Keywords: foreign commercial arbitration,
discovery, Consorcio Ecuatoriano de Telecomunicaciones
The US Court of Appeals for the Eleventh Circuit, in Consorcio
Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA),
Inc.,1 has held that a foreign arbitration panel is a
"tribunal" within the meaning of 28 U.S.C. §1782,
thereby authorizing parties to such arbitrations to seek discovery
from a United States district court pursuant to that
Section 1782 authorizes a US district court to order a person
residing in that district to produce documents and provide
testimony "for use in a proceeding in a foreign or
international tribunal." Prior to 2004, two federal courts of
appeals (the 2d and 5th Circuits) had held that an arbitration
panel is not a "tribunal" within the meaning of
§1782. But dicta from the US Supreme Court in Intel Corp. v.
Advanced Micro Devices, Inc., 542 U.S. 241 (2004), suggested
otherwise, and most district courts thereafter have deemed
arbitration panels to be tribunals for purposes of §1782.
However, some district courts and commentators have suggested that
only investment treaty arbitrators, and not international
commercial arbitrators, qualify as a tribunal under §1782.
The Eleventh Circuit decision in Consorcio Ecuatoriano is the
first appellate court decision to address this "tribunal"
issue squarely since the Supreme Court's Intel decision. The
Eleventh Circuit ruled that the arbitral panel at issue, which is
sited in Ecuador, is a tribunal because it is a first-instance
decision-maker with authority over the gathering and submission of
evidence and with the power to issue binding orders that are
subject to judicial review.
This ruling is likely to be controversial, because it may enable
parties to circumvent the limited document disclosures that
typically are available in international arbitration by seeking
broad discovery from a US affiliate of the opposing arbitral party.
We therefore expect to see further battles over this issue in other
federal circuits, and perhaps definitive Supreme Court resolution
in the future.
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issues and developments of interest. The foregoing is not a
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In a recent decision characterizing precedent as a seven decade "aberration," the Supreme Court of California permitted plaintiff loan borrowers to introduce against a defendant banking institution parol evidence directly contradicting the very terms of the parties’ written loan agreement.