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MEDWAY POWER LTD. v. TBV POWER LTD.

November 20, 1997

In the Matter of the Application of MEDWAY POWER LIMITED for an Order under 28 U.S.C. § 1782 to Conduct Discovery of GENERAL ELECTRIC COMPANY for use in an Arbitration pending in the United Kingdom against TBV POWER LIMITED and MARUBENI EUROPOWER LIMITED

KEVIN THOMAS DUFFY, U.S.D.J.


The opinion of the court was delivered by: DUFFY

KEVIN THOMAS DUFFY, U.S.D.J.:

 I.

 A full recitation of the background of the Arbitration is unnecessary as the issue here has little to do with those facts. The arbitrator, in a letter dated September 12, 1997, "directed that GE's documents are relevant and necessary for the fair determination of the dispute" in the Arbitration. (Campbell Aff. Ex. 4 at 2). This letter, however, is neither an order nor letters rogatory. Whether this Court should approve a petition under Section 1782 based upon an English arbitrator's request seeking discovery from an entity -- located in the Southern District and not a party to the arbitration -- appears to be one of first impression.

 II.

 Petitioner argues that an unofficial, private arbitration constitutes a "proceeding in a foreign or international tribunal" under Section 1782. At first glance, what adjudicatory bodies fall within the term "tribunal" may appear to be an exercise in semantics better left to a lexicographer than a district court judge. There are, however, distinctions that are important to this discussion. One dictionary defines "tribunal" as "a seat or bench upon which a judge or judges sit in a court" or "a court of justice." WEBSTER'S NEW WORLD DICTIONARY 1427 (3d College Ed. 1986). At oral arguments, I asked petitioner's counsel a series of hypotheticals concerning what weight he would give to rulings of tribunals, such as a feudal patriarch or a Bet Din (Jewish religious court). A feudal patriarch and a Bet Din may be referred to colloquially as tribunals, but are not tribunals in a formal sense. If they were tribunals under Section 1782, the potential discovery problems would be fascinating.

 A private arbitration generally has not been referred to as a tribunal. It is true that Section 1(a) of the English Arbitration Act of 1996 states, "the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense." Arbitration Act of 1996, Ch. 23 § 1(a) (Eng.), reprinted in INTL. HANDBOOK ON COMM. ARB. SUPPL. 23, Eng.: Annex I (Mar. 1997). That, however, does not make an arbitration a tribunal in the formal sense.

 III.

 I find that an arbitration is not a tribunal for the purposes of Section 1782. Congress intended this statute to assist official, governmental bodies exercising an adjudicatory function. The legislative history of Section 1782 does not suggest an intent to encompass unofficial, private arbitrations -- which Congress and the courts have consistently treated as creatures of a contract which a court should enforce just like any other obligation imposed by private agreement.

 
Arbitration differs critically from litigation in that arbitrators are not officials of foreign sovereign governments, but private persons tested with their decision-making authority most commonly as a result of private parties' entering into contractual arrangements for the private resolution of disputes.

 Lawrence W. Newman & Rafael Castilla, Production of Evidence through U.S. Courts for Use in International Arbitration, 9 J. INT'L ARB. 61, 69 (June 1992).

 Respondent's counsel aptly notes that the United States Code's consistent distinction between "tribunals" and "arbitrations" provides evidence that the ordinary understanding of "tribunal" does not encompass private arbitrations. (Resp. Mem. at 7-8); see, e.g., 5 U.S.C. § 552b(c)(10) (1997) (agency not required to disclose information concerning "the agency's participation in a civil action or proceeding, an action in a foreign court or international tribunal, or an arbitration").

 Furthermore, the legislative history of Section 1782 confirms Congress' intent in adding the term "tribunal" was to extend the statute to public, official adjudicatory proceedings. In 1964, the statute was amended to apply to a "proceeding in a foreign or international tribunal" rather than only to a "judicial proceeding," as the statute had previously provided. This change in language was intended to make the statute available to ...


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