The Fifth Circuit U. S. Court of Appeals last week reaffirmed its position that 28 U. S. C. 1782, which provides for federal assistance in obtaining discovery for use in foreign and international tribunals, does not apply to private commercial arbitration tribunals. El Paso Corp. v. La Comision Ejecutiva Hidroelectrica del Rio Lempa, 2009 U. S. App. LEXIS 17596 (5th Cir. Aug. 6, 2009).

Notes on Babcock Borsig and the two Comision Ejecutiva cases

Notes on Babcock Borsig and the two district court decisions in Comision Ejecutiva

24-8 Mealey's Intl. Arb. Rep. 7 (2009), Volume 24, Issue #8 (August 2009) -- NEW ORLEANS - The Fifth Circuit U.S. Court of Appeals on Aug. 6 affirmed a district court's ruling granting reconsideration and vacating an order granting an ex parte application to obtain discovery to be used in a private international arbitration in relation to disputes over a contract to construct a power plant and provide power in El Salvador (El Paso Corporation v. La Comision Ejecutiva Hidroelectrica Del Rio Lempa, et al., No. 08-20771, 5th Cir.; 2009 U.S. App. LEXIS 17596).

Mealey's International Arbitration Report, Volume 24, Issue 8, August 2009, p. 8 -- ORLANDO, Fla. - A Florida federal judge on Aug. 4 refused to adopt a portion of a magistrate judge's recommendation that the court order discovery for use in an arbitration proceeding over franchise rights in Mexico, finding that the private arbitral panel did not qualify as a foreign or international tribunal under 28 U.S. Code Section 1782 (In re: Application of Operadora DB Mexico S.A. DE C.V., No. 6:09-cv-383-Orl-22GJK, M.D. Fla.; 2009 U.S. Dist. LEXIS 68091)

In a decision that appears to swim against the tide, a US district court in Chicago has refused to compel Scott Carey, a potential witness in a London arbitration, to give a deposition.

DISCOVERING DISCRETION: APPLYING INTEL TO § 1782 REQUESTS FOR DISCOVERY IN ARBITRATION
by Jessica Weekley
Case Western Reserve Law Review, Vol. 59, No. 2, Winter 2009, p.535

A 2006 ruling prompted an uptick in requests to US courts under section 1782 but now the tide could be reversing, as three courts take the view arbitral panels don't qualify for evidentiary help.

Note on El Paso Corporation v. La Comision Ejecutiva, No. 08-20771 (5th Cir. Aug. 6, 2009) where the United States Court of Appeals for the Fifth Circuit held that section 1782 does not apply for a discovery motion for use in a private international arbitration (arbitration in Geneva under the UNCITRAL Arb. Rules)

Note on El Paso Corporation v. La Comision Ejecutiva, No. 08-20771 (5th Cir. Aug. 6, 2009) in which the United States Court of Appeals for the Fifth Circuit held that section 1782 does not apply for a discovery motion for use in a private international arbitration (arbitration in Geneva under the UNCITRAL Arb. Rules)

by Abram I. Moore - short notes on Hallmark Capital, Babcock Borsig and the two decisions in Comision Ejecutiva (Delaware and Texas)

"The gathering of evidence is a key element in legal proceedings. Contrary to the regulations in Switzerland, the US legal order allows for pre-trial discovery, i.e. the parties are entrusted with the collecting of evidence at an early stage. This diverging approach becomes relevant in civil proceedings or arbitral proceedings in Switzerland with a linkage to the USA. The question arises if and how parties may profit from the US-American discovery procedure. This paper wants to answer the question by examining the use of evidence gathered in US-American discovery in international proceedings before Swiss courts as well as arbitral tribunals located in Switzerland. Part one concentrates on the possibilities and limitations of legal assistance pursuant to 28 U.S.C. § 1782. In part two the utilization of evidence collected in discovery procedure in Switzerland, in the event of a party seeking legal assistance individually, is evaluated. Thereby, special consideration is given to the Hague Evidence Convention and the Swiss ordre public. The paper concludes with a short summary of the author's findings and rationalizations why evidence collected in discovery proceedings should be admitted."

"A subpoena for the testimony of Russian Finance Minister Alexei Kudrin was withdrawn after a US State Department opinion that Mr. Kudrin was a part of a special diplomatic mission at the time. In withdrawing the subpoena, it is important to note that this decision leaves open the possibility of future subpoenas when special diplomatic circumstances do not apply."

short note on Marubeni case

"Below is a a Memorandum of Law that was used in an application for the appointment of a commissioner to collect evidence - pursuant to a request for judicial assistance from the United Kingdom - that was made at the U. S. District Court for the District of Kansas on July 1, 2008."

In re an Arbitration in London, England between Northfolk Southern Corp. et al v. ACE Bermuda LTD (Northern District Ill., June 15, 2009). -- With link to fulltext PDF of the decision