Case of the Day: In re Application of Thai-Lao Lignite (Thailand) Co.
Posted on November 3, 2011
We reported on Thai-Lao Lignite (Thailand) Co. v. Government of the Lao People’s Democratic Republic (S.D.N.Y. 2011) back in August. In the prior case, the court confirmed an arbitral award in favor of Thai-Lao Lignite against the government of Laos.
Today’s case of the day, In re Application of Thai-Lao Lignite (Thailand) Co. (D.D.C. 2011), arises out of the same arbitration. After obtaining the award, Thai-Lao obtained confirmation of the award in the Paris Court of First Instance, and the Paris court obliged. Under French law (according to Thai-Lao Lignite), after confirmation the prevailing party can take steps to freeze the other party’s assets if it fails to pay voluntarily, as Laos allegedly had.
Thai-Lao requested judicial assistance from the court in Washington to serve a subpoena on Électricité de France International in order to discover French assets owned by Laos. In particular, EDFI was the principal owner and operator of Nam Theun 2, a hydroelectric power plant in Laos, and that revenues generated by the plant—in which Laos has an interest—pass through French banks and are attachable under French law.
In its ex parte application, Thai-Lao gave a Washington address for EDFI. But in a twist, the judge refused to rule ex parte and ordered Thai-Lao to serve the application on EDFI. Thai-Lao was unable to make service at the Washington address and sought to amend its application to give an address in Maryland. This, of course, raises red flags, since the statute requires that the target of a judicial assistance request must either reside or be found in the district where the application is brought. Thai-Lao therefore also alleged that “EDFI has continuous and systematic contacts with this District that are tantamount to EDFI’s being ‘found’ in this district pursuant to Section 1782.” Again, though, Thai-Lao could not effect service on EDFI at the Maryland address, but instead ended up serving EDF, Inc., a US-based holding company. Thai-Lao was forced to argue that service on EDF should qualify as service on EDFI, on an alter ego theory, or that it should be permitted to amend its application again to name EDF as the respondent.
Judge Bates held that the application should be dismissed as to EDFI and EFI on the grounds that neither was found in the District of Columbia. He went on to note that even if he had found that the statutory requirements were satisfied, he would have denied the application on discretionary grounds because most of the documents sought were in France, not in the US.
What is most puzzling about Thai-Lao’s application, to me at least, is that as we saw in the prior post, Thai-Lao obtained confirmation of the arbitral award in New York. Thus it seems to me that Thai-Lao has access to discovery in aid of its judgment under Rule 69(a)(2) of the Federal Rules of Civil Procedure:
In aid of the judgment or execution, the judgment creditor or a successor in interest whose interest appears of record may obtain discovery from any person—including the judgment debtor—as provided in these rules or by the procedure of the state where the court is located.
It seems to me that under Rule 69, the judgment creditor is entitled to discovery about the assets of the judgment debtor even if those assets are not located in the United States. Assuming that’s so, why frame your request as a request for discovery in aid of the French post-judgment proceeding? For one thing, you’d avoid the need for obtaining court permission to issue the subpoena (although, of course, the target of the subpoena could move to quash later, just as in a § 1782 proceeding).