In re Application of Alpene, Ltd., No. 21 MC 2547 (E.D.N.Y. Oct. 27, 2022)
Alpene, Ltd., a Hong Kong corporation, was the claimant in an investor-state treaty arbitration against the Republic of Malta before the World Bank’s International Centre for the Settlement of Investment Disputes (“ICSID”). Alpene initiated a proceeding in district court in New York requesting an order authorizing subpoenas for documents and testimony from an individual residing in New York in connection with the ICSID arbitration. Alpene based its request on 28 U.S.C. § 1782, which authorizes federal courts to order U.S. persons to provide documents and testimony “for use in a proceeding in a foreign or international tribunal.”
The District Court Decision
The district court initially granted the request but later stayed its order and requested briefing based on the U.S. Supreme Court’s intervening decision in ZF Auto. US, Inc. v. Luxshare, Ltd., which held that 28 U.S.C. § 1782 “reaches only governmental or intergovernmental adjudicative bodies” and that “private adjudicatory bodies” cannot be foreign tribunals. The Supreme Court further determined that, as to particular arbitration proceedings, the “relevant question is whether the nations intended that the [arbitral] panel exercise governmental authority.”
Applying this new decision, the district court reviewed the characteristics of ICSID, including Malta’s and China’s memberships therein, and determined that there was no clear indication that Malta or China intended to imbue ICSID with governmental authority. The court noted that the bilateral investment treaty at issue gave the parties the choice of using domestic courts in lieu of ICSID arbitration, undermining the contention that the arbitration panel had government authority. The court also noted that the animating purpose of § 1782 is to promote assistance and cooperation between the U.S. and foreign countries, but that ICSID tribunals had no authority to provide reciprocal assistance for U.S. proceedings. Finally, the court determined that construing § 1782 to allow assistance for ICSID arbitrations would create a mismatch between the scope of discovery allowed for foreign as compared to domestic arbitrations (under the Federal Arbitration Act).
Determining that ICSID did not qualify as a “foreign or international tribunal” under § 1782, the court denied Alpene its requested document and deposition subpoenas. The court instead granted the New York resident’s motion to vacate and entered an order quashing the subpoenas.
This Article was originally published in the North America Newsletter.