Juan M. Alcalá 0000-00-00 00:00:00
Globalization is no longer a thing of the future; it is here now. Products manufactured in one or multiple countries are sold in markets across the globe. Business relationships are crossing national borders in a complex web that involves private and public companies, individuals, governments, and governmental entities. Consequently, participants in the global economy often find themselves in transnational disputes over products they placed into the global market or over their business relationships that have gone awry. Transnational disputes are not limited to any particular legal area. This article explores the growing trends in transnational disputes, some of the particular legal issues involved, and the important role cultural affinity plays in these disputes. LITIGATION GOES GLOBAL The number and breadth of cross-border disputes has grown as the economy has increasingly become more global. For instance, the number of international arbitrations has increased dramatically in the past 20 years. The International Center for Settlement of Investment Disputes (ICSID), for example, registered approximately 272 cases between 2002 and the end of May 2012, compared to 95 cases between 1972 and 2001.1 These cases involve state parties from all over the globe and involve divergent economic sectors, including agriculture, fishing and forestry; oil, gas, and mining; electric power and other energy; water, sanitation, and flood protection; construction; tourism; transportation; finance; and information and communication. Similarly, the number of cases filed under the auspices of the International Court of Arbitration (ICC) has grown from approximately 560 cases filed between 1999 and 2006, to 733 cases filed between 2007 and 2011. More impressive is the geographic reach of these cases. A ICC report from 2011 noted that cases filed that year concerned 2,293 parties from 139countries and independent territories, were located in 63 countries, and included arbitrators from 78 different nations.2 Although official statistics regarding transnational disputes occurring in national courts are difficult to obtain, the number of these types of disputes appears to be on the rise, especially in the areas of antitrust, securities litigation, and class actions.3 In 1996, for example, approximately six securities-related cases were filed in U.S. courts against international companies (i.e., non-U.S. companies listed on a U.S. exchange).4 That number had grown to 20 cases by 2003 and grew further to 61 cases in 2011.5 These securities cases involved companies from Canada, China, France, Germany, Japan, Mexico, Switzerland, the United Kingdom, and others. Affected industries included pharmaceuticals, oil and gas, mining, beverages, auto parts and equipment, machinery, home furnishings, computers, banking, insurance, etc.6 The antitrust arena has experienced a similar growth in transnational disputes since the early 1990s.7 From 1990 to the end of 2008, there were 516 private international cartels with rates increasing exponentially, from four to six per year in the early 1990s, to about 35 per year between 2003 and 2005, to an average of 77 per year between 2006 and 2008.8 Total known affected sales has seen a dramatic increase as well, from less than $1 trillion before 1995 to an astounding $16 trillion in 2008. The industries affected have included organic chemicals, transport services, telecom services, food and tobacco manufacturing, banking and insurance, and distribution. The upward trend in transnational disputes is not surprising given the growth of the global economy and the evolution and internationalization of legal regimes around the world. In the antitrust arena, for example, a significant number of countries, including Argentina, Brazil, China, India, Korea, Russia, and, most recently, Mexico and Ecuador, have enacted or modified their antitrust legislation. This new legislation reflects a more modern and international view of economic competition and makes the prosecution of antitrust violations more effective.9 These new or revised laws allow enforcement authorities to conduct “dawn raids”10 and intensify the penalties for cartel activities. 11 Most important, various enforcement authorities have increased their cooperation efforts around the world.12 A similar trend exists in the class action arena. Today, at least 25 countries have some type of collective action legislation. These countries include Canada (1978), Brazil (1985), Uruguay (1985), Peru (1993), Colombia (1998), Ecuador (1999), Costa Rica (2000), Spain (2001), Germany (2005), Italy (2010), and Mexico (2011). One particular collective action that has attracted global attention is an environmental case filed by a group of indigenous people in Ecuador against Chevron Corporation in 2003. In early 2011, the trial court issued a judgment of approximately $18 billion, which was affirmed in the appellate court in 2012. The Chevron/Ecuador case has triggered related proceedings, including an UNCINTRAL arbitration at The Hague, a RICO action in the Southern District of New York, and most recently an enforcement proceeding in Canada. The growth in cross-border disputes is challenging the way lawyers, judges, and legal scholars across the globe think about and deal with procedural and substantive legal issues, diverse legal regimes, and cultural differences. Some of the most common issues that arise in these disputes are discussed below. RESOLVING DISPUTES Parties generally have two options for resolving their disputes: (a) litigation before a local court or (b) arbitration before an international tribunal. This choice, however, is often made long before a dispute arises in a dispute resolution included in the parties’ contracts. A dispute resolution clause usually contains a forum selection clause specifying the method of dispute resolution, as well as the place or location where any dispute is to be resolved. Even when parties have predetermined the method and forum for resolving their disputes, these issues often remain hotly contested. This has resulted in an increasing number of international parallel proceedings where courts and tribunals around the world are asked to adjudicate the same or virtually the same claims and issues pending concurrently in multiple forums.13 The parties’ decision to engage in these battles, even in the presence of an explicit forum selection clause, is often driven by the following factors: the cost and convenience to the parties, perceived local biases, counsel’s familiarity with local procedures, the applicable law, and docket speed. As is the case in domestic litigation, when international parallel proceedings arise, one party rushes to its local court to file a lawsuit, while the other rushes to file a notice of arbitration or, alternatively, a nearly identical claim in its local courts. What typically follows is a series of challenges to the other forum’s jurisdiction brought about by motions to dismiss based on the forum non conveniens doctrine, motions to stay, motions to abstain, requests for anti-suit or anti-arbitration injunctions, and other similar requests. These jurisdictional battles raise complex issues and inconsistent answers. One such issue, for example, concerns whether the dispute should be resolved via litigation or arbitration. The answer should depend on what the parties chose in the dispute resolution clause of their contractual agreement, especially where the parties are from signatories to the New York Convention. Article II(3) of the New York Convention requires the courts of a Contracting State to refuse adjudication of the dispute and to refer the parties to arbitration, unless the agreement to arbitrate is “null and void, inoperative or incapable of being performed.” Moreover, whether the agreement to arbitrate should be deemed “null and void, inoperative or incapable of being performed” falls to the arbitrator(s) under the “competence-competence” principal, which dictates the arbitral tribunal has the authority to decide, in the first instance, its own jurisdiction. But, this is not always the case and courts of Contracting States sometimes arrogate the power to make the decision and issue anti-arbitration injunctions. A classic example of this situation arose in Companhia Paranaense de Energia (COPEL) v. UEG Arauncaria Ltda. The case involved (a) Companhia Paranaense de Energia (known as COPEL), a state-owned electrical utility company in Brazil; (b) El Paso Corp., an American company; and (c) Petrobras. The three entities executed a joint venture agreement forming a special purpose company named UEG for the construction of a thermoelectrical power plant in Brazil. COPEL subsequently entered into a Power Purchase Agreement with UEG, which contained a dispute resolution clause providing for arbitration in Paris according to ICC Rules. UEG commenced an ICC arbitration against COPEL in Paris for breach of contract. COPEL, on the other hand, commenced a court proceeding in Brazil seeking to declare the arbitration agreement invalid on the basis that a state-owned company could not enter into an arbitration agreement. The Brazilian trial court issued an antiarbitration injunction enjoining UEG from participating in the ICC arbitration. Meanwhile, the Paris arbitral tribunal considered itself bound by the lex arbitri and did not suspend the arbitration proceeding even after being notified of the Brazilian court’s order. The Brazilian anti-arbitration injunction stayed in effect for almost a year while the parties settled the case.14 Another issue that often arises is what standard to apply when deciding whether to stay, dismiss, or enjoin a dispute pending in one court in favor of a second dispute pending in a different court. U.S. courts typically apply one of three doctrines usually employed in the context of domestic parallel proceedings: 15 (a) the “Colorado River Abstention Doctrine” from the Supreme Court’s 1976 landmark decision in Colorado River Water Conservation District v. United States,16 (b) the “International Abstention Doctrine,”17 and (c) the approach outlined in Landis v. North American Co.18 WHAT LAW APPLIES? Similar to the jurisdictional issue, the question of what law applies is often addressed in the choice of law clause of the parties’ contract long before a dispute actually arises. Battles ensue here too, however. Take, for example, the question of whether the parties’ choice of law will be enforced. In the United States, national courts generally enforce choice-of-law clauses but may refuse to do so if the jurisdiction whose law is chosen lacks a “substantial” or “reasonable” relationship to the underlying transaction.19 Under Brazilian law, by contrast, the parties’ choice of law is superseded by the law of the country where the contract was formed or by the law of the location of the offeror under Brazilian contract law.20 In the tort arena, U.S. courts generally follow the “most significant relationship” test of the Restatement (Second) of the Conflict of Laws. Other countries, however, follow the lex loci delicti rule, but differ as to the meaning of delict.21 Austria andPoland opt for the place of conduct; whereas the Netherlands opts for the place of injury; Czechoslovakia, Greece, and Spain leave the choice between the locations; whereas Japan and Switzerland split between the place of conduct for some cases and the place of injury for others.22 Recently, some countries have pushed for allowing the tort victim to choose between the laws of the place of conduct and the place of injury or authorizing the court to choose the law most favorable to the victim.23 Several other countries, including China, Korea, and Venezuela, have adopted this same principle, either for all cross-border torts or only certain categories of torts.24 WHAT ABOUT “DISCOVERY”? Obtaining evidence in a transnational dispute offers its own challenges and surprises. U.S. litigants before a U.S. court seeking to obtain evidence from a foreign party will typically rely on the Hague Convention for the Taking of Evidence Abroad. Generally, this mechanism allows for: 1. document discovery by means of a Letter of Request, issued by the court where the action is pending and transmitted to the “Central Authority” of the jurisdiction where the discovery is located, which then transmits the request to the appropriate judicial body for a response,25 and 2. deposition testimony by means of a Letter of Request, requesting that the testimony be taken before a diplomatic or consular officer, or by a specially appointed commissioner in the non-U.S. jurisdiction.26 Obtaining evidence through these Hague Convention mechanisms, however, is often slow and expensive.27 Another important consideration when seeking to obtain evidence abroad is that a number of countries have enacted data privacy laws and/or blocking statutes. Data privacy laws restrict the ways “personal data” can be “processed.”28 Most important, these data privacy laws define “personal information” and “processing” very broadly. “Personal data” as used in the “directive,” for example, references more than just a social security number, national identification number, or medical records. It broadly includes “any information relating to an identified or identifiable natural person.”29 The term “processing” includes not only common functions such as formatting conversions, de-duplication, filtering, and indexing, but also any collection or manipulation of data, including the storage of data as required in a routine litigation hold.30 “Blocking statutes,” which prohibit the collection or export of evidence for a foreign proceeding, are even more restrictive and often make complying with a U.S. court’s discovery order a criminal offense punishable by severe fines and imprisonment.31 U.S. courts have struggled with the application of these laws that often pin litigants between a rock and a hard place.32 In Strauss v. Credit Lyonnais, S.A.,33 a U.S. court ordered a French defendant to produce a document in accordance with the FederalRules of Civil Procedure. The court disregarded the defendant’s concern that doing so would violate French privacy laws, and the defendant’s lawyer reluctantly complied with the court’s order. The lawyer was subsequently criminally prosecuted by French authorities and convicted of violating French privacy laws. The French Supreme Court later affirmed his conviction and fine. By contrast, foreign litigants involved in disputes pending in the courts of the United States do not typically have to deal with data privacy laws or blocking statutes when obtaining evidence from a U.S. litigant. Moreover, foreign litigants involved in a “foreign proceeding” with a U.S. party may obtain evidence from that U.S. party by invoking 28 U.S.C. Section 1782.34 Discovery under Section 1782 is generally proper, although not required,35 if: (a) directed at a resident of the district or at someone “found” in the district; (b) intended “for use in a proceeding before a foreign or international tribunal, including criminal investigations conducted before formal accusation”; (c) 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 (d) it does not involve the disclosure of privileged documents.36 Section 1782 has two goals: to provide efficient means of discovery assistance to foreign litigants and to encourage foreign countries to provide similar means of assistance to U.S. courts.37 Each of the requirements in Section 1782 have been interpreted extensively, but two are particularly worth highlighting. First, as to what constitutes a “foreign proceeding,” Section 1782 has been broadly interpreted and most judicial or quasijudicial proceedings fall within the statute’s scope, including foreign bankruptcy proceedings,38 foreign criminal proceedings, 39 and proceedings before certain foreign investigative bodies. 40 There are, however, differing opinions regarding whether arbitrations constitute “foreign proceedings” for purposes of Section 1782.4141 Second is whether Section 1782 categorically bars a district court from ordering production of documents when the foreign tribunal or the “interested person” would not be able to obtain the documents if they were located in the foreign jurisdiction (the “foreign-discoverability requirement”). In Intel Corp. v. Advanced Micro Devices, Inc., the Supreme Court stated that “[b]eyond shielding material safeguarded by an applicable privilege, however, nothing in the text of §1782 limits a district court’s production-order authority to materials that could be discovered in the foreign jurisdiction if the materials were located there.”42 The Court further noted: (a) when information is sought by an “interested person,” a district court may condition relief upon that person’s reciprocal exchange of information; and/or (b) the foreign tribunal can place conditions on its acceptance of the information to maintain whatever measure of parity it concludes is appropriate.43 Thus, practitioners seeking discovery or opposing the discovery of materials for use in a foreign proceeding in a country that has enacted “blocking statutes” or “data privacy” laws must give due consideration to whether the local court will permit the use of materials obtained pursuant to Section 1782.44 THE ELEPHANT IN THE ROOM — CULTURAL AFFINITY MATTERS Issues of language, culture, and differing legal traditions play important roles in almost every transnational dispute. Being well versed in the legal traditions of the countries in which your clients (and their opponents) conduct business can help fashion a more complete strategy (i.e., a strategy that accounts for the risks — and benefits — associated with the various jurisdictions involved). Such understanding will also help outside counsel better comprehend the reasons for a client’s business decisions. Understanding the cultural tendencies and sensitivities involved in the dispute will also help avoid unnecessary embarrassments and help the overall dispute resolution process proceed cordially and smoothly. More important, having an appreciation and command of your client’s language, culture, and legal traditions can also help lessen the expense associated with transnational disputes as clients do not have to hire multiple lawyers, translators, and others to assist in resolving such disputes. Conclusion The number, nature, and complexity of transnational disputes will continue to grow alongside international commerce. Stay tuned to how the substantive and procedural issues that arise on these disputes are approached and resolved around the globe and to new ones that arise. Notes 1. http://icsid.worldbank.org/ICSID/Index.jsp. 2. http://www.iccwbo.org/court/arbitration/index.html?id=41190. 3. The growth in cross-border disputes is not limited to these areas. There are plenty of other examples. See e.g., Dow Jones & Co. v. Gutnick (2002) 210 C.L.R. 575, 606–08 (Austl.) (holding that Australian courts had jurisdiction and could apply Australian law in a defamation action brought by an Australian citizen against a U.S. publisher for allegedly defamatory remarks contained in an online publication (Barron’s Online) posted on a New York website). 4. http://www.chartisinsurance.com. 5. Id. Whether the 2010 U.S. Supreme Court’s decision in Morrison v. National Australia Bank Ltd. will impact the trend and yield an increase in securities litigation cases outside of the United States remains to be seen. 130 S. Ct. 2869 (2010) (barring plaintiffs from asserting claims in the United States over a multinational company traded on a non-U.S. exchange and limits the extent to which claims can be made involving non-exchange based securities transactions). 6. Id. 7. Michal S. Gal, Antitrust in a Globalized Economy: The Unique Enforcement Challenges Faced by Small and Developing Jurisdictions, 33 Fordham International Law Journal 1, 5 (2009) (noting that “at an increasing rate, antitrust issues contain an international dimension and affect more than one jurisdiction.”). Margaret C. Sevenstein & Valerie Y. Suslow, International Cartels, 2 Issues in Competition Law and Policy 1107 (ABA Section of Antitrust Law 2008) (describing the history and growth of international cartels, as well as their prosecution). 8. John M. Connor & C. Gustav Helmers, Statistics on Modern International Cartels 1990–2005, located at http://www.agecon.purdue.edu/working_papers/ workingpaper.connor.11.10.06.pdf; John M. Connor, Cartels & Antitrust Portrayed: Number, Size and Location 1990–2008, located at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1467310. 9. D. Daniel Sokol, The Future of International Antitrust and Improving Antitrust Agency Capacity, 103 Northwestern University Law Review, 1081 (2009). See also Patricia Isela Hansen, Antitrust in the Global Market: Rethinking “Reasonable Expectations,” 72 S. Cal. L. Rev. 1610–1614 (1999) and Margaret C. Sevenstein & Valerie Y. Suslow, International Cartels, 2 Issues in Competition Law and Policy 1107 (ABA Section of Antitrust Law 2008). 10. Mexico: Federal Law on Economic Competition (Ley Federal de Competencia Económica); Ecuador: Organic Law for the Regulation and Control of Market Power (Ley Orgánica de Regulación y Control del Poder de Mercado). 11. Scott D. Hammond, “Charting New Waters in International Cartel Prosecutions,” Address Before 20th Annual National Institute on White Collar Crime 2 (Mar. 2, 2006), available at http://www.usdoj.gov/atr/public/speeches/214861.htm (stating that “A number of nations on at least five continents — including Canada, Japan, the United Kingdom, Israel, Ireland, Korea, and Australia — already have, or are in the process of adopting, laws providing for criminal sanctions.”). 12. Id. “The Division’s recent success in prosecuting foreign nationals who violate the U.S. antitrust laws has been aided by the changing attitudes around the world regarding the harm caused by cartels and the resulting increased cooperation provided by foreign authorities.” 13. N. Jansen Calamita, Rethinking Comity: Towards a Coherent Treatment of International Parallel Proceedings, 27 U. Pa. J. Int’l Econ. L. 601, 608 (2006) (noting that increased global commerce has led to a “proliferation” of cases in which more than one country has jurisdiction); Margarita Treviño de Coale, Stay, Dismiss, Enjoin or Abstain?: A Survey of Foreign Parallel Litigation in the Federal Courts of the United States, 17 B.U. Int’l L.J. 79, 80 (1999) (noting that expansion of transnational economic activities and a corresponding increase in international business disputes have increased the number of parallel lawsuits being filed in the United States and abroad). 14. See also Julian D M Lew QC, Does National Court Involvement Undermine the International Arbitration Process?, 24 Am. U. Int’l Law 489 (2009). 15. Austen L. Parrish, Duplicative Foreign Litigation, 78 George Washington L. Rev. 237 (February 2010). See also N. Jansen Calamita, Rethinking Comity (noting that treatment of these kinds of parallel proceedings “remains one of the most unsettled areas of the law of federal jurisdiction”). 16. 424 U.S. 800 (1976). 17. Turner Entm’t Co. v. Degeto Film GmbH, 25 F.3d 1512, 1518 (11th Cir. 2004). 18. 299 U.S. 248. See also St. Clair Intellectual Prop. Consultants v. Fujifilm Holding Corp., No. 08-373-JJF-LPS, 2009 WL 192457, at *2 (D. Del. Jan.27, 2009). But see Nigro v. Blumberg, 373 F. Supp. 1206, 1212–13 (E.D. Pa. 1974) (identifying seven factors). 19. Restatement (Second) of Conflict of Laws §187(2)(a) (1971) (“The law of the state chosen by the parties to govern their contractual rights and duties will be applied … unless … the chosen state has no substantial relationship to the transaction and there is no other reasonable basis for the parties’ choice.”); Erin A. O’Hara & Larry E. Ribstein, 60–62 (2009) (criticizing the Second Restatement’s substantial relationship requirement); Mo Zhang, Party Autonomy and Beyond: An International Perspective of Contractual Choice of Law, 20 Emory Int’l L. Rev. 511, 554 (2006) (“As a general pattern, it is hard to find any U.S. case that upholds a choice of law clause selecting a law with little or no connection to the dispute.”). 20. See Art. 9 of the Decreto-Lei No. 4.657, de 4 de setembro de 1942 (Brazil). See also, Dana Stringer, Choice of Law and Choice of Forum in Brazilian International Commercial Contracts: Party Autonomy, International Jurisdiction, and the Emerging Third Way, 44 Colum. J. Transnat’l L. 959, 974–976 (2006). 21. Symeon C. Symeonides, Choice of Law in Cross-Border Torts: Why Plaintiffs Win and Should, 61 Hastings Law Journal, 337, 398–403 (2009). 22. Id. 23. Id. 24. Id. 25. The Hague Convention, arts. 1 & 2. 26. The Hague Convention, art. 3. 27. See e.g., Seguros Comercial Americas S.A. De C.V. v. American President Lines, Ltd., 933 F.Supp. 1301, 1312 (S.D. Tex. 1996) (finding that the taking of testimony by means of the Hague Convention was “time consuming and, if the parties fail to cooperate, ineffective”); In Re Aircrash near Roselawn, 172 F.R.D. 295, 310 (N.D. Ill. 1997) (“We find use of the Convention Letters of Rogatory to be an unnecessary, complicated, time consuming, and expensive means of discovery, thus thwarting the interests of our court system”). 28. See e.g., Directive 95/46 of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, 1995 O.J. (L 281) (EC); Argentina — Law for the Protection of Personal Data (LPDP), Law No. 25.326; France — Decree No. 2005-1309 of 20 October 2005 enacted for the application of Act No. 78–17 of 6 January 1978 on Data Processing, Files and Individual Liberties (Amended by Decree 2007-451 of 25 March 2007). 29. Id. at art. 2(a). 30. Id. at art. 2(b). 31. French Law No. 68-678. 32. See e.g., In re Air Cargo Shipping Servs. Antitrust Litig., 2010 WL 1189341 (E.D.N.Y. Mar. 29, 2010); AccessData Corp. v. ALSTE Tech., 2010 WL 318477 (D. Utah Jan. 21, 2010); Gucci America, Inc. v. Curveal Fashion, 2010 WL 808639 (S.D.N.Y. Mar. 8, 2010); Astrazeneca v. Ranbaxy Pharm., Inc., 2008 WL 314627 (D.N.J. Jan. 29, 2008). 33. 242 F.R.D. 199 (E.D.N.Y. 2007). See also, Robert Hardaway, Dustin Berger, and Andrea Defield, E-Discovery’s Threat to Civil Litigation: Reevaluating Rule 26 for the DDigitial Age, 63 Rutgers L. Rev. 521 (Winter 2011). 34. See e.g., Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) (noting that §1782 is “the product of congressional efforts, over the span of nearly 150 years, to provide federal-court assistance in gathering evidence for use in foreign tribunals.”); Weber v. Finker, 544 F.3d 1379, 1385 (11th Cir. 2009). 35. Intel, 542 U.S. at 255 and 264 (noting that the statute authorizes, but does not require, a federal district court to provide assistance to a foreign tribunal). 36. In addition to meeting all of the §1782 requirements, the Supreme Court in Intel listed the following factors for a court to consider when determining whether to grant a §1782 request: (a) whether the party requesting assistance is a participant in the foreign proceeding, noting that nonparticipants in the foreign proceeding may be outside the foreign tribunal’s jurisdictional reach and, hence, their evidence, available in the United States, may be unobtainable absent §1782 aid; (b) the nature of the foreign tribunal; (c) the character of the proceedings underway abroad; (d) the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance; and (e) whether the §1782 request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States. 37. Intel, 542 U.S. at 252. 38. Lancaster Factoring Co. v. Mangone, 90 F.3d 38, 42 (2d Cir. 1996). 39. In re Letters Rogatory from the Tokyo Dist., Tokyo, Japan, 539 F.2d 1216, 1219 (9th Cir. 1976); In re Letter Rogatory from the Justice Court, Dist. of Montreal, Can., 523 F.2d 562, 565 (6th Cir. 1975). 40. Intel, 542 U.S. at 258. 41. Compare In re Application of Chevron Corp., 709 F. Supp. 2d 283 (S.D. N.Y. 2010) (holding that an arbitral tribunal established by an international treaty, which operated under rules of the United Nations Commission on International Trade Law (UNCITRAL) was a “foreign tribunal” for purposes of §1782); Ex rel Application of Winning (HK) Shipping Co. Ltd., 2010 WL 1796579 (S.D. Fla. 2010) (holding that although certain aspects of the anticipated arbitration were akin to a purely private arbitration, the arbitral body in this instance actually acted as a first-instance decision maker whose decisions were subject to judicial review, and thus operated as a foreign tribunal for purposes of §1782); and In re Babcock Borsig AG, 583 F. Supp. 2d 233 (D. Mass. 2008) (holding that a private, foreign arbitral body, operated by the International Chamber of Commerce, qualified as a “tribunal” within meaning of §1782) with El Paso Corp. v. La Comision Ejecutiva Hidroelectrica Del Rio Lempa, 341 Fed. Appx. 31 (5th Cir. 2009) (unreported opinion) (noting that “the question of whether a private international arbitration tribunal also qualifies as a “tribunal” under §1782 was not before the Court” in Intel, the Fifth Circuit upheld Republic of Kazakhstan v. Biedermann International, which 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.”) and In re Operadora DB Mexico, S.A. de C.V., 2009 WL 2423138 (M.D. Fla. 2009) (holding that a private arbitral tribunal constituted under the International Chamber of Commerce (ICC) International Court of Arbitration did not qualify as a foreign or international tribunal under 28 U.S.C.A. §1782, and thus, the federal district court lacked authority to provide discovery assistance). 42. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 260 (2004). See also Brandi-Dohrn v. IKB Deutsche Industriebank AG, __ F.3d __ (2nd Cir. 2012) (holding that a district court may issue a subpoena under Section 1782, even if the evidence sought would not be admissible in the foreign proceeding). 43. Id. at 262. 44. See In re Microsoft Corp., 428 F. Supp. 2d 188, 194 (S.D.N.Y. 2006) (“this Court has not found a single case where a court has granted §1782 discovery in the face of express objection by the foreign court where the underlying proceeding is pending.”); La Comision Ejecutiva Hidroelecctrica Del Rio Lempa v. El Paso Corp., 617 F. Supp. 2d 481, 487 (S.D. Tex. 2008) (court would not use its discretion to order discovery when arbitral tribunal expressly opposed the discovery request); In re Microsoft Corp., 2006 WL 825250, *3 (refusing to order discovery for use in European Commission proceeding where the Commission opposed the discovery). Juan M. Alcalá is a partner and head of the International Disputes Practice Group at Gardere, Wynne, Sewell, L.L.P., where he focuses on transnational disputes, particularly those involving Latin American countries.
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