The case of the day is In re Application of Mesa Power Group, LLC (S.D. Fla. 2012). Mesa had commenced a NAFTA arbitration against Canada alleging inequitable treatment by the government of Ontario in the awarding of contracts in the renewable energy field. The arbitration was still at a very early phase—the notice of arbitration was filed in late 2011, and the parties were in the process of selecting an arbitrator.
Mesa applied for judicial assistance for issuance of a subpoena to NextEra Energy, a competitor. The judge granted the ex parte application, and NextEra then moved to quash the subpoena. The judge denied the motion after conducting a fairly standard Intel analysis. There were a few points of interest. First, the early stage of the NAFTA arbitration was irrelevant, since the statute itself makes it clear that the proceeding does not even have to have been commenced. Second, Mesa failed to prove that the tribunal ultimately would be receptive to the evidence, but there is no requirement that the applicant prove that the evidence is admissible, and absent any evidence that Mesa was trying to circumvent the tribunal’s proof-gathering rules, the receptivity factor does not weigh against judicial application.