United States District Court, D. Arizona
DOMINIC W. LANZA UNITED STATES DISTRICT JUDGE
before the Court is Petitioner Republic of Kazakhstan's
ex parte application under 28 U.S.C. Â§ 1782 for
leave to serve a subpoena on Respondent William Scott Lawler.
(Doc. 7.) For the following reasons, the Court will grant the
arbitration proceedings giving rise to this application
concern a dispute between Big Sky Energy Corporation
(“Big Sky”), a Nevada corporation, and the
Republic of Kazakhstan (“Kazakhstan”). (Doc. 7 at
1-2.) At issue is the invalidation by a Kazakhstani court of
a transfer of oil rights from KoZhaN LLP, a Kazakh company,
to a Canadian special purpose vehicle called Big Sky Energy
Kazakhstan LLP, which is wholly owned by Big Sky.
(Id. at 5.) In 2017, Big Sky commenced arbitration
proceedings against Kazakhstan before the International
Centre for Settlement of Investment Disputes
(“Centre”), alleging that the Kazakhstani
courts' invalidation of the transfer violated a bilateral
investment treaty between the United States and Kazakhstan.
(Id. at 6.)
seeks to raise a jurisdictional defense in the arbitration.
(Id. at 6-7.) Specifically, the bilateral investment
treaty at issue allows either country to deny treaty
protection “to any company that is controlled by
non-U.S. nationals if that company does not conduct
substantial business activities in the United States.”
(Id. at 7.) Through the requested subpoena to
William Lawler, Big Sky's sole officer and director,
Kazakhstan seeks to obtain evidence addressing, inter
alia, the identity of the parties that control Big Sky.
PARTE NATURE OF PETITION
has requested relief on an ex parte basis.
“[A]n ex parte application is an acceptable method for
seeking discovery pursuant to 28 U.S.C. § 1782.”
In re Application of Ontario Principals'
Council, 2014 WL 3845082, *2 (D. Ariz. 2014).
“[S]uch ex parte applications are typically justified
by the fact that the parties will be given adequate notice of
any discovery taken pursuant to the request and will then
have the opportunity to move to quash the discovery or to
participate in it.” In re Letter of Request from
Supreme Court of Hong Kong, 138 F.R.D. 27, 32 n.6
(S.D.N.Y. 1991). See also In re Letters Rogatory from
Tokyo Dist., Tokyo, Japan, 539 F.2d 1216, 1219 (9th Cir.
1976) (“Letters Rogatory are customarily received and
appropriate action taken with respect thereto ex
parte. The witnesses can and have raised objections and
exercised their due process rights by motions to quash the
subpoenas.”). As such, the Court will consider the
application on an ex parte basis.
decision whether to grant a § 1782 application involves
a two-step inquiry. First, the application must meet the
statutory requirements of § 1782. See, e.g., Schmitz
v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79,
83-84 (2d Cir. 2004). Second, even if the statutory
requirements are satisfied, several discretionary factors
bear on whether relief ought to be granted. Intel Corp.
v. Advanced Micro Devices, Inc., 542 U.S. 241, 264
(2004). “[A] district court is not required to grant a
§ 1782(a) discovery application simply because it has
the authority to do so.” Id.
district court has the authority to issue a discovery order
under § 1782 when three criteria are satisfied. The
application must show that (1) the person from whom discovery
is sought “resides or is found” in the same
district as the district court, (2) the discovery material is
to be “use[d] in a foreign or international tribunal,
” and (3) the application is brought by “a
foreign or international tribunal or . . . any interested
person.” 28 U.S.C. § 1782(a).
all three criteria are satisfied. First, Kazakhstan has
alleged that Lawler resides in Arizona and has a business
address in Arizona. (Doc. 7 at 3.)
the purpose of the application is to acquire information for
use in the Centre's arbitration proceeding. (Doc. 7 at
13-14.) District courts “have regularly found that
arbitrations conducted pursuant to Bilateral Investment
Treaties . . . qualify as international tribunals under the
statute. . . . [A]rbitrations pursuant to Bilateral
Investment Treaties are not merely private arrangements; they
are sanctioned by their governments [and] governments
participate in them . . . .” Islamic Republic of
Pakistan v. Arnold & Porter Kaye Scholer LLP, 2019
WL 1559433, *7 (D.D.C. 2019).
Kazakhstan is a party to the arbitration at issue. (Doc. 7 at
3.) As such, it qualifies as an “interested
person”: “No doubt litigants are included among,
and may be the most common example of, the ‘interested