Thanks, L. Conrad, for the note! I made a similar observation in my post on Ecuador’s judicial assistance application in Colorado, Ecuador v. Bjorkman. Note that in that case, Ecuador included its attorney general as one of the applicants for judicial assistance, which in my mind is a clear way around the Al Fayed problem, and which has accepted analogues elsewhere in US law (e.g., in some kinds of cases you sue the officer rather than the United States itself for sovereign immunity reasons).

I will take a look at the Fifth Circuit appeal you reference.

The Republic of Ecuador has sought judicial assistance under section 1782 in several Chevron/Ecuador proceedings including in the interesting appeal pending before the 5th Circuit, #12-20123.

A sovereign is a “person” when seeking judicial assistance under the statute but a not a”person” when judicial assistance is being sought from the sovereign? Somewhat of an anomaly.