ICSID (International Centre for Settlement of Investment Disputes)Arbitration Does Not Qualify as a Foreign Tribunal under 28 U.S.C. § 1782:A U.S. District Court Decision

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On October 27, 2022, the U.S. District Court for the Eastern District of New York in the Case of Alpene, Ltd. v. Republic of Malta has issued a decision in In re Application of Alpene, Ltd., No. 21 MC 2547. The case involved Alpene, Ltd., a Hong Kong corporation, who was seeking an order authorizing subpoenas for documents and testimony from an individual residing in New York in connection with an investor-state treaty arbitration against the Republic of Malta before the World Bank’s International Centre for the Settlement of Investment Disputes (ICSID).

Alpene relied on 28 U.S.C. § 1782, which authorizes federal courts to order U.S. persons to provide documents and testimony “for use in a proceeding in a foreign or international tribunal.” However, the district court later stayed its order and requested briefing based on the U.S. Supreme Court’s intervening decision in ZF Auto. US, Inc. v. Luxshare, Ltd. The Supreme Court determined that 28 U.S.C. § 1782 “reaches only governmental or intergovernmental adjudicative bodies” and that “private adjudicative bodies” cannot be foreign tribunals.

Applying this new decision, the district court reviewed the characteristics of ICSID, including Malta’s and China’s memberships therein, and determined that there was no clear indication that Malta or China intended to imbue ICSID with governmental authority. The court also noted that the bilateral investment treaty at issue gave the parties the choice of using domestic courts in lieu of ICSID arbitration and that ICSID tribunals had no authority to provide reciprocal assistance for U.S. proceedings.

Determining that ICSID did not qualify as a “foreign or international tribunal” under § 1782, the court denied Alpene’s requested document and deposition subpoenas and instead granted the New York resident’s motion to vacate and entered an order quashing the subpoenas.

This decision serves as a reminder of the importance of carefully considering the nature of the tribunal involved when seeking discovery under 28 U.S.C. § 1782. The Supreme Court’s decision in ZF Auto has narrowed the scope of tribunals that may qualify as “foreign or international tribunals” under § 1782, and parties must be mindful of this when seeking discovery in connection with foreign proceedings. The decision also highlights the importance of cooperation and mutual assistance between the U.S. and foreign countries in the context of international arbitration, as well as the need to balance the scope of discovery allowed in foreign and domestic arbitrations.