Case of the Day: Thai-Lao Lignite v. Laos

The case of the day is Thai-Lao Lignite (Thailand) Co. v. Government of the Lao People’s Democratic Republic (S.D.N.Y. 2012). We have reported on this dispute twice before. In the first post, the judge confirmed an arbitral award in favor of Thai-Lao against Laos. In the second, the judge granted judicial assistance to Thai-Lao, which had brought an exequatur proceeding in Paris to confirm the award, seeking information from a third party about Laos’s assets in France. In today’s case of the day, the Thai-Lao sought judicial assistance to obtain evidence for use in the same French proceeding. This time, though, Thai-Lao sought to obtain evidence from Laos itself.

The judge correctly (in my view) dismissed the case on the grounds that Laos, a foreign sovereign, is not a “person” within the meaning of 28 U.S.C. § 1782. The leading case on this point is Al Fayed v. CIA, 229 F.3d 272 (D.C. Cir. 2000), in which the court, noting the general rule that the word “person”, when used in a statute, is not construed to include the sovereign, dismissed a quixotic attempt by Dodi Al Fayed to obtain information from the CIA for use in French proceedings involving the death of Diana, the Princess of Wales.

One consequence of this view, which I haven’t seen in a reported case, is that a foreign sovereign should not qualify as an “interested person” able to seek judicial assistance under the statute. Else the word “person” would have to be given two different constructions in the same statutory provision!

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. Folkman also serves as an arbitrator and is a member of the Commercial and Consumer Panels of the American Arbitration Association. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's treatise on International Aspects of US Litigation (J. Berger, ed. 2017), and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012 and 2014 - 2016.

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