The case of the day is In re Alpene, Ltd. (E.D.N.Y. 2022). Alpene, a Hong Kong corporation, had a treaty arbitration claim against Malta, and it arbitration under ICSID arbitration. It sought discovery from Elizabeth McCaul, a New Yorker, under Section 1782. The case raises a question left open in the Supreme Court’s ZF Automotive case. We know from ZF Automotive that an ad hoc arbitral tribunal is not a foreign or international tribunal for purposes of Section 1782, even if the arbitration arises under an investment treaty, because such as tribunal is not sufficiently governmental. But what about an ICSID tribunal? ICSID, after all, operates under the auspices of the World Bank, which is an international organization, and states can nominate ICSID arbitrators and are represented on the ICSID administrative council. Is an ICSID tribunal sufficiently governmental?
The court, without much discussion, said no. It pointed out that comity did not weigh in favor of treating the tribunal as within the scope of Section 1782, because it could not provide reciprocal assistance to US litigants, it noted the point the Supreme Court noted in ZF about the “mismatch” between discovery available under Section 1782 and discovery available in domestic arbitration under Chapter 1 of the FAA, and it noted the general gist of the Supreme Court’s decision, which was to limit the scope of Section 1782 in international arbitration. But the discussion of all of these points was somewhat cursory, and there was no real discussion of what to me seems like the real point: what should we make of the differences between an ICSID tribunal and an ad hoc tribunal, and do they matter?
Its decision might be right or might be wrong, but either way, it seems to me insufficiently reasoned for such a significant issue. I hope the case will be appealed, or that another decision will give the issues a more thorough airing.
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