December 21, 2012 Articles

Eleventh Circuit Holds Foreign Arbitration Panel Is a Tribunal

By Elizabeth C. Wolicki

In a ruling that may dramatically expand the scope of discovery in international arbitrations, the Eleventh Circuit recently allowed a party to an arbitration proceeding in Ecuador to obtain discovery through 28 U.S.C. 1782, holding that a foreign arbitration panel is a tribunal under the statute. This ruling, based on the Supreme Court's 2004 decision in Intel Corp. v. Advanced Micro Devices, Inc., is at odds with decisions from the Second and Fifth Circuits, which predate the Intel decision.

In Consorcio Ecuatoriano de Telecomunicaciones v. JAS Forwarding (USA), Inc., 685 F. 3d 987 (11th Cir. 2012), the Eleventh Circuit held that a foreign arbitration panel is a tribunal within the meaning of 28 U.S.C. ยง 1782 and allowed a party to that proceeding to obtain discovery through that statute. This ruling has the potential to greatly increase the amount of discovery available to parties engaged in international arbitration.

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