And GEA must have known that Flex-N-Gate could have asked the distict judge to provide evidence to a “foreign or international tribunal,” as district judges are authorized to do by 28 U.S.C. § 1782; see, e.g., Heraeus Kulzer, GmbH v. Biomet, Inc., 633 F.3d 591, 593 (7th Cir. 2011). The German panel conducting the arbitration between GEA and Flex-N-Gate might be considered such a tribunal. See Consorcio Ecuatoriano de Telecommunicaciones S.A. v. JAS Forwarding (USA), Inc., 685 F.3d 987, 997-98 (11th Cir. 2012). (Or might not—the applicability of section 1782 to evidence sought for use in a foreign arbitration proceeding is uncertain. See S.I. Strong, “Discovery Under 28 U.S.C. § 1782: Distinguishing International Commercial Arbitration and International Investment Arbitration,” 1 Stan. J. Complex Litig. 295 (2013)).
The second case, In re Application of Consorcio Ecuatoriano de Telecomunicaciones S.A. (11th Cir. 2014), is more interesting. In a prior decision—the same decision Judge Posner cited—the Eleventh Circuit, had clearly held that a private arbitral tribunal was a “tribunal” for purposes of § 1782. But in the new decision, the court, on its own motion, withdrew its prior decision and substituted a new decision that reached the same result, but without the necessity of reaching any conclusion about arbitral tribunals a “tribunals” for purposes of the statute. Instead, the court based its decision affirming the decision to grant the § 1782 application on the fact that the applicant was contemplating judicial proceedings in Ecuador.
The upshot? One of the leading cases standing for the proposition that an arbitral tribunal is a “tribunal” under § 1782 is no longer good law. And Judge Posner thinks there’s something to Professor Strong’s doubts on the question.
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