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The Arbitration Review of the Americas 2017

Discovery in Aid of Arbitration under 28 USC 1782

This article addresses the use of 28 USC section 1782, which provides for US court assistance in evidence-gathering in foreign proceedings, to obtain discovery for use in private international arbitration. Initially, the law appeared settled that section 1782 was not available for this purpose. The Supreme Court’s decision in Intel Corporation v Advanced Micro Devices Inc1 changed this understanding and the lower US courts are now divided on whether section 1782 can be used in aid of arbitration. Where potential evidence is available from a person within the jurisdiction of a court that does permit this use, section 1782 can be a powerful tool to obtain US-style disclosure that goes far beyond what is typically permitted under international arbitration rules and practices.

The statute

Section 1782 allows the federal district courts in certain circumstances to assist with discovery ‘for use in a proceeding in a foreign or international tribunal.’ Specifically, section 1782(a) states in relevant part:

The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court ... The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.

The provision’s antecedents stretch back to 1855 and evince a consistent effort by Congress to facilitate foreign courts’ evidence-gathering in the United States,2 and, since the early twentieth century, a similar desire to assist at least some non-judicial fora.3 Its current version was enacted in 1964 in response to recommendations made by the Commission on International Rules of Judicial Procedure (Commission),4 which proposed the revisions as part of an effort to induce reciprocal procedural reforms by foreign jurisdictions.5 The new language significantly expanded the type of discovery available under section 17826 and the types of foreign or international proceedings for which such discovery could be used.7

District courts are permitted to order discovery under section 1782 when three conditions are met. First, the target of the discovery request ‘resides or is found’ in the district where the court sits. Second, the discovery requested is ‘for use in a proceeding in a foreign or international tribunal’. And third, the request is made by a foreign or international tribunal ‘or upon the application of any interested person’. Once a district court determines that these three prerequisites are satisfied, the decision to order discovery and in what form is left to its discretion, as informed by consideration of several factors set out by the Supreme Court in Intel.

Whether section 1782 can be used in arbitration turns on the second prerequisite – whether the arbitration qualifies as ‘a proceeding in a foreign or international tribunal’. If it does, then the US court may permit US-style discovery subject to its weighing of the Intel factors in each particular case.

The prerequisite: ‘for use in a proceeding in a foreign or international tribunal’

It seems fair to divide into three categories the arbitrations that could conceivably receive a federal court’s assistance under section 1782:8

  • interstate arbitration – that is, an arbitration between two nation states;
  • investor-state arbitration, which, although involving a private party, is the product of treaties among nation states; and
  • international commercial arbitration, which is a pure creature of contract.

There can be little doubt that the first type of international arbitration, interstate arbitration, is covered by section 1782. Although rare, its origins far predate the statute,9 and the legislative history suggests that Congress intended section 1782 to incorporate and replace certain laws enacted specifically in response to an arbitration between the United States and Canada in the 1930s.10 But there is real controversy about whether the latter two categories of arbitration involving private parties are covered by the statute.

The early answer to the question was a resounding ‘no’ – at least with respect to international commercial arbitration. In 1999, in NBC v Bear Stearns & Co, the Second Circuit held that ‘Congress did not intend for [section 1782] to apply to an arbitral body established by private parties.’11

NBC involved an application by one party to an arbitration administered by the International Chamber of Commerce (ICC) and sited in Mexico to subpoena documents from certain investment bank third parties doing business in the Southern District of New York.12 To decide whether an ICC arbitral tribunal was a ‘foreign or international tribunal,’ the court reviewed section 1782’s legislative history for evidence of Congress’s intent, and it also considered a law review article by Hans Smit discussed in the relevant Senate report.13 Professor Smit, who served as director of the Columbia Law School project that aided the Commission, wrote in 1962 that ‘an international tribunal owes both its existence and its power to an international agreement.’14 Based on the legislative history’s silence about the issue and Smit’s apparent understanding of the term ‘international tribunal,’ the court concluded that Congress intended section 1782 to reach only ‘governmental or intergovernmental arbitral tribunals and conventional courts and other state-sponsored adjudicatory bodies’.15 It expressly declined to attribute any weight to subsequent writings by Smit, in which he opined that section 1782 should be read to allow courts also to assist private arbitrations. These later writings, the court reasoned, could not have influenced Congress, coming, as they did, after the statute’s enactment.16

That the NBC court’s search for any mention of international commercial arbitration in section 1782’s legislative history turned up empty is unsurprising. When the statute was enacted in 1964, the United States had yet to ratify either the New York Convention or the Panama Convention and international commercial arbitration was in its infancy. Similarly, at that time, investor-state arbitration was virtually unknown.17

For arbitration practitioners, the more persuasive aspect of NBC may be its policy analysis, to which the court turned to ‘reinforce’ its conclusion.18 The court noted that ‘[t]he popularity of arbitration rests in considerable part on its asserted efficiency and cost effectiveness,’ qualities said to be ‘especially at odds with the broad-ranging discovery made possible by the Federal Rules of Civil Procedure.’19 And it further noted that parties to an international commercial arbitration may agree ex ante on the scope of discovery, and generally these agreements lead the parties to expect far less discovery than they would have in US civil litigation.20 These expectations would be defeated if one party could unilaterally avail itself of the expansive discovery available through the Federal Rules by recourse to section 1782. Lurking behind this warning may also have been a concern that the parties’ expectations of parity or equality of arms could be defeated, since the district court’s jurisdiction is limited to those persons residing or ‘found’ in the district, creating the risk that one party could obtain evidence unavailable to the other party simply because of the location of that evidence.

Less than two months after NBC, the Fifth Circuit followed suit in Republic of Kazakhstan v Biedermann International.21 On facts very similar to those of NBC,22 the court reviewed section 1782’s legislative history and, like the Second Circuit, concluded that ‘[t]here is no contemporaneous evidence that Congress contemplated extending section 1782 to the then-novel arena of international commercial arbitration.’23 Turning to policy considerations, it echoed those of the Second Circuit and took a dim view of court-ordered discovery assistance to international arbitral tribunals generally.

Empowering arbitrators or, worse, the parties in private international disputes to seek ancillary discovery through the federal courts does not benefit the arbitration process. Arbitration is intended as a speedy, economical, and effective means of dispute resolution. The course of the litigation before us suggests that arbitration’s principal advantages may be destroyed if the parties succumb to fighting over burdensome discovery requests far from the place of arbitration.24

After NBC and Biedermann, the question of section 1782’s unavailability for private international arbitration seemed resolved. This changed in 2004 when the Supreme Court decided Intel,25 which did not involve arbitration at all, but proved to be the opening to a much more friendly view of the use of section 1782 in aid of arbitration.

In Intel the question was whether a ‘foreign or international tribunal’ for the purposes of section 1782 discovery included the Directorate-General for Competition of the Commission of the European Communities (DG-Competition). Although the DG-Competition is not a court, the Supreme Court held that its proceedings were sufficiently judicial in nature and that they should fall within the ambit of section 1782, because the legislative history of the statute suggested that Congress wished to extend section 1782 to ‘quasi-judicial proceedings’. As further support for this understanding, it quoted a 1965 article by Hans Smit: ‘[t]he term “tribunal”... includes investigating magistrates, administrative and arbitral tribunals, and quasi-judicial agencies, as well as conventional civil, criminal, and administrative courts.’26 Ironically, the latter was precisely the type of authority the court in NBC had rejected because it post-dated the enactment of the statute.

Having decided that DG-Competition was a ‘foreign or international tribunal’ covered by section 1782, the Supreme Court went on to set forth four non-exhaustive facts to guide district courts’ discretion in providing for discovery under the statute. The first factor is whether the target of the discovery is a participant in the foreign proceeding. US court-ordered discovery is less likely to be needed against a participant because the foreign or international tribunal will have jurisdiction over him or her and may order the discovery itself. The second factor is the nature of the foreign tribunal and whether this tribunal is likely to be receptive to assistance from a US court. The third factor is whether the section 1782 request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States. And the fourth factor is whether the request is unduly burdensome or intrusive.27

Despite the fact that its only reference to arbitration was the quotation from Smit’s 1965 article, Intel opened the way to some US lower courts taking a more favourable view of using section 1782 in private commercial arbitration. In the first case to take up the issue, In re Roz Trading Ltd, a court in the Northern District of Georgia stated that Intel had ‘provided sufficient guidance for this Court to determine that arbitral panels convened by the [International Arbitral Centre of the Austrian Federal Economic Chamber in Vienna] are “tribunals” within the statute’s scope’.28 Roz started a line of conflicting decisions in the Eleventh Circuit29 that culminated – at least for now – with a panel of that Court first holding unequivocally that the tribunal in an international commercial arbitration ‘is a foreign tribunal for purposes of the statute,’30 only to withdraw and replace the decision a year-and-a-half later with an opinion in which it expressly declined to reach the issue.31

Division exists within the Second Circuit as well. Although NBC is still good law there, having never been overruled,32 a magistrate judge in the District of Connecticut concluded that an international commercial arbitration held under auspices of the Arbitration Institute of the Stockholm Chamber of Commerce was covered by section 1782 because the arbitral tribunal had not issued any orders precluding discovery and the proceeding was taking place under UNCITRAL rules.33 Neither of these factors were meaningful under NBC’s analysis – nor for that matter Intel’s34 – but the decision was not appealed and the case has been cited by other courts.35

The same divergence of authority exists elsewhere. In the First, Third, Eighth and DC Circuits, district courts have held that at least some types of private arbitral tribunal are within the ambit of the statute,36 while their counterparts in the Fifth, Seventh, Ninth and Tenth Circuits have held that at least some types of private arbitral tribunal are not covered.37 In one striking instance, the same arbitration proceeding has produced conflicting decisions in different district courts.38

Post-Intel decisions in the courts of appeal themselves have varied. As previously noted, the Eleventh Circuit took up the question, but ultimately decided to save it for a later date.39 The Third Circuit has stated that use of materials gathered through section 1782 discovery in an investor-state arbitration ‘unquestionably would be “for use in a proceeding in a foreign or international tribunal”,’40 but it did so without any analysis or citation.41 And the Second Circuit, when given an opportunity either to endorse or cabin NBC in the context of an investor-state arbitration, declined.42 Only the Fifth Circuit has directly addressed the applicability of section 1782 in the wake of Intel, and it stood firmly behind its previous decision in Biedermann.43

Further complicating the landscape is the effort by some district courts to distinguish investor-state arbitrations from international commercial arbitrations, ostensibly on the greater role nations play in establishing the former. There may be merit to the exercise,44 but in practice courts have often relied on entirely extraneous factors in determining that section 1782 should be applied. In In re Oxus Gold PLC,45 for example, the court based its decision to grant discovery on the parties’ use of UNCITRAL rules in their investor-state arbitration.46 It is not clear whether the court believed this factor was important because it thought that use of the rules signified that the United Nations was involved, or because, as it implied, it thought the Rules themselves constitute a type of ‘international law’.47 In any event, both premises are false.48 Notwithstanding its analytical flaws, Oxus Gold, has been repeatedly cited by courts for the proposition that investor-state arbitrations qualify as ‘foreign or international tribunals’.49

Most of the other investor-state arbitration cases to date relate to a dispute between Chevron and certain Ecuadorian parties, which included an arbitration between Chevron and Ecuador pursuant to a bilateral investment treaty between Ecuador and the United States. Because the discovery Chevron sought in multiple district courts through section 1782 was also for use in civil and criminal proceedings in Ecuador – which clearly satisfied the statute’s requirement – courts did not need to determine whether the arbitration was captured as well.50 Many courts nonetheless did so, but usually in cursory dicta.51

The principal disagreement among the district courts about whether they can authorise discovery for use in either type of private arbitration centres on two aspects of Intel. First, the Supreme Court’s quotation of Hans Smit’s 1965 article in which he defined ‘tribunal’ to include ‘arbitral tribunals’. Several courts have read the relevant passage of Intel to simply provide a list of all adjudicatory bodies covered by section 1782.52 Their rationale is that because the Supreme Court ‘quoted approvingly language that included “arbitral tribunals with the term’s meaning in section 1782(a)”,’ it must have endorsed the entirety of that language.53 Other courts have vigorously disputed that the Supreme Court intended Smit’s article to support anything more than the proposition for which it was cited – that Congress intended section 1782 to cover quasi-judicial bodies.54

Second, there has been a tendency for courts to compare the characteristics of the arbitral tribunal at issue in their cases with those of DG-Competition in Intel, often in woefully uniformed ways.55 However, other courts have pointed out that the qualities the Supreme Court considered important in characterising DG-Competition as a foreign tribunal were necessarily driven by the facts of that case, which entailed questions about DG-Competition’s adjudicative function, but left no doubt as to its state character.56

The discretionary factors

Courts that construe section 1782 as allowing for discovery in international commercial or investor-state arbitration often apply the four Intel factors in a mechanical fashion, analysing each in turn and declining to discuss any additional factors.57 Very seldom has the fact that the foreign proceeding is an international arbitration been meaningfully considered. Indeed, for the two factors that are most likely to be affected by this fact – the receptivity of the tribunal to assistance and efforts to circumvent foreign proof-gathering rules – the most common scenario has been a lack of evidence pointing in either direction.58 Thus, much of the debate has been about which party has the burden of introducing evidence on these factors. The traditional rule has been that the target of the discovery request must prove that the foreign tribunal is not receptive to assistance or that the proponent of the discovery is acting in bad faith.59 Recent decisions, especially in the District of Massachusetts, however, have called this into question.60

One court expressly adjusted its analysis of the discretionary factors to account for the fact that the foreign tribunal was a private international arbitral tribunal. In In re Application of Chevron Corp, the court noted that the arbitration at issue, ‘is authorised by a treaty between the United States and Ecuador and, as far as this court understands, there is nothing to indicate that the international tribunal’s processes are inadequate to obtain the discovery sought here’.61 It continued, ‘since international arbitrators usually control the discovery process, this court believes it should exercise at least some restraint before granting the instant section 1782 application.’62 The court then criticised the applicant, Chevron, for not disclosing the arbitral tribunal’s ‘discovery practices and needs’.63

Conclusion

The best that can be said 12 years after Intel is that there is no consensus on whether section 1782 can be used for evidence-gathering in international arbitration. It may seem remarkable that so many courts have permitted its use in arbitration, when neither the statutory text nor the legislative history support that use, and when the whole concept of US-style discovery is antithetical to the much more restrained scope of disclosure permitted under the IBA Rules and international arbitration practice. Nonetheless, should a participant in an international arbitration be fortunate enough to find itself in a position in which it can obtain non-party evidence from a person in a US jurisdiction that has taken the view that section 1782 is applicable to international arbitration, it has at its disposal a significant tool for evidence-gathering that is not available anywhere else in the world.

Notes

1     542 U.S. 198 (2004).

2     See, eg, Act of 2 March 1855, Chapter 140 section 2, 10 Stat. 630 (authorising appointment of federal commissioner to examine witnesses upon receipt of letter rogatory from foreign court).

3     See, eg, Act of 3 July 1930, Chapter 851 sections 1-4, 46 Stat. 1005-1006 (authorising members of international tribunals and commissions to subpoena attendance and testimony of witnesses and production of documents).

4     Congress created the commission to ‘study existing practices of judicial assistance and cooperation between the United States and foreign countries with a view to achieving improvements.’ Act of 2 September 1958, Pub. L. 85-906 section 2, 72 Stat. 1743.

5     See H.R. Doc. No. 88-88, at 20 (1963).

6     See S.Rep. No. 88-1580 (1964), reprinted in 1964 U.S.C.C.A.N. 3783, 3788 (‘Senate Report’) (noting extension of judicial assistance beyond testimony and statements to documents and tangible evidence).

7     See id. (noting extension beyond assistance to ‘conventional courts’ to include ‘administrative and quasi-judicial proceedings’).

8     See S.I. Strong, ‘Discovery Under 28 U.S.C. § 1782: Distinguishing International Commercial Arbitration and International Investment Arbitration’, 1 Stanford Journal of Complex Litigation 295, 301 (2013).

9     Id. at 301.

10   See Senate Report at 3784-85 (commenting that section 1782 will expand on soon to be repealed 28 U.S.C. sections 270-270(c)); Hans Smit, ‘Assistance Rendered by the United States in Proceedings Before International Tribunals’, 62 Columbia Law Review 1264, 1264 (1962) (noting origin of sections 270 et seq.).

11   165 F.3d 184, 191 (2d Cir. 1999).

12   See id. at 186.

13   See id. at 190.

14   See id. (quoting Smit, supra note 10, at 1267).

15   Id.

16   See id. at 190 n.6 (addressing Hans Smit, ‘American Assistance to Litigation in Foreign and International Tribunals’, 25 Syracuse J. Int’l L. & Com. 1 (1998)).

17   See Strong, supra note 8, at 304-05 & nn. 48-49.

18   NBC, 165 F.3d at 191.

19   Id. at 190-91.

20   See id. at 191.

21   168 F.3d 880 (5th Cir. 1999).

22   Although the arbitration at issue in Biedermann involved a state party, it appears to have been an international commercial arbitration of purely contractual origin. See Obj. of Biedermann Int’l to the Rep. of Kazakhstan’s Application for Expedited Assistance Pursuant to 28 U.S.C. section 1782 at 1, In re Application of the Republic of Kazakhstan, No. 980425 (E.D. Tex. 13 November 1998).

23   Biedermann, 168 F.3d at 882.

24   Id. at 883.

25   542 U.S. 198 (2004).

26   Id. at 258 (quoting Hans Smit, ‘International Litigation under the Unites States Code’, 65 Columbia Law Review 1015, 1026-27 (1965)) (emphasis added).

27   Id. at 264.

28   469 F. Supp 2d 1221, 1224 (N.D. Ga. 2006).

29   Compare In re Application of Operadora DB Mexico, SA, No. 09-CV-383, 2009 WL 2423138 (M.D. Fla. 4 August 2009) (holding that an ICC arbitration pending in Mexico is not covered by section 1782) and In re Finserve Group, Ltd, No. 11-MC-2044, 2011 WL 5024264 (D.S.C. 20 October 2011) (expressing doubt that an international commercial arbitration in London is covered) with In re Application of Winning (HK) Shipping Co, No. 09-MC-22659, 2009 WL 179579 (S.D. Fla. 20 April 2010) (holding that an international commercial arbitration in London is covered by section 1782).

30   Consorcio Ecuatoriano v JAS Forwarding (USA), 685 F.3d 987, 990 (11th Cir. 2012), vacated and superseded 747 F.3d 1262 (11th Cir. 2014).

31   See Consorcio Ecuatoriano v JAS Forwarding (USA), 747 F.3d 1262, 1269-70 (11th Cir. 2014).

32   See Operadora, 2009 WL 2423138, *11 (‘This Court is confident that the Supreme Court would not have . . . reversed NBC and Biedermann – without even acknowledging their existence – in a parenthetical quotation supporting an unrelated proposition.’).

33   See OJSC Ukrnafta v Carpatsky Petroleum Corp, No. 09-MC-265, 2009 WL 2877156, *4 (D. Conn. 27 August 2009).

34   It is difficult to understand how either factor bears on the question of whether a tribunal presiding over a private arbitration qualifies as a ‘foreign or international tribunal’ for the purposes of the statute. The tribunal’s orders respecting discovery may relate to the discretionary factors discussed in Intel, but they do not affect the nature of the tribunal. Similarly, the parties’ agreement to use one type of arbitration rules – eg, UNCITRAL – over another type of rules has little if anything to do with the tribunal’s function or the source of its authority. The Uknafta court’s invocation of the UNCITRAL rules may signal that it erroneously believed that the United Nations was somehow sponsoring or involved with the arbitration – a frequent misconception among district courts interpreting section 1782. See Strong, supra note 8, at 307-08.

35   See, eg, In re Application of Chevron Corp, 709 F. Supp 2d 283, 291 & n.45 (citing Uknafta for the proposition that district courts ‘have followed the Supreme Court’s dictum and held that international arbitral bodies operating under UNCITRAL rules constitute ‘foreign tribunals’ for the purposes of § 1782.’), aff’d on other grounds sub nom. Chevron Corp v Berlinger, 629 F.3d 297 (2d Cir. 2011).

36   See, eg, Chevron Corp v Shefftz, 754 F. Supp 2d 254 (D. Mass 2010); In re Babcock Borsig AG, 583 F. Supp 2d 233 (D. Mass 2008); In re Application of Owl Shipping LLC, No. 14-CV-5655, 2014 WL 5320192 (D.N.J. 17 October 2014); In re Application of Mesa Power Group, No. 11-MC-270, 2013 WL 1890222 (D.N.J. 19 April 2013); Comisión Ejectuiva Hidroeléctrica v Nejapa Power Co, No. 08-C.A.-135, 2008 WL 4809035 (D. Del. 14 October 2008); In re Oxus Gold, PLC, No. 06-MC-82, 2007 WL 1037387 (D.N.J. 2 April 2007); Gov’t of Ghana v ProEnergy Servs LLC, No. 11-MC-9002, 2011 WL 2652755 (W.D. Mo. 6 June 2011); In re Hallmark Capital Corp, 534 F. Supp 2d 951 (D. Minn. 2007); In re Application of Reis Veiga, 746 F. Supp 2d 8 (D.D.C. 2010).

37   See, eg, La Comision Ejecutiva Hidroelectrica v El Paso, 617 F. Supp 2d 481 (S.D. Tex. 2008); In re an Arbitration in London, 626 F. Supp 2d 882 (N.D. Ill. 2009); In re Application of Grupo Unidos or El Canal SA, No. 14-MC-80277, 2015 WL 1815251 (N.D. Cal. 21 April 2015); In re Application of Dubey, 949 F. Supp 2d 990 (C.D. Cal. 2013); In re Application of Grupo Unidos Por El Canal, SA, No. 14-MC-00226, 2015 WL 1810135 (D. Col. 17 April 2015).

38   Compare Comisión Ejecutiva Hidroeléctrica v Nejapa Power Co, No. 08-C.A.-135, 2008 WL 48909035 (D. Del. 14 October 2008) (‘[T]he Supreme Court’s decision in Intel (and post-Intel decisions from other district courts) indicate that § 1782 does indeed apply to private foreign arbitrations.’), appeal dismissed as moot 341 Fed. App’x 821 (3d Cir. 3 August 2009) with La Comision Ejecutiva Hidroelectrica v El Paso, 617 F. Supp 2d 481 (S.D. Tex. 2008) (holding that under ‘controlling precedent’ of Biedermann, the same arbitration tribunal is outside the scope of the statute), aff’d sub nom. El Paso Corp v La Comision Ejecutiva Hidroelectrica, 341 Fed. App’x 31 (5th Cir. 6 August 2009).

39   See supra text accompanying notes 30-31.

40   In re Chevron Corp, 633 F.3d 153, 161 (3d Cir. 2011) (quoting section 1782).

41   Furthermore, this statement was not needed to support the discovery order under section 1782 in that case, since the discovery sought was also to be used in civil and criminal proceedings before Ecuadorian courts that clearly qualify as ‘foreign tribunals’ for the purposes of the statute. See In re Chevron Corp, 633 F.3d at 159.

42   See Chevron Corp v Berlinger, 629 F.3d 297, 310-11 (2d Cir. 2011) (stating with respect to appellant’s claim that the arbitration was outside the scope of section 1782, ‘we do not reach the argument. . . . it is clear that the Lago Agrio litigation and the criminal prosecutions of Pérez and Reis are covered by the statute. These proceedings provided and adequate basis for the district court’s protection order.’)

43   See El Paso Corp v La Comision Ejecutiva Hidroelectrica, 341 Fed. App’x 31, 34 (5th Cir. 6 August 2009) (‘The question of whether a private arbitration tribunal also qualifies as a “tribunal” under § 1782 was not before the Court. . . . Because we cannot overrule the decision of a prior panel unless such ruling is unequivocally directed by the controlling Supreme Court precedent, we remain bound by our holding in Biedermann.’ (quotation marks omitted, emphasis in the original)).

44   See Strong, supra note 8, at 332-338 (recognising that, although both investor-state and international commercial arbitration depend on a mixture of public and private grants of jurisdiction, the public grant of jurisdiction to investor-state arbitration is more direct); id. at 353 (acknowledging that investor-state arbitration may entail greater public interests in the outcome or process of the proceeding than do international commercial arbitrations).

45   No. 07-MISC-82, 2007 WL 1037387 (D.N.J. 2 April 2007).

46   See id. at *5.

47   See id.

48   See Strong, supra note 8, at 307-08.

49   See, eg, In re Application of Dubey, 949 F. Supp 2d 990, 994 (C.D. Cal. 2013); In re Application of Mesa Power Group, No. 11-MC-270, 2013 WL 1890222, *5 (D.N.J. 19 April 2013); In re Application of Reis Veiga, 746 F. Supp 2d 8, 22 (D.D.C. 2010); In re Application of Chevron Corp, 709 F. Supp 2d 283, 291 & n.45, aff’d on other grounds sub nom. Chevron Corp v Berlinger, 629 F.3d 297 (2d Cir. 2011).

50   See Chevron Corp v Berlinger, 629 F.3d 297, 310-11 (2d Cir. 2011).

51   See, eg, In re Chevron Corp, 633 F.3d 153, 161 (3d Cir. 2011); Chevron Corp v Shefftz, 754 F. Supp 2d 254 (D. Mass 2010); In re Application of Reis Veiga, 746 F. Supp 2d 8, 22 (D.D.C. 2010).

52   See, eg, Gov’t of Ghana v ProEnergy Servs LLC, No. 11-MC-9002, 2011 WL 2652755, *3 (W.D. Mo. 6 June 2011); In re Babcock Borsig AG, 583 F. Supp 2d 233, 238-39 (D. Mass 2008); In re Hallmark Capital Corp, 534 F. Supp 2d 951, 955-56 (D. Minn. 2007); Roz Trading, 469 F. Supp 2d at 1225.

53   See Roz Trading, 469 F. Supp 2d at 1225; see also Hallmark, 534 F. Supp 2d at 955 (‘[T]he Court cited Prof. Smit’s 1965 article no less than six times, all apparently with approval.’).

54   See, eg, In re Application of Operadora DB Mexico, SA, No. 09-CV-383, 2009 WL 2423138, *11 (M.D. Fla. 4 August 2009); In re an Arbitration in London, 626 F. Supp 2d 882, 885 (N.D. Ill. 2009); La Comision Ejecutiva Hidroelectrica v El Paso, 617 F. Supp 2d 481, 486 (S.D. Tex. 2008).

55   See, eg, In re Application of Winning (HK) Shipping Co, No. 09-MC-22659, 2009 WL 179579, *8 (S.D. Fla. 20 April 2010) (‘[T]he arbitral body in this instance actually acts as a first-instance decision maker whose decisions are subject to judicial review.’); Babcock Borsig AG, 583 F. Supp 2d at 38 (‘The ICC, like the European Commission, is a first-instance decision-maker that conducts proceedings which lead to a dispositive ruling.’ (quotation marks omitted)).

56   See, eg, Operadora, 2009 WL 2423138, *10 (‘[T]he criteria adopted by [the] Supreme Court for its functional analysis in Intel were based, in part, on the particular characteristics of the DG-Competition and European Commission. The Supreme Court did not consider whether additional criteria would be relevant if it were to consider a different kind of proceeding.’); La Comision Ejecutiva, 617 F. Supp 2d at 486 (‘[T]he fact that the D-G Commission acted as a quasi-adjudicative proceeding before review by true judiciary powers makes it an animal of a very different stripe from an arbitral tribunal.’).

57   See, eg, In re Application of Mesa Power Group, No. 11-MC-270, 2013 WL 1890222 (D. N.J. 19 April 2013); In re Application of Winning (HK) Shipping Co, No. 09-MC-22659, 2009 WL 179579, *10 (S.D. Fla. 20 April 2010); OJSC Ukrnafta v Carpatsky Petroleum Corp, No. 09-MC-265, 2009 WL 2877156, *5 (D. Conn. 27 August 2009).

58   See, eg, Finserve Group, Ltd, No. 11-MC-2044, 2011 WL 5024264, *3 (D.S.C. 20 October 2011); Ukrnafta, 2009 WL 2877156, *5; In re Babcock Borsig AG, 583 F. Supp 2d 233, 241 (D. Mass 2008).

59   See, eg, In re Chevron Corp, 633 F.3d 153, 162 (3d Cir. 2011); In re Application of Reis Veiga, 746 F. Supp 2d 8, 24 (D.D.C. 2010).

60   See In re Application of Chevron Corp, 762 F. Supp 2d 242, 252 (D. Mass 2010) (‘[T]his court is reluctant to readily impose the burden of proving ‘non-receptivity’ on a respondent to a § 1782 application.’ (emphasis in the original)); Chevron Corp v Shefftz, 754 F. Supp 2d 254, 261 (D. Mass 2010) (noting ‘two views’ on burden); In re Babcock Borsig AG, 583 F. Supp 2d 233, 241 (D. Mass 2008) (denying a section 1782 application where ‘neither party has presented authoritative proof regarding the receptivity of the ICC to the discovery materials requested’); see also Finserve, 2011 WL 5024264, *3 (same).

61   Application of Chevron Corp, 762 F. Supp 2d at 251.

62   Id.

63   Id.