);

* The request for discovery does not interfere with or jeopardize the tribunal's directions and is respectful of the established timetable in the arbitration;

* The discovery request is made for the purpose of obtaining evidence that would otherwise be unavailable, rather than for strategic or tactical purposes (e.g., to increase costs and compel a settlement);

* The discovery request is narrowly tailored and is not a U.S.-style "fishing expedition";

* Granting the discovery request will not significantly impact the costs and timing of the foreign arbitral proceeding and will not dissuade parties from using international arbitration as a dispute resolution mechanism in the future; and

* The discovery request does not contradict any provision of the parties' arbitration agreement.

Conversely, as explained in Parts VII(A)-(C) above, the following factors weigh against granting a [section] 1782 discovery request made in connection with a foreign arbitral proceeding:

* The arbitral tribunal is unreceptive to judicial assistance;

* A party to the arbitration requests the discovery without the tribunal's consent, as opposed to the arbitral tribunal itself making the request;

* The party from whom discovery is requested is a party to the foreign arbitral proceeding;

* The discovery request undermines the rules applicable to the foreign arbitral proceeding (e.g., rules giving the arbitrators sole control over discovery);

* The request for discovery is made at an inauspicious stage in the arbitral proceedings (e.g., before proceedings are commenced, so as to interfere with the parties' multitiered arbitration procedures or to prejudice the tribunal's orders);

* The discovery request is made for strategic or tactical purposes (e.g., to increase costs and compel a settlement);

* The discovery request is broad and not narrowly tailored;

* Granting the discovery request would significantly increase the costs and duration of the foreign arbitral proceeding and might dissuade parties from using international arbitration as a dispute resolution mechanism in the future; and

* The discovery request contradicts a provision of the parties' arbitration agreement (e.g., a provision prohibiting discovery or vesting the arbitrators with the sole authority to order discovery).

Applying these factors set forth above to specific examples should be relatively easy in most cases. Consider, for instance, the following two examples:

Example 1--Party X (French) has entered into a contract with Party Y (U.S.). The contract contains a multitiered dispute resolution clause that ultimately provides for ICC arbitration in Sweden, states that the IBA Rules shall apply to any such arbitration, and vests the arbitral

tribunal with sole authority to order disclosure in connection with the arbitration. Before commencing an arbitration or entering into the negotiations required by the multitiered dispute resolution clause, Party X files an ex parte request for discovery pursuant to [section] 1782, asking for an order compelling Party Y to turn over all documents in Party Y's possession that might bear on Party X's business, any similar businesses, and/or on any products made by (or services offered by) Party Y.

Example 2--Instead of filing a [section] 1782 request for discovery, Party X fulfills the terms of the agreement's multitiered dispute resolution clause and then commences an arbitration against Party Y. At the completion of the arbitration's disclosure phase, it becomes clear that key documents regarding a business unit of Party Y were not disclosed in the arbitration and are in the possession of Party Z (a non-party to the arbitration). Accordingly, the arbitral tribunal--pursuant to the powers vested in it by the ICC Rules, the IBA Rules, and the parties' arbitration agreement--files a [section] 1782 request for discovery, asking for a narrow category of key documents from Party Z.

Applying the factors set forth above, it is clear that the court should deny Party X's [section] 1782 application in Example 1 but grant the arbitral tribunal's request in Example 2. If the court were to grant the application in Example 1, it would be granting the request (a) of a party to the arbitration, (b) for an overly broad category of documents, (c) in disregard of the parties' arbitration clause, (d) in disregard of the rules applicable to an arbitration between Party X and Party Y, and (e) at an inauspicious time in the proceedings between Party X and Party Y. As such, it would--at a minimum--have disregarded the Supreme Court's guidance in Intel and the language of the parties' arbitration agreement, and it should expect its decision to be overturned on appeal. In Example 2, however, these problems do not exist, opening the door for the district court to exercise its discretion to grant the [section] 1782 application.

There inevitably will be difficult [section] 1782 cases that fall into the gray area between requests that should clearly be denied and those that should be granted. Nevertheless, under our normative framework, [section] 1782 requests will only be granted in limited situations and for narrowly tailored requests. Accordingly, concerns about extending [section] 1782's scope to cover discovery in connection with foreign arbitral proceedings are likely to be misplaced.

VIII. AN EXPLANATION OF THE SPARING USE OF [section] 1782 IN FOREIGN ARBITRAL PROCEEDINGS

In light of the requirements set forth in Part VII above for when [section] 1782 can be extended to cover foreign arbitral proceedings, we believe that there are three primary reasons for why [section] 1782 has been used relatively sparingly in the recent past.

First, sophisticated lawyers practicing in the area of international arbitration likely are aware of the factors set forth in Intel for a successful [section] 1782 application, and they realize that, for the reasons discussed above, it is likely that [section] 1782 only will be extended to foreign arbitral proceedings in very limited circumstances. Accordingly, they have concluded that, notwithstanding the initial hype surrounding the expansion of [section] 1782's scope to foreign arbitral proceedings, the actual effects of such an expansion are limited. In addition, the fact that federal appellate courts are only beginning to address the applicability of [section] 1782 to foreign arbitral proceedings means that U.S. case law regarding this issue remains unsettled. Thus, parties requesting discovery under [section] 1782 could face lengthy court battles regarding this issue until it is resolved once and for all. For all of these reasons, requesting discovery under [section] 1782 in connection with foreign arbitral proceedings may be unattractive to attorneys and their clients.

Second, from a practical standpoint, counsel in international arbitral proceedings may be reticent to request discovery under [section] 1782 because they do not want to irritate the arbitrators in their cases. Even if parties to international arbitral proceedings are not prohibited from seeking discovery under [section] 1782 (e.g., by the language of their arbitration agreement or their choice of arbitral institution), they might be reluctant to do anything that would appear to circumvent the authority of the arbitrators. If, for instance, a party to an international arbitration commences national court proceedings to obtain documents for use in the arbitration without first requesting the tribunal's assistance in obtaining the documents or its permission to approach a national court, the tribunal might be displeased by the party's circumvention of it, unless genuine exigencies justified urgent national court action. Similarly, if a party asks an arbitral tribunal to order the disclosure of documents and the tribunal denies the request (e.g., because it does not think the documents in question are relevant to the arbitration), the tribunal likely would find it disagreeable if the requesting party then went to a national court in an effort to obtain those same documents for use in the arbitration, in contravention of the tribunal's wishes. In light of these sorts of concerns, parties to international arbitral proceedings are well advised to be sensitive to the tribunal's wishes and perceived authority.

Third, the language of many parties' arbitration agreements prohibits them from turning to U.S. courts under [section] 1782 for help in obtaining documents for use in foreign arbitral proceedings. For instance, parties selecting the LCIA Rules or the IBA Rules are, for the reasons explained above, (379) prima facie unable to request assistance under [section] 1782 because they have delegated exclusive authority regarding such matters to the arbitrators. In addition, bespoke language in arbitration agreements limiting discovery can also constrain a party's ability to seek assistance from a U.S. court under [section] 1782.

In light of these reasons, relatively few requests for discovery have been filed pursuant to [section] 1782 since Intel was decided, and this trend is likely to continue in the future, irrespective of whether or not the Supreme Court conclusively establishes that foreign arbitral proceedings fall within the scope of [section] 1782.

IX. CONCLUSION

Recent court decisions on extending the scope of [section] 1782 to cover discovery requests in connection with foreign arbitral proceedings have created uncertainty about the proper use of this statute and its effects. The fact that relatively few requests for disclosure have been made under [section] 1782, however, suggests that things are not as uncertain as they might seem. For the reasons set forth above, when [section] 1782 is interpreted in connection with controlling Supreme Court precedent and parties' arbitration agreements, [section] 1782 is not nearly as threatening as it initially might appear, as parties only will be able to rely on it in limited circumstances.

We expect that, within the next few years, courts in the United States-including federal appellate courts and possibly the U.S. Supreme Court--will clarify further the extent to which [section] 1782 discovery requests should be granted in connection with foreign arbitral proceedings. Likewise, we expect courts that extend [section] 1782 to foreign arbitral proceedings to rigorously apply the factors set forth in Intel to their deliberations about particular requests for disclosure, to always keep in mind the Supreme Court and Congress's strong pro-arbitration stance, and to scrupulously enforce the terms of parties' arbitration agreements, as set forth in Part VII above.

Until this happens, it is unlikely that U.S.-style discovery will become commonplace with respect to foreign arbitral proceedings. Parties that are worried about the effects of extending the scope of [section] 1782 should, however, obtain advice from experienced counsel about how to proceed while the scope of [section] 1782 is still being clarified, as should parties who wish to deploy [section] 1782 to their advantage.

If the approach to [section] 1782 set forth in this article is adopted, and if U.S. courts ultimately conclude that foreign arbitral proceedings fall within the scope of [section] 1782--as we believe they should--this statute will emerge as a limited, albeit useful, tool in connection with foreign arbitral proceedings, rather than as a harbinger of a new era of U.S. court interference in the international arbitration arena.

(1) In re Roz Trading Ltd., 469 F. Supp. 2d 1221 (N.D. Ga. 2006); In re Oxus Gold, No. MISC. 06-82, 2006 WL 2927615, at *1 (D.N.J. Oct. 11, 2006).

(2) See In re Medway Power Ltd., 985 F. Supp. 402 (S.D.N.Y. 1997). In Medway, Judge Duffy held "that an arbitration is not a tribunal for the purposes of Section 1782. Congress intended this statute to assist official, governmental bodies exercising an adjudicatory function." Id. at 403. See also Nat.'l Broad. Co. v. Bear Steams & Co., 165 F.3d 184 (2d Cir. 1999); Republic of Kazakhstan v. Biedermann Int'l, 168 F.3d 880 (5th Cir. 1999).

(3) See infra note 316 For discussions of the potential drawbacks to the use of American-style discovery within international commercial arbitration, see GARY B. BORN, INTERNATIONAL COMMERCIAL ARBITRATION 1905-08 (2009) ("Disclosure [or discovery] is also almost inevitably neither fast nor cheap--two characteristics that are inconsistent with the aspirations of the arbitral process. Moreover, parties often agree to arbitration, and its confidentiality, with the expectation that it will not involve broad discovery like that in some national courts. Finally, uncertainties concerning the scope of an arbitrator's authority to order disclosure and the difficulties sometimes encountered in enforcing discovery orders, persuade some arbitrators that requiring extensive disclosure is more trouble than it is worth."); NIGEL BLACKABY, CONSTANTINE PARTASIDES, ALAN REDFERN & MARTIN HUNTER, REDFERN AND HUNTER ON INTERNATIONAL ARBITRATION [paragraph][paragraph] 1.115-1.117 (5th ed. 2009) ("The problem [of the increasing 'judicialisation' of international arbitration] seems to be most stark in the United States, where there is a tradition of broad-ranging 'discovery,' as well as the possibility of challenging arbitral decisions. The US practice of 'discovery' ... o describes a process of seeking out and collecting pre-trial evidence.... In a major arbitration, the task of tracing and assembling these documents may take months and cost considerable sums of money, with phrases such as 'warehouse discovery' only palely reflecting the scope of the work to be done. Since 'documents' include e-mails and other electronically stored information (ESI), the time and money involved in tracing and assembling the relevant material has increased dramatically. One US lawyer summed up the position in an article whose title says it all: 'How the Creep of United States Litigation- Style Discovery and Appellate Rights Affects the Efficiency and Cost-Efficacy of Arbitration in the United States.'"); Andreas F. Lowenfeld, Discovery Across National Frontiers, in INTERNATIONAL LITIGATION AND THE QUEST FOR REASONABLENESS: ESSAYS IN PRIVATE INTERNATIONAL LAW 137 (1996) ("[N]o aspect of international litigation has caused as much friction as the issue of discovery ....

IT]he controversy over discovery is not one pitting the common law against the civil law, but rather one pitting the United States of America against the rest of the world."); Javier H. Rubinstein, International Commercial Arbitration: Reflections at the Crossroads of the Common Law and Civil Law Traditions, 5 CHI. J. INT'L L. 303,304 (2005) ("It is difficult to overstate the horror with which parties and counsel outside the United States view the prospect of American-style discovery, with parties able to serve upon one another sweeping requests for production of documents and other information relevant to the litigation, and to obtain oral deposition testimony of witnesses in advance of trial. In civil law countries, such discovery is rarely permitted, and is viewed by many as an affront to the expectations of privacy and confidentiality that private parties have in their business information. Foreign parties doing business in the United States often insist on arbitration clauses in their agreements precisely to avoid the prospect of discovery and the other risks of litigation in the United States."); Hans Smit, Towards Greater Efficiency in Document Production before Arbitral Tribunals--A North American Viewpoint, in ICC, Document Production in International Arbitration 93 (ICC Ct. Bull. Spec. Supp. 2006) ("'Discovery,' in the US sense, is a dirty word in international arbitration.").

(4) Intel v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004).

(5) See infra pp. 100-102.

(6) See infra pp. 102-104.

(7) In re Roz Trading Ltd., 469 F. Supp. 2d 1221 (N.D. Ga. 2006).

(8) In re Oxus Gold PLC, No. MISC. 06-82, 2006 WL 2927615 (D.N.J. 2006).

(9) In re Hallmark Capital Corp., 534 F. Supp. 2d 951 (D. Minn. 2007).

(10) In re Babcock Borsig AG, 583 F. Supp. 2d 233 (D. Mass. 2008).

(11) La Comision Ejecutiva Hidroelecctrica Del Rio Lempa v. E1 Paso Corp., 617 F. Supp. 2d 481 (S.D. Tex. 2008) [hereinafter E1 Paso I]; El Paso Corp. v. La Comision Ejecutiva Hidroelectrica Del Rio Lempa, 341 F. App'x 821 (5th Cir. 2009) [hereinafter El Paso II]; Comision Ejecutiva, Hidroelectrica Del Rio Lempa v. Nejapa Power Co., 2008 U.S. Dist. Lexis 90290 (D. Del. Oct. 14, 2008) [hereinafter Nejapa/]; Comision Ejecutiva Hidroeleetrica Del Rio Lempa v. Nejapa Power Co., D.C. Civil No. 1-08-mc-000135 (3d Cir. Aug. 3, 2009) [hereinafter Nejapa II].

(12) In re Norfolk Southern Corp. 626 F. Supp. 2d 882 (N.D. I11. 2009).

(13) In re Operadora DB Mexico, S.A. DE C.V., Nos. 6:09-cv-383-Orl-22GJK, 6:08- mc-136-Orl22GJK, 2009 WL 2435750 (M.D. Fla. May 28, 2009) [hereinafter Operadora I; In re Operadora DB Mexico, S.A. DE C.V., No. 6:09-cv-383-Orl-22GJK, 2009 WL 2423138 (M.D. Fla. Aug. 4, 2009) [hereinafter Operadora I1].

(14) OJSC Ukrnafta v. Carpatsky Petroleum Corp., No. 3:09 MC 265(JBA), 2009 WL 2877156, at (D. Conn. Aug. 27, 2009).

(15) In re Winning (HK) Shipping Co., No. 09-22659-MC, 2010 WL 1796579 (S.D. Fla. Apr. 30, 2010).

(16) In re Chevron, 2010 709 F.Supp.2d 283 (S.D.N.Y. 2010).

(17) In re Caratube Int'l Oil Co., 730 F. Supp. 2d 101 (D.D.C. 2010).

(18) Chevron Corp. v. Charles Camp, Nos. l:10mc 27, 1:10mc28, 2010 WL 3418394 (W.D.N.C. Aug. 30, 2010).

(19) Chevron v. Stratus Consulting, Inc., No. 10-cv-00047-JLK (D.Col. March 4, 2010); In re Chevron, No. l:I0-MI-0076-TWT-GGB (N.D. Ga. March 2, 2010); Chevron v. E-Tech Int'l, No. 10cv1146-IEG(WMc) (S.D. Cal. September 10, 2010); In re Chevron, No. 10- 2675(SRC) (D.N.J. June 11 2010); Chevron v. Mark Quarles, No. 3:10-ev-00686 (M.D. Tn. Aug. 17, 2010).

(20) See Act of March 2, 1855, ch. 140, [section] 2, l0 Stat. 630 (1855). interestingly enough, the catalyst for this early codification emerged as a result of a perceived gap in U.S. law. As Okezie Chukwumerije explains in his 2005 article, "in 1854 the French Government sent a letter rogatory to the U.S. State Department requesting the deposition of witnesses who were residents of New York. Perhaps unaware that some U.S. courts had previously utilized the letter rogatory process to aid foreign litigation, the U.S. attorney general concluded that there was no formal process by which the courts could compel an unwilling witness to testify pursuant to a letter rogatory." Okezie Chukwumerije, International Judicial Assistance: Revitalizing Section 1782, 37 GEO. WASH. INT'L L. REV. 649, 654 (2005). See also Mousa Zalta, Recent Interpretation of 28 U.S.C. [section] 1782(a) by the Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc.: The Effects on Federal District Courts, Domestic Litigants, and Foreign Tribunals and Litigants, 17 PACE INT'L L. REV. 413,416-17 (2005).

(21) See Act of March 2, 1855, ch. 140, [section] 2, 10 Stat. 630 (1855). In 1854, the French government requested, via letters rogatory to the U.S. Department of State, that depositions of certain individuals living in New York be conducted. The U.S. Attorney General concluded that no process existed by which letters rogatory could be used to compel depositions of unwilling American witnesses. In response, the Act of March 2, 1855 was drafted. See also Chukwumerije, International Judicial Assistance, supra note 20, at 654.

(22) Id.

(23) Harry Leroy Jones, International Judicial Assistance: Procedural Chaos and a Program for Reform, 62 YALE L.J. 515,540 (1953).

(24) Chukwumeriji, International Judicial Assistance, supra note 20, at 655, n.30 (stating "It]he Act was indexed in the Statutes at Large only under the heading 'Mistrials.')

(25) See Zalta, Recent Interpretation, supra note 20, at 417; Chukwumeriji, International Judicial Assistance, supra note 20, at 655.

(26) Act of Mar. 3, 1863, ch. 95,[section] 1, 12Stat. 769(1863).

(27) Id.

(28) Id.

(29) Id.

(30) Id.

(31) Kenneth R. Adamo, Robert L. Canada, & Susan M. Gerber, Section 1782--A Powerful Tool for Obtaining Discovery to Assist Foreign Litigation, 33 AIPLA Q.J. 337, 340 (2005) (noting that the 1863 amendment allowed for the testimony of any witness residing in the United States. The author further notes that the testimony of the sought-after witness could be used in any suit for the recovery of money or property pending in any country not at war with the United States, provided that that same foreign country has an interest in the suit.).

(32) Chukwumeriji, International Judicial Assistance, supra note 20, at 655 (referring to Walter B. Stahr, Discovery Under 28 U.S.C. [section] 1782for Foreign and International Proceedings, 30 VA. J. INT'L L. 597, 602 (1990)).

(33) See In re Letter Rogatory from Justice Court, Dist. of Montreal, Canada, 523 F.2d 562, 565 n.5 (6'h Cir. 1975):
   In 1877 Congress enacted language virtually identical to that used
   in 1855 and appended it to Revised Statutes [section] 875. It
   apparently was intended to be a reciprocal provision providing
   assistance to foreign governments in cases in which they were
   parties or had an interest. However, at the same time Revised
   Statutes [section][section] 4071-73, drawn from a portion of the
   1863 enactment, set forth apparently more limited circumstances in
   which a foreign government could seek the aid of the United States
   courts; i. e. suits involving money or property in which the
   foreign nation was a party or had an interest. These two sets of
   statutes remained separate until 1948 when they were revised and
   consolidated at 28 U.S.C. [section] 1781 et seq.


(34) Act of June 25, 1948, Pub. L. No. 80-773, ch. 646, [section] 1782, 62 Star. 869, 949 (1948)

(35) Id.

(36) Act of May 24, 1949, Pub. L. No. 81-72, ch. 139, [section] 93, 63 Stat. 89 (1949).

(37) Id.

(38) Id.

(39) Congress, in 1958, created the Commission on International Rules of Judicial Procedure to "investigate and study existing practices of judicial assistance and cooperation between the United States and foreign countries with a view to achieving improvements." Act of Sept. 2, 1958, Pub. L. No. 85-906, [section] 2, 72 Stat. 1743 (1958).

(40) See, e.g., Zalta, Recent Interpretation, supra note 20, at 417-18.

(41) Commission on International Rules of Judicial Procedure--Establishment, 1958 U.S.C.C.A.N. 5201.

(42) See S. REP. NO. 88-1580, at 7 (1964), reprinted in 1964 U.S.C.C.A.N. 3782, 3788.

(43) Id.

(44) The 1964 amendment remains largely intact today and has only been amended once since, in 1996. The 1996 amendment made only one significant change, namely "including criminal investigations conducted before formal accusation" into the scope of proceedings covered by the statute. National Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 104-06, [section] 1342(b), 110 Stat. 186, 486 (1996).

(45) Act of Oct. 3, 1964, Pub. L. No. 88-619, [section] 9, 78 Stat. 995 (1964).

(46) Act of May 24, 1949, Pub. L. No. 81-72, ch. 139, [section] 93, 63 Stat. 89 (1949).

(47) 28 U.S.C. [section] 1782(a).

(48) Id.

(49) Id.

(50) Id.

(51) Id.

(52) Id. See also Act of June 25, 1948, Pub. L. No. 80-773, ch. 646, [section] 1782, 62 Star. 869, 949 (1948).

(53) See In re Medway Power Ltd., 985 F.Supp. 402 (S.D.N.Y. 1997). In Medway, Judge Dully held:
   that an arbitration is not a tribunal for the purposes of Section
   1782. Congress intended this statute to assist official,
   governmental bodies exercising an adjudicatory function. The
   legislative history of Section 1782 does not suggest an intent to
   encompass unofficial, private arbitrations--which Congress and the
   courts have consistently treated as creatures of a contract which a
   court should enforce just like any other obligation imposed by
   private agreement. 'Arbitration differs critically from litigation
   in that arbitrators are not officials of foreign sovereign
   governments, but private persons tested with their decision-making
   authority most commonly as a result of private parties entering
   into contractual arrangements for the private resolution of
   disputes.'


Id. at 403 (citing Lawrence W. Newman & Rafael Castilla, Production of Evidence through U.S. Courts for Use in International Arbitration, 9 J. INT'L ARB. 61, 69 (1992)). Though the general "rule" prior to 2004 was that [section] 1782 did not apply to international commercial arbitrations, one early district court decision stated that a private international arbitral tribunal would indeed fall within the definition of "tribunal" under [section] 1782. This comment, however, was made in dicta and did not form part of the holding. See In re Technostroyexport, 853 F.Supp. 695 (S.D.N.Y. 1994). See also Nat'l Broad. Co.. v. Bear Steams & Co., 165 F.3d 184 (2d Cir. 1999); Republic of Kazakhstan v. Biedermann Int'l, 168 F.3d 880 (5th Cir. 1999).

(54) Nat'l Broad. Co. v. Bear Stearns & Co., 165 F.3d 184 (2nd Cir. 1999).

(55) Republic of Kazakhstan v. Biedermann Int'l, 168 F.3d 880 (5th Cir. 1999).

(56) Intel v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004).

(57) Federal Arbitration Act, 9 U.S.C. [section] 7. The FAA only permits arbitral tribunals to request judicial assistance from U.S. federal courts: "The arbitrators selected either as prescribed in this title or otherwise, or a majority of them, may summon in writing any person to attend before them or any of them as a witness and in a proper case to bring with him or them any book, record, document, or paper which may be deemed material as evidence in the case. The fees for such attendance shall be the same as the fees for witnesses before masters of the United States courts. Said summons shall issue in the name of the arbitrator or arbitrators, or a majority of them, and shall be signed by the arbitrators, or a majority of them, and shall be directed to the said person and shall be served in the same manner as subpoenas to appear and testify before the court; if any person or persons so summoned to testify shall refuse or neglect to obey said summons, upon petition in the United States district court for the district in which such arbitrators, or a majority of them are sitting may compel the attendance of such person or persons before said arbitrator or arbitrators, or punish said person or persons for contempt in the same manner provided by law for securing the attendance of witnesses or their punishment for neglect or refusal to attend in the courts of the United States." Id.

(58) Nat'l Broad. Co. v. Bear Steams & Co., 165 F.3d 184 (2d Cir. 1999).

(59) Id. at 186.

(60) Id.

(61) Id.

(62) Id.

(63) Id.

(64) Id. at 188-89. Under Second Circuit precedent, where the language of a statute is ambiguous, the court must look to the purpose of the statute. See id. at 188 (citing Castellano v. City of New York, 142 F.3d 58, 67 (2d Cir. 1998) ("Where the language is ambiguous, we focus upon the broader context and primary purpose of the statute.") (internal quotation marks and citations omitted)).

(65) Id. at 189.

(66) Id (quoting H.R.REP. NO. 88-1052, at 9 (1963); S.REP. No. 88-1580 (1964), reprinted in 1964 U.S.C.C.A.N. 3782, 3788).

(67) Id. at 190 (citing Hans Smit, Assistance Rendered by the United States in Proceedings Before International Tribunals, 62 COLUM. L. REV. 1264, 1267 n. 18 (1962)).

(68) Id. at 190.

(69) Id. at 190-91.

(70) Id.

(71) Id. at 191.

(72) Republic of Kazakhstan v. Biedermann Int'l, 168 F.3d 880 (5th Cir. 1999).

(73) Id. at 882.

(74) Id. at 882-83.

(75) Id. at 883.

(76) Id.

(77) Id.

(78) Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004).

(79) Id. at 250.

(80) Id.; see also Intergraph Corp. v. Intel Corp., 3 F. Supp. 2d 1255 (N.D. Ala. 1998).

(81) Intel, 542 U.S. 241, at 251.

(82) Id. at 252.

(83) Id.

(84) Id. at 252-53.

(85) Id. at 242.

(86) Id. at 255.

(87) Id. at 258.

(88) Id. (citing S. REP. NO. 1580, at 7-8, reprinted in 1964 U.S.S.C.A.N. 3782, 378).

(89) Id. (citing Hans Smit, International Litigation Under the United States Code, 65 COLUM.L. REV. 1015, 1026-1027, and nn. 71, 73 (1965)).

(90) Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 258 (2004).

(91) Id. at 259.

(92) Id. at 259-62.

(93) Id. at 263.

(94) Id. at 264.

(95) Id.

(96) Id.

(97) Id.

(98) Id.

(99) Id. at 264-65.

(100) Id. at 265.

(101) See Okezie Chukwumerije, International Judicial Assistance: Revitalizing Section 1782, 37 GEO. WASH. INT'L L. REV. 649 (2005); Barry H. Garfinkel & Yuval M. Miller, The Supreme Court's Reasoning in Intel Calls into Question Circuit Court Rulings on Inapplicability of 28 U.S.C. [section]1782 to International Commercial Arbitration, 19(8) MEALEY'S INT'L ARB. REP. 17, 25 (2004); Daniel A. Losk, Section 1782(A) After Intel: Reconciling Policy Considerations and a Proposed Framework to Extend Judicial Assistance to International Arbitral Tribunals, 27 CARDOZO L. REV. 1035 (2005); Hans Smit, The Supreme Court Rules on the Proper Interpretation of Section 1782: Its Potential Significance for International Arbitration, 14 AM. REV. INT'L ARB. 295, 331-332 (2004); E. Morgan Boeing, Majority and Dissent in Intel: Approaches to Limiting International Judicial Assistance, 29 HASTINGS INT'L & COMP. L. REV. 381 (2006); Richard A. Rothman, Intel Corp. v. Advanced Micro Devices Inc. Exporting U.S. Discovery Abroad: Risks, Rewards & Ramifications, 51 DEC. FED. LAW 20 (2004); Roger J. Johns & Anne Keaty, The New and Improved and Improved Section 1782: Supercharging Federal District Court Discovery Assistance to Foreign & International Tribunals, 29 AM. J. TRIAL ADVOC. 649 (2006); Mousa Zalta, Recent Interpretation of 28 U.S.C. [section] 1782(a) by the Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc.: The Effects on Federal District Courts, Domestic Litigants, and Foreign Tribunals and Litigants, 17 PACE INT'L L. REV. 413, 416-17 (2005).

(102) In re Oxus Gold PLC, No. MISC. 06-82, 2006 WL 2927615, at * 1 (D.N.J. Oct. 11, 2006).

(103) In re Roz Trading Ltd., 469 F. Supp. 2d 1221, 1222 (N.D. Ga. 2006); In re Hallmark Capital Corp., 534 F. Supp. 2d 951 (D. Minn. 2007).

(104) In re Babcock Borsig AG, 583 F. Supp. 2d 233 (D. Mass.).

(105) El Paso I, 617 F. Supp. 2d 481 (S.D. Tex. 2008).

(106) In re Norfolk Southern Corp., (No. 09 C3092) 626 F. Supp. 2d 882 (N.D. Ill. 2009); El Paso I, 617 F. Supp. 2d 481 (S.D. Tex. 2008); In re Operadora I, 2009 WL 2435750 (M.D. Fla. May 28, 2009). See also In re Caratube Int'l Oil Co., 730 F. Supp. 2d 101 (D.D.C. 2010) (reserving judgment on whether the private arbitral tribunal qualified as a tribunal under [section] 1782 but denying the application under [section] 1782 nonetheless based on the discretionary factors set forth in Intel).

(107) In re Oxus Gold PLC, No. MISC. 06-82, 2006 WL 2927615, at * 1 (D.N.J. Oct. 11, 2006).

(108) Id.

(109) Id..

(110) Id. at * 2.

(111) Id.

(112) Id.

(113) Id.

(114) Id. at * 3.

(115) Id. at * 3.

(116) Id. at * 5-6.

(117) Id. at * 5 (citing Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 249 (2004)).

(118) In re Oxus Gold PLC, No. MISC. 06-82, 2006 WL 2927615, at * 6 (D. N.J. Oct. 11, 2006).

(119) Id. The UNCITRAL Rules are a set of procedural rules that parties may use to govern the conduct of arbitral proceedings arising out of a purely commercial relationship. Arbitrations pursuant to these rules are not administered by any United Nations body and are often ad hoc proceedings between private parties.

(120) In re Roz Trading Ltd., 469 F. Supp. 2d 1221 (N.D. Ga. 2006).

(121) Id. at 1222.

(122) Id.

(123) Id.

(124) Id. at 1222-23.

(125) Id. at 1223 n.2.

(126) Id. at 1223.

(127) Id.

(128) Id.

(129) Id. at 1224.

(130) Id. at 1224-25.

(131) Id. at 1224-25.

(132) Id. at 1225-26.

(133) Id. at 1226.

(134) Id.

(135) Id at 1226 n.3.

(136) Id. at 1227-28.

(137) Id. at 1229.

(138) Id. at 1231. The court only compelled the disclosure of such documents if they related to the joint venture or were communications with the Respondents or members of the joint venture concerning Roz's expulsion from Uzbekistan.

(139) In re Hallmark Capital Corp., 534 F. Supp. 2d 951 (D. Minn. 2007).

(140) Id.

(141) Id. at 954 (quoting In re Roz Trading Ltd., 469 F. Supp. 2d 1221, 1226 n.3 (N.D. Ga. 2006)).

(142) Id. at 955.

(143) Id .at 957.

(144) Id.

(145) Id. at 957-58.

(146) Id.

(147) In re Babcock Borsig AG, 583 F. Supp. 2d 233, 235 (D. Mass. 2008).

(148) Id. at 235-36.

(149) Id. at 237-40.

(150) Id.

(151) Id. at 240.

(152) Id. at 241.

(153) Id.

(154) Id.

(155) Id.

(156) El Paso I, 617 F. Supp. 2d 481, 482 (S.D. Tex. 2008)..

(157) El Paso II, 341 F. App'x 31, 32 (5th Cir. 2009). Though we are discussing the decision of the U.S. District Court, the district court's decision does not outline the factual scenario required for the present survey. As such, we cite the appellate decision in support of factual statements, and will cite the district court decision where possible. Likewise, certain facts regarding the background of the dispute are only mentioned in the [section] 1782 request filed in Delaware for assistance in the same private international arbitration. Therefore, we cite from the Delaware district court decision and the Third Circuit unpublished opinion where necessary. See Nejapa I, C.A. No. 08-135-GMS, 2008 U.S. Dist. LEXIS 90290 (D. Del. Oct. 14, 2008); Nejapa II, 341 F. App'x 821 (3d Cir. 2009).

(158) Nejapa II, at 822.

(159) Id.

(160) Id. A consent award is an award that memorializes some, or all, of the terms of the parties' negotiated settlement. Arbitral consent awards are attractive to parties that settle an arbitral dispute because a consent award may be capable of being enforced as an award rather than requiring a suit for breach of contract if one party fails to comply with the settlement.

(161) Id.

(162) Id.

(163) Id.

(164) Nejapa II, 341 F. App'x 821, 823 n.1 (3d Cir. 2009).

(165) El Paso I, 617 F. Supp. 2d 481, 482 (S.D. Tex. 2008).

(166) Id. at 482. Robert Hart, an employee of El Paso Corp. who was subject to one of the subpoenas at issue, also filed a motion for reconsideration of Judge Harmon's order. See id.

(167) Id. at 483.

(168) Id. at 483-88.

(169) Id. at 485.

(170) Id. at 485.

(171) El Paso II, 341 F. App'x 31, 31 (5th Cir. 2009).

(172) Id. at 32.

(173) Id. at 33.

(174) Id.

(175) Id. at 34.

(176) Id.

(177) El Paso II, 341 F. App'x 31, 34 (5th Cir. 2009).

(178) Id.

(179) Id. ("Because we cannot overrule the decision of a prior panel unless such overruling is unequivocally directed by controlling Supreme Court precedent, we remain bound by our holding in Biedermann.").

(180) Nejapa I, C.A. No. 08-135-GMS, 2008 U.S. Dist. LEXIS 90290, at * 1 (D. Del. Oct. 14, 2008).

(181) Id.

(182) Nejapa II, 341 F. App'x 821, 822 (3d Cir. 2009).

(183) Id.

(184) Id at 825.

(185) Id. at 827-28.

(186) In re Norfolk Southern Corp., 626 F. Supp. 2d 882 (N.D. Ill. 2009).

(187) Id.

(188) Id. at 883.

(189) Id.

(190) Id. at 884.

(191) In re Norfolk Southern Corp., 626 F. Supp. 2d 882, 884 (N.D. Ill. 2009). (quoting Republic of Kazakhstan v. Biedermann Int'l, 168 F.3d 880, 881-882 (5th Cir. 1999)).

(192) Id.

(193) Id.

(194) Id. at 885.

(195) Id.

(196) Judge Bucklo's analysis here has been described as "perplexing" and "in the end the distinction she made was arbitrary and does not reflect a full understanding of UNCITRAL or international arbitration." See Uzma Balkiss Sulaiman, US judge refuses to compel testimony under section 1782, GLOBAL ARB. REV (July 27 2009) (quoting Mark Beckett of Latham & Watkins LLP). As Mr. Beckett rightly states, "UNICTRAL does not conduct arbitrations!"

(197) In re Norfolk Southern Corp., 626 F. Supp. 2d at 885.

(198) Id.

(199) Id. at 886.

(200) Id. Norfolk Southern, however, filed an appeal, briefs were circulated, and the parties even presented oral arguments to the Seventh Circuit Court of Appeals. Before the court issued an opinion, the parties jointly withdrew the case. The oral arguments in the Seventh Circuit are available online at the Seventh Circuit Court of Appeals' website under case number 09-2609, available at: http://www.ca7.uscourts.gov/fdocs/docs.fwx?dname=arg.

(201) In re Operadora I, 2009 WL 2435750 (M.D. Fla. May 28, 2009).

(202) Id at * 1.

(203) Id.

(204) Id.

(205) Id.

(206) Id. at * 1-5.

(207) Id. at * 6.

(208) Id. at * 7.

(209) Id. at * 9 (quoting Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241. 258 (2004).).

(210) Id. at * 9 (quoting Intel, 542 U.S. at 265).

(211) Id. at * 12.

(212) In re Operadora II, No. 6:09-cv-383-Orl-22GJK, 2009 WL 2423138, at * 1 (M.D. Fla. Aug. 4, 2009).

(213) Id. at * 3.

(214) Id.

(215) Id. at * 3-7.

(216) Id. at * 3.

(217) Id. (citing Nat'l Broad. Co. v. Bear Stearns & Co., Inc., 165 F.3d 184 (2d Cir. 1998) and Republic of Kazakhstan v. Biedermann Int'l, 168 F.3d 880 (5th Cir. 1999)).

(218) Id. ("In NBC, the Second Circuit found that the scope of the term 'foreign or international tribunal' is ambiguous because it does not plainly include or exclude private tribunals."); Id. at * 4 ("In Biedermann, the Fifth Circuit also held that a private arbitral proceeding is not a foreign or international tribunal under [section] 1782. The court agreed with the NBC court, finding that the term 'foreign or international tribunal' is ambiguous.").

(219) Id at * 4.

(220) Id. at * 6.

(221) Id. at * 8 (citingNBC, 165 F.3dat 188).

(222) Id.

(223) Id. at * 7.

(224) Id. at * 9 (quoting NBC, 165 F.3d at 189).

(225) Id..

(226) Id.

(227) Id. For instance, she opined that: (i) "the ICC Panel features an independent arbitrator who has the ability to gather evidence," and (ii) "the authority to enter a binding decision." Id.

(228) Id.

(229) Id

(230) The ICC Rules of Arbitration, Article 27, "Scrutiny of the Award by the Court", states that "Before signing any Award, the Arbitral Tribunal shall submit it in draft form to the Court. The Court may lay down modifications as to the form of the Award and, without affecting the Arbitral Tribunal's liberty of decision, may also draw its attention to points of substance. No award shall be rendered by the Arbitral Tribunal until it has been approved by the Court as to its form." ICC Rules of Arbitration Art. 27 (1998) (emphasis added).

(231) In re Operadora II, 2009 WL 2423138 at * 10. Judge Conway stated that "Throughout Intel, the Supreme Court indicated that judicial reviewability was a primary basis for finding that the European Commission is a foreign or international tribunal." Id.

(232) Id.

(233) Id.

(234) Id.

(235) Id. at * 11.

(236) Id.

(237) Id.

(238) Id.

(239) Id.

(240) Id. at * 12.

(241) Id.

(242) OJSC Ukrnafta v. Carpatsky Petroleum Corp., No. 3:09 MC 265(JBA) 2009 WL 2877156, at * 1 (D. Conn. Aug. 27, 2009).

(243) Id. at * 2.

(244) Id.

(245) Id. at * 3 (citing In re Roz Trading Ltd., 469 F. Supp. 2d 1221, 1226-28 (N.D. Ga. 2006); In re Babcock Borsig AG, 583 F. Supp. 2d 233, 238-40 (D. Mass. 2008); Nejapa I, 2008 WL 4809035, at * 1 (D. Del. Oct. 14, 2008); In re Hallmark Capital Corp., 534 F. Supp. 2d 951,956- 57 (D. Minn. 2007)).

(246) Id. at * 3 (citing In re Norfolk Southern Corp., 626 F. Supp. 2d 882 (N.D. Ill. 2009); El Paso Corp. II, 341 F. App'x 31 (5th Cir. 2009); In re Operadora I, 2009 WL 2435750 (M.D. Fla. May 28, 2009)).

(247) OJSC Urknafta, 2009 WL 2877156, at * 4.

(248) Id. (quoting In re Norfolk Southern Corp., 626 F. Supp. 2d 882 (N.D. Ill. 2009)).

(249) Id. (quoting Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241. 258 (2004)).

(250) Id. at * 5.

(251) Id.

(252) In re Winning (HK) Shipping Co., No. 09-22659-MC, 2010 WL 1796579 (S.D. Fla. April 30, 2010)

(253) See supra at Part V(G).

(254) Winning, 2010 WL 1796579, at * 6.

(255) Id. at * 9. See also In re Operadora II, No. 6:09-cv-383-Orl-22GJK, 2009 WL 2423138, at * 11 (M.D. Fla. Aug. 4, 2009).

(256) Winning, 2010 WL 1796579, at * 8.

(257) Id.

(258) Id..

(259) Id.

(260) Id. at * 10.

(261) Id. at * 9.

(262) Id.

(263) Id. at * 10.

(264) In re Application of Chevron, 709 F. Supp. 2d 283 (S.D.N.Y. 2010).

(265) Id. at 285-86.

(266) Id. at 287.

(267) Id. at 289. Judge Kaplan noted that the Netflix version available for streaming on the Netflix website included the later-omitted images of the "independent' expert working with the plaintiffs' attorneys.

(268) Id.

(269) Id.

(270) Id.

(271) Id. at 289-90 (internal quotations omitted).

(272) Id. at 290.

(273) Id. at 291.

(274) Id. Judge Kaplan cited the decisions in OJSC Ukrnafta v. Carpatsky Petroleum Corp., No. 3:09 MC 265(JBA), 2009 WL 2877156 (D. Conn. Aug. 27, 2009), In re Oxus Gold PLC, No. MISC. 06-82, 2006 WL 2927615 (D. N.J. Oct. 11, 2006), and Nejapa I, C.A. No. 08-135- GMS, 2008 U.S. Dist. LEXIS 90290 (D. Del. Oct. 14, 2008).

(275) In re Chevron, 709 F. Supp. 2d at 291

(276) In re Caratube Int'l Oil Co., 730 F. Supp. 2d 101 (D.D.C. 2010)

(277) Id. at 102.

(278) Id. at 103.

(279) Id.

(280) Id.

(281) Id.

(282) Id.

(283) Id. at 104. The ICSID tribunal stated that "[a] party starting a Section 1782 procedure before the U.S. courts does so and chooses the time for such a petition at its own risk. But the existence of such a petition to domestic courts cannot interfere with the Tribunal's maintenance of its authority over the arbitral procedure and with the timetable established with the consent of the Parties." Id. (quoting Procedural Order No. 3).

(284) Id at. 105.

(285) Id.

(286) Id. at 104-108.

(287) Id. at 105.

(288) Id. at 106.

(289) Id.

(290) Id.

(291) Id.

(292) Id. at 107.

(293) Id. (quoting Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264-65 (2004).

(294) Id. at 108. The court specifically analyzed IBA Rule 3.8, which "describe[s] how to obtain discovery from non-parties." Id. The court noted that while Caratube had previously argued that IBA Rule 3.8 permitted parties to seek discovery under [section] 1782, the court "disagrees" with Caratube's reading, stating that "the better reading, given the context of this rule, is that the sentence refers to efforts to obtain document without legal process." Id. at 108, n.5.

(295) Id. at 108.

(296) Chevron Corp. v. Charles Camp, Nos. 1:10mc 27, 1:10mc28, 2010 WL 3418394 (W.D.N.C. Aug, 30, 2010).

(297) Id. at * 5.

(298) Id.

(299) Id.

(300) A PACER search conducted on September 28, 2010 indicates that Mr. Camp filed an appeal on the same day the decision was issued, Chevron filed a brief on September 13, 2010, and Mr. Camp filed his reply brief on September 20, 2010.

(301) Ex parte Petition and Application for Order under 28 U.S.C. [section] 1782, Chevron v. Stratus Consulting, Inc., No. 10-cv-00047-MSK-MEH (D.Col. December 18, 2009); Order, Chevron v. Stratus Consulting, Inc., No. 10-cv-00047-MSK-MEH (D. Col. August 31, 2010).

(302) Ex parte Application for Order under 28 U.S.C. [section] 1782, In re Chevron, No. l:10-MI-0076-TWT-GGB (N.D. Ga. February 19, 2010); Order, In re Chevron, No. 1:10-MI-0076-TWT-GGB (N.D. Ga. March 2, 2010).

(303) Chevron v. E-Tech Int'l, No. 10cv1146-IEG(WMc), 2010 WL 3584520 (S.D. Cal. Sept. 10, 2010).

(304) Application for an Order Pursuant to 28 U.S.C. [section] 1782, In re Chevron, No. 10-2675 (SRC) (D.N.J. May 26, 2010); Order, In re Chevron, No. 10-2675 (SRC) (D.N.J. June 15, 2010).

(305) Application for an Order Pursuant to 28 U.S.C. [section] 1782, Chevron v. Mark Quarles, Case No. 3:10-cv-00686 (M.D. Tn. July 16, 2010); Order, Chevron v. Mark Quarles, Case No. 3:10-cv-00686 (M.D. Tn. August 17, 2010)

(306) Order, Chevron v. Mark Quarles, Case No. 3:10-cv-00686, at 3 (M.D. Tn. August 17, 2010).

(307) Id. at 4

(308) Order, In re Chevron, Misc. File No. 1:10-MI-0076-TWT-GGB, p.7 (N.D. Ga. March 2, 2010) (quoting In re Roz Trading, No. l:06-CV-02305-WSD, 2007 WL 120844, at * 1 (N.D. Ga. Jan. 11, 2007)).

(309) Order, In re Chevron, No. 1:10-MI-0076-TWT-GGB, p.9 (N.D. Ga. March 2, 2010)

(310) See Brief for Appellants Norfolk Southern Corp., Norfolk Southern R.R. Co. & General Security Ins. Co., In re Norfolk Southern Corp. (7th Cir. 2009) (No. 09-2609); Brief for Appellee Scott L. Caery, In re Norfolk Southern Corp. (7th Cir. 2009) (No. 09-2609); Reply Brief for Appellants Norfolk Southern Corp., Norfolk Southern R.R. Co. & General Security Ins. Co., In re Norfolk Southern Corp. (7th Cir. 2009) (No. 09-2609); Oral Argument, In Norfolk Southern Corp. (7th Cir. 2009) (No. 09-2609), available at http://www.ca7.uscourts.gov/fdocs/ docs.fwx?caseno=092609&submit=showdkt&yr=09&num=2609.

(311) See, e.g., GARY B. BORN, INTERNATIONAL COMMERCIAL ARBITRATION 1935 (2009) ("The better view is that [section]1782 does apply to requests for judicial assistance in international arbitration, but that the provisions should be applied with considerable circumspection"); Steven A. Hammond, The Art of the Missed Opportunity: How U.S. Courts Declined to Assist Private Arbitral Tribunals under the U.S. Law Authorizing Discovery in Aid of Foreign and International Proceedings, 17 J. INT'L ARB. 131 (2000); Hans Smit, American Assistance to Litigation in Foreign and International Tribunals: Section 1782 of Title 28 of the U.S.C. Revisited, 25 SYRACUSE J. INT'L L. & COM. 1, 5 (1998) ("The substitution of the word 'tribunal' for 'court' was deliberate, for the drafters wanted to make the assistance provided for available to all bodies with adjudicatory functions. Clearly, private arbitral tribunals come within the term the drafters used."); Hans Smit, American Judicial Assistance to International Arbitral Tribunals, 8 AM. REV. INT'L ARB. 153 (1999); Hans Smit, International Litigation Under the United States Code, 65 COLUM. L. REV. 1026, n. 71 (1965) ("The term 'tribunal' embraces all bodies exercising adjudicatory powers, and includes investigating magistrates, administrative and arbitral tribunals ...."); Scott R. Boesel, Note, Arbitration Bodies Should be Considered Tribunals under [section]1782, 63 ALB. L. REV. 637 (1999); 28 US.C [section] 1782 as a Means of Obtaining Discovery in Aid of International Commercial Arbitration--Applicability and Best Practices, The Committee on International Commercial Disputes, New York City Bar Association (2009), available at http://www.nycbar.org/pdf/report/1782_Report.pdf ("It is this Committee's opinion that the better position--based on the plain meaning of the statute, the Supreme Court's decision in Intel, the legislative history and policy considerations--is that Section 1782 discovery should be available in private, international arbitration seated outside the United States." Id. at 44).

(312) See, e.g., US: A summer of decisions on section 1782--but no swing, 4 GLOBAL ARB. REV. (23 October 2009); Barry H. Garfinkel & Timonthy G. Nelson, Sweet Georgia: Roz Trading Upholds the Use of Section 1782 in Aid of Foreign Private Arbitration, 22 MEALEY'S INT'L ARB. REP. 1 (2007); Anand Suryakant Patel, International Judicial Assistance: An Analysis of Intel v. AMD and Its Affect on Sec. 1782 Discovery Assistance, 18 FLA. J. INT'L L. 301 (2006).

(313) Peter B. Rutledge, Judicial Assistance and Arbitration: A New Tool for Cases Involving US. Entities?, 25 J. OF INT'L ARB. 171 (2008).

(314) Id. at 179.

(315) See Bruce I. McDaniel, What is Foreign "Tribunal" Within 28 US.CA. [section]1782 (as Amended in 1964) for Use in Which District Court May Issue Discovery Orders in Response to Letters Rogatory, 46 A.L.R. Fed. 956 (2007); Barry H. Garfinkel & Timonthy G. Nelson, Sweet Georgia: Roz Trading Upholds the Use of Section 1782 in Aid of Foreign Private Arbitration, 22 MEALEY'S INT'L ARB. REP. 1 (2007); Daniel Losk, Section 1782(A) after Intel: Reconciling Policy Considerations and a Proposed Framework to Extend Judicial Assistance to International Arbitral Tribunals, 27 CARDOZO L. REV. 1035 (2005-2006); Anand Suryakant Patel, International Judicial Assistance: An Analysis of Intel v. AMD and Its Affect on Sec. 1782 Discovery Assistance, 18 FLA. J. INT'L L. 301 (2006); Deborah C. Sun, Intel Corp. v. Advanced Micro Devices, Inc.: Putting Foreign Back into the Foreign Discovery Statute, 39 U.C. DAVIS L. REV. 279 (2005-2006); US: A summer of decisions on section 1782--but no swing, 4 GLOBAL ARB. REV. (23 October 2009); Jessica Weekly, Discovering Discretion: Applying Intel to Sec. 1782 Requests for Discovery in Arbitration, 59 CASE W. RES. L. REV. 535 (2008-2009). See also William H. Johnson, Application of 28 USC [section] 1782 to procure evidence for use in private international arbitral proceedings-recent developments, IBA Legal Practice Division, ARBITRATION COMMITTEE NEWSLETTER (October 2007); John Fellas, Using Section 1782 in International Arbitration, 23 ARB. INT'L 3, at 387-88 (2007); Erica Franzetti, US Judicial Discovery in Private International Arbitration: Outlook Remains Uncertain, MIAMI ARB. REP. VOL. 1, ISSUE 5 (2009), available at http://www.crowell.com/documents/US-Judicial-Discovery-in- Private-InternationalArbitration.pdf; Barry H. Garfinkel and Timothy G. Nelson Eureka! The Oxus Gold Decision Holds That Section 1782 Authorizes a U.S. Court To Grant Discovery In Aid of A Foreign Investment Arbitration, 21 MEALEY'S INT'L ARB. REP. (Nov. 2006); Martin Illmer and Ben Steinbruck, US. Discovery and Foreign Private Arbitration: The Foreign Lawyer's Perspective, 25 JOURNAL OF INTERNATIONAL ARBITRATION 329-343 (2008); Michael Nolan and Lesley Benn, New Approach Creates Paradox for US Parties, 2 GLOBAL ARB. REV. (2007); Peter B. Rutledge, Discovery, Judicial Assistance and Arbitration: A New Tool for Cases Involving US. Entities?, 25 JOURNAL OF INTERNATIONAL ARBITRATION, 171-180 (2008); Rima Al-Mokarrab, [section] 1782 Discovery in Aid of International Arbitration Proceedings (Fall 2007), http://www.whitecase.com/idq/fall 2007/clientl/; Sofia E. Biller and Howard S. Suskin, May Courts Assist Private International Arbitration? The judicial split over the reach of 28 U.S.C [section]1782, Special to Law.com (Mar. 19, 2009), http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202429179322; Kevin M. Decker, Protecting Against Discovery Demands Under 28 U.S.C. [section] 1782 (July 10, 2009), http://www.briggs.com/protecting-against-discovery-demands-under-28- usc--1782-07-10-2009/; Jonathan I. Handler and Erica Tennyson, International Discovery Requests Under 28 U.S.C. [section] 1782, Committee on Pretrial Practice & Discovery (Winter 2008), available at http://www.daypitney.com/news/docs/dp_2096.pdf; Claire Morel de Westgaver, International Arbitration." How Can Section 1782 of the U.S. Code of Civil Procedure Assist Non-U.S. Parties in International Arbitrations (July 11, 2007), http://www.twobirds.com/English/News/Articles/Pages/International arbitration US Code Civil Proc edure.aspx; Terry Myers and Myriam Rastaetter, Corporate & Finance Alert." U.S. Discovery For Use in Foreign Tribunals (Dec. 30, 2008), http://www.gibbonslaw.com/news_publications/ articles.php?action=display_publication&publication_i d=2641; Pillsbury Winthrop Client Alert: lntel Corp. v. Advanced Micro Devices (June 29, 2004), http://www.pillsburylaw.com/siteFiles/Publications/2010F038C8B 1358A7690C8837DB3A8FF.pdf; Recent Developments in U.S. Discovery for Use in Foreign Tribunals Under [section] 1782 U.S.C. (Oct. 26, 2007), http://www.jsslaw-com/publication.aspx?id=dd47c5cd-0f72-4018-b260- 8e5d7e3b9dfc; Lucy Reed, U.S. Discovery in Aid of International Arbitration." Recent Developments, Kluwers Arbitration Blog (Feb. 3, 2009), http://kluwerarbitrationblog.com/blog/2009/02/03/us- discovery-in-aid-of-international-arbitration- recent-developments/; Lawrence S. Schaner, Jenner & Block Client Alert." Recent Decisions Expand the Availability of U.S. Discovery for Use in Foreign Legal Proceedings (Mar. 5, 2007), http://www.jenner.com/files/tbl_s20Publications% 5CRelatedDocumentsPDFs1252%5C1620%5CRece nt%20Decisions%20Broaden%20the%20Availability%20of%20U%20S%20%20Discovery.pdf; Epaminontas Triantafilou, The Renewed Debate on the Limits of Discovery Under Section 1782, Kluwers Arbitration Blog (Nov. 6, 2009), http://kluwerarbitrationblog.com/blog/2009/11/06/the-renewed-debate-on-the- limits-of-discovery-under-section.1782/; US Federal Law Allows Discovery Against US Entities For Use In International Arbitrations (May 24, 2007), http://www.olswang.com/newsarticle.asp?page=newssing&sid=858&aid=1029.

(316) Rima A1-Mokarrab, [section] 1782 Discovery in Aid of International Arbitration Proceedings (Fall 2007), http://www.whitecase.congidq/fall_2OO7/clientl/.

(317) Michael Nolan and Lesley Benn, New Approach Creates Paradox for US Parties, 2 GLOBAL ARB. REV. 3 (2007).

(318) Claire Morel de Westgaver, International Arbitration: How Can Section 1782 of the U.S. Code of Civil Procedure Assist Non-U.S. Partes in International Arbitrations (July 11, 2007), available at http://www.twobirds.com/English/News/Articles/Pages/ International_arbitration_US_Code_Civil_Procedure.aspx.

(319) Recent Developments in U.S. Discovery for Use in Foreign Tribunals Under 37 1782 U.S.C. (Oct. 26, 2007), available at http://www.jsslaw.com/article details aspx?id=10.

(320) Nat'l Broad. Co. v. Bear Steams & Co., 165 F. 3d-184, 191 (2d Cir. 1999).

(321) Michael Nolan and Lesley Benn, New Approach Creates Paradox for US Parties, 2 GLOBAL ARB. REV. 2 (2007).

(322) Id. at 3.

(323) Recent Developments in U.S. Discovery for Use in Foreign Tribunals Under [section] 1782 U.S.C., supra note 319.

(324) US Federal Law Allows Discovery Against US Entities For Use In lnternationa! Arbitrations (24 May 2007), http://www.olswang.com/printversion'asp?sid=858&aid=1029&mid=.

(325) John Fellas, Using Section 1782 in International Arbitration, 23(3) ARB. INT'L 379, 387-388 (2007).

(326) Id. at 388.

(327) Peter B. Rutledge, Discovery, Judicial Assistance and Arbitration.. A New Tool for Cases Involving U.S. Entities?, 25(1) J. OF INT'L ARB. 171 (2008).

(328) See supra pp. 59-62, 72-79. In In re Application of Caratube International Oil Company, 2010 WL 3155822 (D.C. Cir. Aug. 11, 2010), the district court of the District of Columbia reserved judgment on whether the private arbitral tribunal qualified as a tribunal under [section] 1782 but denied the application under [section] 1782 nonetheless based solely on the discretionary factors set forth in Intel.

(329) Rutledge, supra note 327, at 171.

(330) Id. at 179.

(331) 2 GARY B. BORN, INTERNATIONAL COMMERCIAL ARBITRATION 1935 (2009).

(332) 28 U.S.C. [section] 1782 as a Means of Obtaining Discovery in Aid of International Commercial Arbitration--Applicability and Best Practices, The Committee on International Commercial Disputes, New York City Bar Association 44 (2009), available at http://www.nycbar.org/pdf/report/1782_Report.pdf.

(333)
   [I]t is possible that the parties' arbitration agreement, or
   institutional rules that it incorporates, may preclude the parties
   from seeking court-ordered discovery or assistance in
   evidence-taking outside the arbitral proceedings, including under
   [section] 1782. Article 22(2) of the LCIA Rules arguably has this
   effect. In these cases, there should be little doubt but that the
   parties are precluded from seeking judicial assistance in taking
   evidence for use in the arbitration. The same should be true where
   an arbitral tribunal, exercising its general authority over
   evidence-taking, orders a party not to seek discovery in a national
   court proceeding.


2 GARY B. BORN, INTERNATIONAL COMMERCIAL ARBITRATION 1936-1937 (2009).

(334) Intel v. Advanced Micro Devices, Inc., 542 U.S. 241,264 (2004).

(335) Id.

(336) In re Roz Trading Ltd., 469 F. Supp. 2d 1221, 1229 (N.D. Ga. 2006).

(337) Id.

(338) Id.

(339) Id.

(340) Id.

(341) Id.

(342) In re Hallmark Capital Corp., 534 F. Supp. 2d 951,957 (D. Minn. 2007).

(343) Id at 954, 957.

(344) Id.

(345) In re Babcock Borsig AG, 583 F. Supp. 2d 233, 241 (D. Mass. 2008).

(346) Id.

(347) Id.

(348) Id. at 242.

(349) See In re Babcock Borsig AG, 583 F. Supp. 2d 233, 239, n.4 (D. Mass. 2008) (stating "As Justice Ginsburg, the author for the Supreme Court of Intel, observed earlier when sitting as a Court of Appeals judge, Professor Smit is "the dominant drafter of, and commentator on, the 1964 revision of 28 U.S.C. [section] 1782." In re Letter of Request from Crown Prosecution Service, 870 F.2d 686, 689 (D.C. Cir. 1989)(R.B. Ginsburg, J.)); see also Euromepa, S.A.v.R. Esmerian, Inc., 51 F.3d 1095, 1099 (2d Cir. 1995)(describing Professor Smit as a 'chief architect' of [section] 1782).").

(350) Hans Smit, American Assistance to Litigation in Foreign and International Tribunals: Section 1782 of Title 28 of the U.S.C Revisited, 25 SYRACUSE J. INT'L L. & COM. 1, 9 (1998) (emphasis added).

(351) 28 U.S.C. [section] 1782 as a Means of Obtaining Discovery in Aid of International Commercial Arbitration--Applicability and Best Practices, supra note 332, at 30.

(352) Martin Illmer and Ben Steinbrtick, U.S. Discovery and Foreign Private Arbitration: The Foreign Lawyer's Perspective, 25(3) J. INT'L ARB. 340 (2008).

(353) Id. at 264.

(354) Id.

(355) Id.

(356) See generally 2 GARY B. BORN, INTERNATIONAL COMMERCIAL ARBITRATION 1887- 1891 (2009); see also LCIA Rules, Art. 22(1)(c) (giving the Tribunal the power "to conduct such enquiries as may appear to the Arbitral Tribunal to be necessary or expedient"); LCIA Rules, Art. 22(1)(d) (giving the Tribunal the power "to order any party to make any property, site or thing under its control and relating to the subject matter of the arbitration available for inspection by the Arbitral Tribunal, any other party, its expert or any expert to the Arbitral Tribunal"); LCIA Rules, Art. 22(1)(e) (providing that the Tribunal has the specific power "to order any party to produce to the Arbitral Tribunal, and to the other parties, for inspection, and to supply copies of, any documents or classes of documents in their possession, custody or power which the Arbitral Tribunal determines to be relevant"); UNCITRAL Rules, Art. 27(3) (providing that the Tribunal is permitted to order the production of "documents, exhibits or other evidence."); ICC Rules, Art. 20(1) (providing that "[t]he Arbitral Tribunal shall proceed within as short a time as possible to establish the facts of the case by all appropriate means."); ICC Rules, Art. 20(5) (provides that the Tribunal "may summon any party to provide additional evidence."). As Born recognizes, "[t]his language does not expressly empower arbitrators to order disclosure of discovery, but ICC tribunals and other authorities have almost uniformly held that this authority is implicit." 2 GARY B. BORN, INTERNATIONAL COMMERCIAL ARBITRATION 1890 (2009).

(357) Intel v. Advanced Micro Devices, Inc., 542 U.S. 241, 264 (2004).

(358) See supra note 356.

(359) International Bar Association Rules on the Taking of Evidence in International Arbitration, Art. 3.

(360) Id. Art. 3(9).

(361) In re Caratube Int'l Oil Co., 730 F. Supp. 2d 101, 107-08 (D.C. Cir. 2010).

(362) Id. at 108. The court specifically analyzed IBA Rule 3.8, which "describe[s] how to obtain discovery from non-parties." Id. at 108. The court noted that while Caratube had previously argued

that IBA Rule 3.8 permitted parties to seek discovery under [section] 1782, the court "disagrees" with Caratube's reading, stating that "the better reading, given the context of this rule, is that the sentence refers to efforts to obtain document without legal process." Id. at 108, n.5.

(363) Intel v. Advanced Micro Devices, Inc., 542 U.S. 241,265 (2004).

(364) In re Caratube 730 F. Supp. 2d at 106.

(365) See, e.g., John Fellas, Using Section 1782 in International Arbitration, 23(3) ARB. INT'L 379, 387-388 (2007).

(366) Intel v. Advanced Micro Devices, Inc., 542 U.S. 241, 265 (2004).

(367) Id.

(368) In re Babcock Borsig AG, 583 F. Supp. 2d 233, 241 (D. Mass. 2008).

(369) Id.

(370) Id.

(371) Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631 (1985).

(372) U.S. courts are highly deferential to international arbitration and routinely compel it in a wide variety of circumstances. See, e.g., Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 (1974) (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 9 (1972)); see also Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 476 U.S. 614 (1985) (holding that anti-trust claims under the Sherman Act arising in connection with an international commercial transaction were arbitrable); Buckeye Check Cashing, Inc. v. Cardega, 546 U.S. 440 (2006) (holding that a challenge to the validity of a contract as a whole, as opposed to the arbitration clause within the contract, had to be considered by the arbitrator rather than the courts); Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967) (holding that a claim of fraud in the inducement of the entire contract was to be resolved by arbitration rather than by the courts); First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995) (affirming a court of appeal decision that arbitrability of a dispute was subject to judicial review where the defendants had not clearly agreed to submit the question of arbitrability to arbitration); Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002) (holding that the arbitrator, rather than the court, should decide on a time-limit rule for submitting disputes contained in the institutional rules applicable to the arbitration); Pacificare Health Sys., Inc. v. Book, 538 U.S. 401 (2003) (holding that arbitration should have been compelled where it is unclear whether arbitrators would construe the arbitration agreement's prohibition on punitive damages as barring imposition of the treble-damages that are authorized under the RICO act); Doctor's Associates, Inc. v. Casarotto, 517 U.S. 681 (1996) (pre- empting as inconsistent with the Federal Arbitration Act a Montana statute that invalidated arbitration agreements in contracts that did not display an underlined and capitalized notice that the contract was subject to arbitration); Southland Corp. v. Keating, 465 U.S. 1 (1984) (holding that the Federal Arbitration Act pre-empts state law that invalidates arbitration agreements); McDonald v. City of West Branch, 466 U.S. 284, 292 (1984) (holding that federal courts are not required to give full faith and credit to unappealed arbitration awards).

(373) Nat'l Broad. Co., Inc. v. Bear Stearns & Co.., 165 F.3d 184, 190-191 (2d Cir. 1999); Republic of Kazakhstan v. Biedermann Int'l, 168 F.3d 880, 883 (5th Cir. 1999).

(374) 2 GARY B. BORN, INTERNATIONAL COMMERCIAL ARBITRATION 1936 (2009) (stating that "it is possible that the parties' arbitration agreement, or institutional rules that it incorporates, may preclude the parties from seeking court-ordered discovery or assistance in evidence-taking outside the arbitral proceedings, including under [section] 1782.").

(375) See supra note 373.

(376) LCIA Rules, arts. 22.1(e) & 22.2 (emphasis added); see also supra note 356.

(377) See infra pp. 102-104; International Bar Association Rules on the Taking of Evidence in International Arbitration, Art. 3.

(378) Since 28 U.S.C. [section] 1782 permits a court to order discovery relating to anyone who "resides or is found" in the court's district, parties located in the U.S. or with affiliates in the U.S. must be cognizant of the reach of [section] 1782 and pay particular attention to their dispute resolution clauses. By examining an individual or companies' connection(s) to U.S. entities during the drafting of a dispute resolution clause, parties will be better suited to evaluate whether a [section] 1782 request could be available in connection with a potential future arbitration, and if so, the parties can proactively address concerns in their arbitration agreement.

(379) See supra pp. 102-104.

KENNETH BEALE, JUSTIN LUGAR, & FRANZ SCHWARZ *

* The authors are attorneys at Wilmer Cutler Picketing Hale and Dorr LLP. The views expressed in this Article are those of the authors and not their firm.
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Author:Beale, Kenneth; Lugar, Justin; Schwarz, Franz
Publication:Stanford Journal of International Law
Date:Jan 1, 2011
Words:31252
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