In re an Arbitration in London, England between Northfolk Southern Corp. et al v. ACE Bermuda LTD (Northern District Ill., June 15, 2009)
The named insured and named party in a London reinsurance arbritration requested that the district court order a non-party witness to testify in the arbitration. The movants relied exclusively on 28 U.S.C. §1782, which provides a district court with the inherent power to order a person to testify or provide documents for use in a proceeding in a foreign or international tribunal.
The non-party argued that the scope of 28 U.S.C. §1782 was limited to only governmental entities. In reaching its decision, the District Court analyzed the recent Supreme Court case, Intel v. Advanced Micro Devices 542 U.S. 241 (2004), which outlines the scope and limitations of 28 U.S.C. §1782. While the District Court conceded that the court’s powers under 28 U.S.C. §1782 have been expanded over the past several years, the Intel decision did not specifically reference private arbitrations as one of those areas in which the statute granted authority. The District Court, therefore, declined to follow several subsequent decisions which interpreted the Intel decision to apply to private arbitrations.
The court distinguished between "state-sponsored arbitral bodies" (i.e. UNCITRAL) and "purely private arbitrations." In so doing, it adopted the minority position on the issue.
For a copy of the decision click here
by Daniel W. Gerber and Jeffrey L. Kingsley