The case of the day is Webuild S.p.A. v. WSP USA, Inc. (2d Cir. 2024). It’s a Section 1782 case seeking evidence for use in an ICSID arbitration asserting violations of the Panama-Italy bilateral investment treaty. The question in the case was whether an ICSID arbitral tribunal is a foreign or international tribunal for purposes of Section 1782 such that, under ZF Automotive, a US court can order discovery in aid of the proceedings.

We know from ZF Automotive itself that not all investment treaty arbitrations come within the scope of Section 1782. The tribunal in the investment treaty case at issue in ZF Automotive was an ad hoc tribunal constituted under the UNCITRAL Rules. This case involved an ICSID tribunal. The two aren’t the same. The UNCITRAL Rules are just a set of rules that can apply to any ad hoc arbitration. ICSID is an international institution established by a treaty. The ICSID Rules are made by the states that are party to the ICSID Convention. The Convention addresses how arbitral tribunals are constituted, and the arbitrators are selected from a roster kept by ICSID made up of the states’ nominees if the parties cannot agree. And the Convention has special provisions on enforcement and annulment of awards that given them what the court called “heightened finality” but that give an ICSID committee the power to annul them.

The Second Circuit was not persuaded that the special features of ICSID, or the differences between ICSID arbitrations and arbitrations under the UNCITRAL Rules, made ICSID arbitral tribunals governmental in a way that UNCITRAL tribunals were not. But the discussion was quite short, and I am not sure what I think about it. If two states decide to arbitrate a dispute between them and establish an arbitral tribunal, is that tribunal is governmental, because the states have conferred governmental power on the tribunal? Does it matter if only one of the parties is a state? And what about the weird nature of investor-state arbitrations, where the investor is pursuing the kind of claims that, in the past, before the age of investment treaties, states pursued on behalf of their nationals?

Image credit: World Bank Group