What is a “Foreign or International Tribunal”?

by Roger Alford

Federal courts are often requested pursuant to 28 U.S.C. 1782 to assist with discovery in a case before a foreign or international tribunal. Traditionally that has been understood to exclude discovery before international arbitration tribunals. But last week a federal district court cast doubt on that rule. A New Jersey district court in In re Oxus Gold PLC, 2007 WL 1037387, ruled that, provided the private international arbitration is undertaken pursuant to a bilateral investment treaty, the arbitral tribunal constitutes a “foreign or international tribunal” within the meaning of Section 1782. I’ve never seen a definition that broad, and the case (although unpublished) raises interesting questions of how far we should stretch the statutory definition.

Section 1782 provides that:

“[t]he district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal…. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.”

It is surprisingly difficult to define what constitutes a “foreign or international tribunal.” Appellate courts have repeatedly held that private international arbitration is not a “foreign or international tribunal.” They also have looked at the legislative history and determined that the phrase should be interpreted broadly to include bodies of a quasi-judicial or administrative nature, as well as preliminary investigations leading to judicial proceedings. But beyond that, courts have struggled. For example, various courts have ruled that a French investigating magistrate was a tribunal, but that a foreign congressional committee or a foreign officer applying currency exchange regulations were not.

Having canvassed the caselaw in my previous scholarship (see here) I have argued that an international tribunal should be defined as

“an objective and impartial adjudicative body established by or with the imprimatur of two or more governments with the power to make a binding decision as to law or facts.”

That would seem to exclude almost all private international arbitration, as well as truth and reconciliation commissions and international human rights commissions that render non-binding decisions.

But In re Oxus Gold raises the vexing question of whether international arbitration tribunals established pursuant to a BIT (or something similar, like NAFTA Chapter 11) would qualify as a “foreign or international tribunal.” To the best of my knowledge this is the first time the question has ever arisen before a federal court.

I actually think it is an extremely difficult question. The respondent in such a case is a government entity, the investors’ rights to arbitration exist solely because two states confer that right upon them, and the panel is created pursuant to a joint agreement between a sovereign respondent and private petitioner. If you think of the investor as a third party beneficiary to a treaty between two states, then the BIT tribunal is, at a minimum, established with the imprimatur of two states. Thus, one could well argue that In re Oxus Gold is correct. Investment arbitration pursuant to a BIT is a “foreign or international tribunal” within the meaning of Section 1782, whereas most other private international arbitration tribunals are not. It seems odd to say that, particularly given how similar the arbitration proceedings are in private commercial arbitrations and BIT investment arbitrations. But one is established by contract, while the other is established by treaty.

http://opiniojuris.org/2007/04/11/what-is-a-foreign-or-international-tribunal/

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