The Application of the Fund v. AlixPartners

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20-2653-cv The Application of the Fund v. AlixPartners In the United States Court of Appeals for the Second Circuit AUGUST TERM 2020 No. 20-2653-cv THE APPLICATION OF THE FUND FOR PROTECTION OF INVESTOR RIGHTS IN FOREIGN STATES PURSUANT TO 28 U.S.C. § 1782 FOR AN ORDER GRANTING LEAVE TO OBTAIN DISCOVERY FOR USE IN A FOREIGN PROCEEDING, Plaintiff-Appellee, v. ALIXPARTNERS, LLP, SIMON FREAKLEY, Third-Party Defendants-Appellants. On Appeal from the United States District Court for the Southern District of New York ARGUED: APRIL 15, 2021 DECIDED: JULY 15, 2021 Before: CABRANES, POOLER, and BIANCO, Circuit Judges. Third-Party Defendants-Appellants AlixPartners, LLP and Simon Freakley (together, “AlixPartners”) appeal from the July 8, 2020 Order of the United States District Court for the Southern District of New York (Analisa Torres, Judge) granting an application for discovery assistance pursuant to 28 U.S.C. § 1782 and the August 25, 2020 Order denying reconsideration of the same. Under § 1782(a), a district court may grant an application for discovery assistance submitted by an “interested person” for use “in a proceeding in a foreign or international tribunal.” Plaintiff-Appellee The Fund for Protection of Investor Rights in Foreign States (the “Fund”), a Russian corporation, sought assistance from the District Court to order discovery from AlixPartners for use in an arbitration proceeding brought by the Fund against Lithuania before an arbitral panel established pursuant to a bilateral investment treaty between Lithuania and Russia. 2 This case presents three main issues on appeal: (1) whether an arbitration between a foreign State and an investor, which takes place before an arbitral panel established pursuant to a bilateral investment treaty to which the foreign State is a party, constitutes a “proceeding in a foreign or international tribunal” under 28 U.S.C. § 1782; (2) whether the Fund is an “interested person” who may seek discovery assistance for such an arbitration under § 1782; and (3) whether the District Court erred in finding that the so-called Intel factors weigh in favor of granting the Fund’s discovery application under § 1782. As to the first question presented, because the arbitration is between an investor and a foreign State party to a bilateral investment treaty, taking place before an arbitral panel established by that treaty, we hold that this arbitration is a “proceeding in a foreign or international tribunal.” Second, because the Fund is a party to the arbitration for which it seeks discovery assistance, it is an “interested person” under § 1782. Third, we find no abuse of discretion in the District Court’s 3 determination that the Intel factors weigh in favor of granting the Fund’s discovery application. Accordingly, we AFFIRM the July 8, 2020 Order and the August 25, 2020 Order of the District Court. JOSEPH T. BAIO, Willkie Farr & Gallagher LLP, New York, NY, for Third-Party Defendants-Appellants. ALEXANDER A. YANOS (Carlos Ramos- Mrosovsky, Rajat Rana, Robert Poole, on the brief), Alston & Bird LLP, New York, NY, for Plaintiff-Appellee. JOSÉ A. CABRANES, Circuit Judge: We consider here three questions concerning discovery in U.S. …

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