In re Republic of Ecuador and Dr. Diego Garcia Carrion’s Application Under 28 U.S.C. Sec. 1782, 2:11-mc-00052 (GSA) (E.D. Cal. 2011), is an application the Ecuador among others to take the testimony in the U.S. of one Douglas M. Mackay. Chevron moved to stay the discovery application. The use to be made of the discovery is in connection with the international arbitration invovling Chevron under the Ecuador-U.S. Bilateral Investment Treaty. Chevron’s opposition is based on the allegation that the non-U.S. proceeding is a sham, “contending the foreign court was neither independent nor impartial”.
The District Court applied Section 1782 as written and broadly. (For a general discussion of this crucially important tool in international dispute resolution, see our treatment of Section 1782 in our e-book, International Practice: Topics and Trends).
Understanding that the statute “authorizes, but does not require, a federal district court to provide assistance to a complainant” in a non-U.S. proceeding, the Court identified the commonly employed factors in judging the issue, including...
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