The Eleventh Circuit Takes the Lead in Holding that a Private Commercial Arbitral Tribunal is a Foreign Tribunal under 28 U.S.C. § 1782

On June 25th, 2012 the Eleventh Circuit held that a private commercial arbitration in Ecuador is a tribunal for purposes of 28 U.S.C. § 1782, which allows U.S. courts to assist foreign and international tribunals, and litigants before such tribunals, in obtaining discovery in the United States for use in proceedings before such tribunals. In re Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 2012 WL 2369166 (11th. Cir. 2012) involves a private arbitration in Ecuador dealing with a shipping contract billing dispute between Jet Air Service Ecuador, S.A. (JASE) and Consorcio Ecuatoriano de Telecomunicaciones S.A. (CONECEL). CONECEL filed an application for judicial assistance before the District Court for the Southern District of Florida pursuant to 28 U.S.C. § 1782 seeking to obtain evidence from JASE’s U.S. counterpart, JAS Forwarding, Inc. (JAS USA) for the arbitration and a contemplated action against former employees involved in the overbilling. The District Court held that, as interpreted by the seminal United States Supreme Court caseIntel Corp. v. Advanced Micro Devices, Inc., the court actions CONECEL was seeking to bring against its former employees were within reasonable contemplation and were therefore covered by the statute.