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The court noted that in Republic of Kazakhstan v. Biedermann International, 168 F.3d 880 (5th Cir. 1999), the court held that “a ‘tribunal’ within the meaning of § 1782 did not include a private international arbitral tribunal, and thus § 1782 did not apply to discovery sought for use in such a tribunal.”

the Fifth Circuit was not persuaded by CEL’s argument.  The Court concluded that the issue of whether a private international arbitration tribunal  qualifies as a “tribunal” under § 1782 was not before the U.S. Supreme Court in Intel.

Accordingly, the court denied El Paso’s motion to dismiss the appeal as moot and affirmed the district court’s grant of the Rule 60(b) motion.

In the Summer 2007 edition of Arbitration World, we noted that, after Intel, federal courts in New Jersey (In re Oxus Gold) and Georgia (In re Roz Trading) had interpreted Section 1782 to apply to international arbitrations. Recently, courts in Minnesota, Massachusetts and Delaware have followed suit, while a court in Texas has disagreed.

Although the weight of post-Intel legal authority suggests that participants in foreign arbitrations can now successfully apply for discovery in the U.S. under Section 1782, there remains a conflict in the federal district courts. Until the scope of Section 1782 is clarified by Circuit Courts of Appeals or the United States Supreme Court, a party to foreign arbitration who hopes to discover evidence in the U.S. cannot predict with certainty whether it will meet the first requirement: a recognition of the arbitral body as a “tribunal.” However, based upon the recent trend, it is likely that this hurdle will be cleared – unless the evidence lies in Texas

In Sachen Marubeni America Corporation v. LBA Y.K., Az. 08-3282, stellte die amerikanische Zeugin auf die Grenzen des japanischen Beweisrechts ab. Das Bundesberufungsgericht des zweiten US-Bezirks entschied jedoch nach der lesenswerten Erörterung der Präzedenzfälle, dass das US-Gericht nicht daran gebunden ist.

The named insured and named party in a London reinsurance arbritration requested that the district court order a non-party witness to testify in the arbitration.

The non-party argued that the scope of 28 U.S.C. §1782 was limited to only governmental entities.

While the District Court conceded that the court’s powers under 28 U.S.C. §1782 have been expanded over the past several years, the Intel decision did not specifically reference private arbitrations as one of those areas in which the statute granted authority.  The District Court, therefore, declined to follow several subsequent decisions which interpreted the Intel decision to apply to private arbitrations.