Second Circuit Limits U.S.-Based Discovery For ICSID Arbitrations

On July 19, 2024, the U.S. Court of Appeals for the Second Circuit in New York ruled that an arbitral tribunal formed under the auspices of the International Centre for the Settlement of Investment Disputes (ICSID) is not a “foreign or international tribunal” under 28 U.S.C. § 1782, a federal law that allows discovery from persons residing or found in the United States in aid of foreign proceedings.¹ This decision limits access to U.S. discovery tools to obtain information for use in ICSID arbitrations.

An Italian investment company, Webuild S.P.A., initiated an ICSID arbitration against the Republic of Panama under the Panama-Italy Bilateral Investment Treaty arising out of a contract for the expansion of the Panama Canal.