The case of the day, In re Application of National Syndicate for Electric Energy (E.D. Va. 2014), is another in a recent group of unrelated cases indicating the limits of 28 U.S.C. § 1782, and in particular, the statute’s limitation to “foreign or international tribunals.” The National Syndicate for Electric Energy (SNEE) is a union of electrical workers in Cameroon. It was involved in a labor dispute with AES Corp., a US firm. In 2008, SNEE filed a complaint with a Ministry of Labor inspector seeking conciliation under the Cameroon Labor Code. Conciliation is a necessary prerequisite to arbitration. At the end of the conciliation, the labor inspector issues a report and refers the dispute to an arbitrator if the parties have not reached agreement.

Here, the labor inspector heard from the parties, but he never issued a report. The Douala High Court denied SNEE’s motion for an order requiring issuance of the report. The case never went to arbitration.

SNEE applied to the US court for judicial assistance. The judge denied the application on the grounds that SNEE was seeking evidence in aid of the conciliation proceeding, and that the conciliation was not a proceeding before a “foreign or international tribunal.” This conclusion seems correct, as the conciliator does not meet either of the two factors the Supreme Court noted as badges of tribunals in Intel: he is not engaged in adjudication, and he does not make a first-instance decision that is subject to judicial review.

The decision doesn’t discuss the matter, but I wonder whether there is an argument that because the conciliation process is supposed to end with either a settlement or a referral to an arbitrator, and because it seemed clear that the case was not going to settle, the arbitration was reasonably in contemplation: it’s settled that § 1782 can be used to gather evidence for proceeding even if they are not formally underway. But the court is silent on this question.