28 USC § 1782

Notes on Babcock Borsig and the two Comision Ejecutiva cases

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

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).

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)

Note on El Paso v. La Comision Ejecutiva Hidroelectrica del Rio Lempa, No. 08-20771 (5th Cir. Aug 6, 2009) with PDF of decision

Oliver L. Knöfel, Journal of Private International Law, Volume 5, Number 2, August 2009, pp. 281-309 Abstract: Until today, a variety of mechanisms of State courts assisting foreign arbitral tribunals in the taking of evidence has been developed in international legal practice. Unfortunately, none of the legal avenues nowadays available to arbitrators presents a coherent or convincing picture. One has to explore a wealth of diverse and scattered sources when an arbitral tribunal needs or wishes to obtain evidence abroad. What is more, it is often considered excessive to oblige a State to lend assistance to arbitral proceedings held outside its own territory. In 2004, however, the US Supreme Court decided to examine the concept of "tribunal" as used in 28 U.S.C. section 1782 under a functional lens. In the wake of this decision several US District Courts have been reading section 1782 to authorise subpoenas in aid of foreign arbitrations. The new US jurisprudence offers a unique opportunity to reinvent the US-German relationship under the Hague Evidence Convention of 1970. This article aims at broadening the scope of international judicial assistance in its entirety. The plan is to begin by exploring the legal avenues by which arbitral panels can obtain evidence abroad and seek judicial assistance of foreign States' courts de lege lata. Then the impact of the newly established, arbitration-friendly US case-law on judicial assistance as granted under 28 U.S.C. section 1782 will be studied. Finally, the new US jurisprudence will be used as the basis to argue for a different attitude towards arbitration proceedings than that now prevailing under the Hague Evidence Convention of 1970 and under the European Evidence Regulation of 2001. Both instruments should be interpreted to encompass international arbitral tribunals.

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.

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.

July 24, 2008