Precisely!

That’s a good point, Vivian. My favorite cases, though, are those where the party seeking US discovery is French (or German, or whatever). The continental lawyers hold up their noses at our pretrial discovery system until they need it, and then they are like kids in a candy store (a broad overgeneralization, of course)!

Ted, I was referring to your reference to “having your cake and eating it too”, rather than to the Intel issue of what a “tribunal” is within the meaning of the statute: in the litigation situation the foreign plaintiff brings suit in France, yet may be able to gain discovery rights over a French defendant not available in France. Naturally the differences between an arbitral agreement where the parties originally may have had a shared purpose of avoiding U.S. discovery would remain a distinguishing factor, but the essential gist seems to me not so very different.

Vivian, thanks for the observation! It seems to me the situations are dissimilar, though. In the arbitration context, the question is, “what does the statute mean?” In the French context, the question is, “is the statute wise,” or “is the statute consistent with international law,” or whatever.