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.
2

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.
3

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 
4

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 RamosMrosovsky, 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. 

courts to assist in an arbitration between an investor and a foreign 

State that takes place before an arbitral panel established by a bilateral 

investment treaty to which that foreign State is a party. 
5

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, along with the District Court’s August 25, 2020 Order 

denying reconsideration of the same.1 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.” 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 Freakley 

and AlixPartners, LLP, a limited liability partnership with its principal 

place of business in New York, for use in an arbitration proceeding 

1 In re Fund for Protection of Inv. Rights in Foreign States, No. 19 Misc. 401 (AT), 

2020 WL 3833457 (S.D.N.Y. July 8, 2020). AlixPartners also appeals from the August 

25, 2020 order denying reconsideration. In re Fund for Protection of Inv. Rights in 

Foreign States, No. 19 Misc. 401 (AT), 2020 WL 5026586 (S.D.N.Y. Aug. 25, 2020).
6

brought by the Fund against the Republic of Lithuania (“Lithuania”)2; 

that proceeding was before an arbitral panel established by a bilateral 

investment treaty between Lithuania and the Russian Federation 

(“Russia”).

This case presents three primary 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 that foreign State is a party, constitutes a

“proceeding in a foreign or international tribunal” under § 1782; (2) 

whether the Fund qualifies as an “interested person” who may seek 

discovery assistance under § 1782; and (3) whether the District Court 

erred in finding that the so-called Intel factors3 weigh in favor of 

granting the Fund’s discovery application. 

2 Ex Parte Application of The Fund at 1, In re the Application of the Fund for 

Protection of Investor Rights in Foreign States, No. 1:19-mc-00401-AT (S.D.N.Y. Aug. 

29, 2019), ECF No. 1.

3 See Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) (Intel).
7

As to the first question presented, because the arbitration is 

between an investor and foreign State party to a bilateral investment 

treaty, and because the arbitration takes place before an arbitral panel 

established by that same 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 is seeking discovery 

assistance, it qualifies as an “interested person” under § 1782. Third, 

we find no abuse of discretion in the District Court’s determination 

that the relevant factors announced by the Supreme Court in Intel 

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.

BACKGROUND

In 2011, Lithuania’s regulatory authorities conducted an 

investigation of a private bank located in Lithuania, AB bankas 

SNORAS (“Snoras”). After finding that Snoras was unable to meet its 
8

obligations, the Bank of Lithuania, the central bank, nationalized 

Snoras and appointed Simon Freakley as its temporary administrator. 

As administrator, Freakley reported to the Bank of Lithuania that 

Snoras’s liabilities exceeded its assets and shortly thereafter, the 

authorities commenced bankruptcy proceedings, which resulted in a 

Lithuanian court declaring Snoras to be bankrupt. 

The Fund, a Russian corporation, is the assignee of Vladimir 

Antonov, a Russian national who sought to recover compensation for 

Lithuania’s expropriation of his controlling share in Snoras by 

commencing an arbitration proceeding against Lithuania in April 

2019. The Fund commenced this particular arbitration pursuant to a 

bilateral investment treaty to which Lithuania and Russia are parties, 

titled the Agreement Between the Government of the Russian 

Federation and the Government of the Republic of Lithuania on the 

Promotion and Reciprocal Protection of the Investments (the 

“Treaty”). This Treaty is, according to its terms, an agreement entered 
9

for the purpose of establishing favorable conditions made by investors 

of one foreign State in the territory of the other, “recognising that the 

promotion and reciprocal protection of investments, based on the 

present Agreement, will be conducive to the development of mutually 

beneficial trade and economic, scientific and technical co-operation.”4

There are several provisions in the Treaty that are relevant to 

this appeal. Article 6 of the Treaty provides that investments of one 

foreign State’s nationals made in the territory of the other State “shall 

not be subject to expropriation, nationalisation or other measures 

equivalent to expropriation or nationalisation.”5

Article 10 addresses the procedures by which disputes between 

one foreign State and an investor of the other State are resolved. In the 

4 Joint App’x 70.

5 Id. at 72.
10

event that a dispute cannot be settled within six months, either party 

may elect to submit the dispute to one of four venues:

a) competent court or court of arbitration of the 

Contracting Party in which territory the 

investments are made;

b) the Arbitration Institute of the Stockholm 

Chamber of Commerce;

c) the Court of Arbitration of the International 

Chamber of Commerce; [or]

d) an ad hoc arbitration in accordance with 

Arbitration Rules of the United Nations 

Commission on International Trade Law 

(UNCITRAL).6

The Treaty also provides that “[t]he arbitral decision shall be final and 

binding on both parties [to] the dispute.”7

When the Fund initiated an arbitration pursuant to the Treaty, 

it elected to resolve the dispute through “an ad hoc arbitration in 

6 Id. at 74.

7 Id.
11

accordance with Arbitration Rules of [UNCITRAL.]”8 In August 2019, 

the Fund filed an application pursuant to 28 U.S.C. § 17829 in the 

United States District Court for the Southern District of New York for 

8 Id. at 29.

9 The relevant language of § 1782 is as follows: 

The district court of the district in which a person resides 

or is found may order him to give his testimony or 

statement or to produce a document or other thing for use 

in a proceeding in a foreign or international tribunal . . . . 

The order may be made pursuant to a letter rogatory 

issued, or request made . . . upon the application of any 

interested person and may direct that the testimony or 

statement be given, or the document or other thing be 

produced, before a person appointed by the court. . . . The 

order may prescribe the practice and procedure, which 

may be in whole or part the practice and procedure of the 

foreign country or the international tribunal, for taking the 

testimony or statement or producing the document or 

other thing. . . . A person may not be compelled to give his 

testimony or statement or to produce a document or other 

thing in violation of any legally applicable privilege.

28 U.S.C. § 1782(a).
12

an order granting the Fund leave to obtain discovery for use in its 

arbitration with Lithuania.10

In its application the Fund sought discovery from Freakley and 

AlixPartners, LLP11 related to the expropriation of Snoras based on 

Freakley’s role as the bank’s temporary administrator, including

information about: the circumstances of Freakley’s appointment as 

Snoras’s temporary administrator; any instructions Freakley received 

from the Lithuanian government; the nature, scope, and findings of 

Freakley’s investigation at Snoras; the “reception” by Lithuanian 

officials of those findings; any reports prepared by Freakley for the 

Bank of Lithuania; and a deposition of Freakley and a representative 

of AlixPartners, LLP about these events. AlixPartners filed a response

10 The Fund filed this § 1782 application in the Southern District of New York

because it is the “district court of the district in which [AlixPartners and Freakley] 

reside[ ] or [are] found.” 28 U.S.C. § 1782(a).

11 Freakley is currently the Chief Executive Officer of AlixPartners, LLP. At 

the time the Bank of Lithuania appointed Freakley as temporary administrator of 

Snoras, Freakley worked for a different entity whose assets were later acquired by 

AlixPartners, LLP. Appellants Br. 6.
13

in the District Court in opposition to the Fund’s § 1782 application in 

October 2019.

In November 2019, Lithuania submitted a letter to the arbitral 

panel constituted pursuant to the Treaty to arbitrate the dispute 

between the Fund and Lithuania, in which Lithuania asked the panel 

“to order the [Fund] to withdraw the [§] 1782 Application” and which 

the Fund opposed.12 The arbitral panel issued an order the next month,

analyzing the parties’ positions and ultimately rejecting Lithuania’s 

request to order the Fund to withdraw its § 1782 application. In its 

decision, the panel observed that Lithuania did not show that the § 

1782 application “would in itself be prejudicial to its rights in this 

arbitration” and noted that Lithuania would “be able to contest any 

evidence that might be obtained pursuant to the [Fund’s §] 1782

Application, if granted,” including objections as to admissibility of 

12 Joint App’x 216.
14

materials under Lithuanian law.13 The arbitral panel declined to decide 

such possible admissibility issues in its order, finding that “[i]t would 

be premature to do so.”14

Back in the United States, on July 8, 2020 the District Court 

granted the Fund’s § 1782 application and authorized the Fund to issue 

subpoenas to AlixPartners for the requested documents.15

That same day, we held in Guo that § 1782 discovery assistance 

does not extend to private commercial arbitrations,16 a decision that

reaffirmed our prior holding in NBC.17 In Guo, we also offered further 

guidance on the factors to be considered by a court in deciding

13 Id. at 219–20.

14 Id. at 220.

15 In re Fund for Protection of Inv. Rights in Foreign States, 2020 WL 3833457.

16 See In re Guo (Guo), 965 F.3d 96 (2d Cir. 2020).

17 Id. at 104-05; see Nat’l Broad. Co. v. Bear Stearns & Co. (NBC), 165 F.3d 184 

(2d Cir. 1999).
15

whether an arbitration is taking place in a “foreign or international 

tribunal” under § 1782.18

AlixPartners timely moved for reconsideration of the District 

Court’s July 8 Order, asserting that the decision could not stand in light 

of Guo’s holding that an arbitral tribunal’s status turns not on its 

origins in governmental action, but instead on whether the tribunal

possesses the functional attributes most commonly associated with 

private arbitration. 

On August 25, 2020, the District Court denied the motion for 

reconsideration, interpreting Guo as “suggest[ing] that arbitrations 

conducted pursuant to a bilateral investment treaty like the [Treaty 

here] do qualify as ‘[proceedings in a] foreign or international 

tribunal’ under § 1782.”19 The District Court also explained that it had, 

18 See Guo, 965 F.3d at 107.

19 In re Fund for Protection of Inv. Rights in Foreign States, 2020 WL 5026586, at 

*2 (quoting § 1782).
16

consistent with Guo, reached its prior decision by looking to several 

functional attributes possessed by the arbitral panel that were not

commonly associated with private arbitration, including: 

the role of bilateral investment arbitration as a tool 

of international relations, the fact that the Tribunal 

derives its jurisdiction from the [Treaty], and the 

fact that the Arbitration is a means by which [the 

Fund is] bringing claims against the Republic of 

Lithuania in its capacity as a state.20

Thus, according to the District Court, its July 8 Order was not

disturbed by this Court’s decision in Guo. This timely appeal followed.

DISCUSSION

Under 28 U.S.C. § 1782(a), a district court may compel the 

production of materials “for use in a proceeding in a foreign or 

international tribunal” upon “the application of any interested 

20 Id.
17

person.” There are several statutory requirements that must be 

satisfied for § 1782 discovery assistance to be granted: 

(1) the person from whom discovery is sought 

resides (or is found) in the district of the district 

court to which the application is made, (2) the 

discovery is for use in a foreign proceeding before 

a foreign [or international] tribunal, and (3) the 

application is made by a foreign or international 

tribunal or any interested person.21

The issues on appeal are: (1) whether an arbitration between an 

investor and a foreign State, which takes place before an arbitral panel 

established by a bilateral investment treaty to which that foreign State 

is a party, constitutes a “proceeding in a foreign or international 

tribunal” under § 1782; (2) whether the Fund qualifies as an 

“interested person” who may seek discovery assistance for such an

arbitration under § 1782; and (3) whether the District Court “abused 

21 Brandi–Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76, 80 (2d Cir. 

2012); see also Guo, 965 F.3d at 102 n.3 (“[T]he statute also imposes other 

requirements, including that the discovery not be ‘in violation of any legally 

applicable privilege.’” (quoting 28 U.S.C. § 1782(a))). AlixPartners does not contest 

that the first § 1782 requirement, that it can be “found” in the Southern District of 

New York, is satisfied.
18

its discretion”22 in granting discovery to the Fund after weighing the 

so-called Intel factors.

We review de novo the District Court’s conclusions that this 

arbitration is a proceeding before an arbitral panel that qualifies as a 

“foreign or international tribunal” and the Fund is an “interested 

person.”23 We review the District Court’s application of the so-called 

Intel factors and its decision to order discovery for abuse of 

discretion.24

22 See In re The City of New York, 607 F.3d 923, 943 n.21 (2d Cir. 2010) 

(explaining that “[t]he word ‘abuse’ in the ‘abuse of discretion’ standard is an 

unfortunate—and inaccurate—term of art. When a district court abuses its 

discretion, it involves nothing as heinous as abuse. Indeed, a so-called abuse of 

discretion often involves something quite common and unavoidable in a system of 

adjudication: a ‘view of the law’ that is simply ‘erroneous.’” (quoting Sims v. Blot, 

534 F.3d 117, 132 (2d Cir. 2008)).

23 Guo, 965 F.3d at 102.

24 See Lancaster Factoring Co. v. Mangone, 90 F.3d 38, 42 (2d Cir. 1996).
19

I.

Pursuant to the Treaty between Lithuania and Russia, the Fund 

initiated an arbitration against Lithuania to challenge the 

expropriation of certain shares of the bank Snoras. In opposition to the 

Fund’s application for discovery assistance, AlixPartners asserts that 

the arbitration between the Fund and Lithuania is a private 

commercial arbitration, rather than a “proceeding in a foreign or 

international tribunal” within the meaning of § 1782. 

The seminal Supreme Court case in this area, Intel, approached

the “foreign or international tribunal” statutory requirement of § 1782 

cautiously and flexibly. The Court held that discovery assistance 

would be used “in a proceeding in a foreign or international tribunal” 

where a foreign government entity—there, the Directorate GeneralCompetition of the Commission of the European Communities, whose 

determinations were appealable to the European Court of Justice—

exercised “quasi-judicial” powers and acted as a “first-instance 
20

decisionmaker.”25 The Intel Court also noted that a proceeding abroad 

may be eligible for § 1782 discovery assistance even when it has no 

analogous forum in the United States. This was so because, “[i]n light 

of the variety of foreign proceedings resistant to ready classification in 

domestic terms, Congress left unbounded by categorical rules the 

determination whether a matter is proceeding ‘in a foreign or 

international tribunal.’”26 Thus, the Intel Court resisted setting firm 

limits on the arbitral bodies that could qualify for § 1782 discovery 

assistance as “foreign or international tribunal[s].” Instead, the Court 

offered the Intel factors, discussed below, as “guides for the exercise of 

district-court discretion.”27

25 Intel, 542 U.S. at 252, 257–58. The term “court of first instance” is often 

referred to as a “trial court,” defined as “[a] court of original jurisdiction where 

evidence is first received and considered”; “[a]lso termed court of first instance[.]” 

Trial court, BLACK’S LAW DICTIONARY (11th ed. 2019).

26 Intel, 542 U.S. at 263 n.15 (quoting 28 U.S.C. § 1782(a)).

27 Id.
21

Our own precedents have likewise made it clear that this 

statutory requirement of § 1782 is broad, but not boundless. In NBC, 

we held that “when Congress in 1964 enacted the modern version of 

§ 1782, it intended to cover governmental or intergovernmental 

arbitral tribunals and conventional courts and other state-sponsored 

adjudicatory bodies.”28 That said, we also held “international arbitral 

panels created exclusively by private parties” or “arbitral bod[ies] 

established by private parties” were not “foreign or international 

tribunals” for the purposes of § 1782.29

In our recent decision in Guo, we re-affirmed NBC’s holding and 

elaborated on the framework by which a court should determine 

whether a “foreign or international tribunal” exists for purposes of 

§ 1782. In that case, we determined that, although the administrative 

entity at issue—the China International Economic and Trade 

28 NBC, 165 F.3d at 190.

29 Id. at 190–91.
22

Arbitration Commission (“CIETAC”)—“was originally created 

through state action,” the entity had “subsequently evolved such that 

it arguably no longer qualifie[d] as a ‘governmental or 

intergovernmental arbitral tribunal[,] . . . conventional court[, or] . . . 

other state-sponsored adjudicatory body.”30 Accordingly, we specified

factors to be considered by courts when conducting the “foreign or 

international tribunal” inquiry, emphasizing that this inquiry “does 

not turn on the governmental or nongovernmental origins of the 

administrative entity in question.”31 Instead, we adopted a “functional 

approach” that “consider[s] a range of factors” to answer a key 

question: “whether the body in question possesses the functional 

attributes most commonly associated with private arbitration.”32

30 Guo, 965 F.3d at 107 (quoting NBC, 165 F.3d at 190).

31 Id. (emphasis in original).

32 Id. As we discuss in more detail below, in Guo we noted certain

distinctions between the body at issue in Guo—CIETAC—and an arbitral panel of 

the kind we consider in this case. Indeed, we noted that “arbitration under bilateral 

investment treaties is typically between a private party and a state” whereas “the 
23

In this case, the parties dispute whether this arbitral panel is a 

private commercial arbitration. Because Guo clarified that the “foreign 

or international tribunal” inquiry does not turn on the governmental 

origins of the entity in question, we analyze this question under the 

“functional approach” and factors we laid out in Guo,33 including:

(1) the “degree of state affiliation and functional independence 

possessed by the entity”; 

dispute [there was] between two private parties.” Id. at 108 n.7. We also noted that

“[w]hile an arbitral body under a bilateral investment treaty may be a ‘foreign or 

international tribunal,’ the arbitration [before CIETAC] derive[d] adjudicatory 

authority solely from the parties’ agreement, rather than the intervention or license 

of any government to adjudicate cases arising from certain varieties of foreign 

investment.” Id.

33 The Fund argues that we should not consider the Guo factors in this case 

because Guo concerned a tribunal “founded on a private contractual agreement,” 

as opposed to an arbitration involving a foreign State before an arbitral panel 

established pursuant to a bilateral investment treaty to which that State is a party. 

Appellee Br. 20. We disagree. In Guo, we stated that “[a] closer inquiry is required 

where . . . the arbitral body was originally created through state action, yet 

subsequently evolved such that it arguably no longer qualifies as a [foreign or 

international tribunal].” Guo, 965 F.3d at 107. We likewise think that a closer inquiry 

is required where the arbitral body arguably possesses attributes of both private 

and governmental arbitration. Our holding in Guo that the inquiry “does not turn 

on the governmental or nongovernmental origins of the administrative entity in 

question,” id., reinforces our decision to undertake that inquiry here.
24

(2) the “degree to which a state possesses the authority to 

intervene to alter the outcome of an arbitration after the 

panel has rendered a decision”; 

(3) the “nature of the jurisdiction possessed by the panel”; 

and

(4) the “ability of the parties to select their own 

arbitrators.”34

We consider each of these factors in turn.

1. State Affiliation and Functional Independence. 

In looking at the “extent to which the arbitral body is internally 

directed and governed by a foreign state or intergovernmental 

body,”35 we recall that we found that the arbitral body in Guo,

34 Guo, 965 F.3d at 107–08.

35 Id. at 107. We consider also any additional “functional attributes” that may 

suggest that the arbitral tribunal is a “private arbitral body rather than a ‘foreign or 

international tribunal.’” Id. at 107-08.
25

CIETAC, “function[ed] essentially independently of the Chinese 

government in the ‘administration of its arbitration cases’”; the 

administrative entity “maintain[ed] confidentiality from all nonparticipants during and after arbitration, limiting opportunities for ex 

parte intervention by state officials”; and that CIETAC offered a pool 

of arbitrators with no affiliation with the Chinese government.36 We

thus held that CIETAC had a “high degree of independence and 

autonomy, and, conversely, a low degree of state affiliation.”37

Here, the arbitral panel also functions independently from the 

governments of Lithuania and Russia. The members of the arbitral 

panel (two arbitration lawyers and a law professor) have no official

affiliation with Lithuania, Russia, or any other governmental or 

intergovernmental entity and the panel receives zero government 

funding. Further, as was the case with proceedings before CIETAC, 

36 Id. at 107.

37 Id.
26

the proceedings here maintain confidentiality from non-participants; 

the Treaty provides that “[t]he award may be made public only with 

the consent of both parties.”38

Nevertheless, we agree with the Fund that this functional 

independence of the arbitral panel must be viewed within the context 

of the Treaty. It is true that this arbitral panel is not internally “directed 

and governed by a foreign state.”39 But the panel is convened and 

proceeds in an arbitration format expressly contemplated by the 

Treaty entered into by Lithuania and Russia in order to create a 

specific proceeding to resolve investment-related disputes between 

one foreign State and investors of the other State. And the rules that 

will govern the dispute were developed by UNCITRAL, an 

international body.40 We conclude that this arbitral panel, convened 

38 Joint App’x 126.

39 Guo, 965 F.3d at 107.

40 UNCITRAL, established in 1966, “is a subsidiary body of the General 

Assembly of the United Nations with the general mandate to further the 
27

pursuant to the terms of the Treaty, thus retains affiliation with the 

foreign States, despite its functional independence in other ways. 

Accordingly, this factor weighs in favor of finding that this arbitral 

panel qualifies as a “foreign or international tribunal” within the 

meaning of § 1782.

2. State Authority to Intervene or Alter Outcome. 

State authority to influence or control an arbitration pursued 

under this Treaty is limited, if not non-existent. Indeed, the Treaty 

curtails the ability of Lithuania or Russia to intervene in an arbitration

under it or alter the outcome after the panel renders a decision. 

progressive harmonization and unification of the law of international trade.” 

UNCITRAL texts such as its model arbitration rules are drafted by “the Member 

States of the Commission and other States (referred to as ‘observer States’), as well 

as interested international inter-governmental organizations . . . and nongovernmental organizations . . . .” UNITED NATIONS COMM’N ON INTER’L TRADE 

LAW, Frequently Asked Questions – Mandate and History (last visited July 13, 2021), 

https://uncitral.un.org/en/about/faq/mandate_composition/history.
28

Additionally, the Fund has waived its right to have a Lithuanian court 

review the result from this arbitration.

We recognize that an arbitration against a foreign State, whether

conducted pursuant to a bilateral investment treaty like this Treaty or 

otherwise, necessarily requires that the foreign State consent to subject 

itself to binding dispute resolution.41 That said, if a foreign State 

against whom the arbitration is proceeding was allowed to control the 

arbitration’s outcome, the purpose of a bilateral investment treaty like 

the Treaty here—which has the aim of encouraging investment 

between Russia and Lithuania—would be frustrated. In the 

circumstances presented here, we conclude that this factor—whether 

there is foreign State authority to intervene or alter the arbitration 

41 Cf. RESTATEMENT (FOURTH) OF FOREIGN RELATIONS LAW OF THE UNITED 

STATES § 458 note 6 (AM. LAW INST. 2018) (“In U.S. practice, bilateral investment 

treaties . . . may be enforced in courts in the United States and thus operate to 

remove a foreign state’s sovereign immunity in such proceedings.” (citing Schneider 

v. Kingdom of Thailand, 688 F.3d 68 (2d Cir. 2012) (holding that bilateral investment 

treaties provided conditions for the formation of written agreements to arbitrate 

under the New York Convention); Republic of Ecuador v. Chevron Corp., 638 F.3d 384 

(2d Cir. 2011) (same))).
29

outcome—is neutral as to whether this arbitral panel qualifies as a 

“foreign or international tribunal” within the meaning of § 1782.

3. Nature of Jurisdiction Possessed by the Panel. 

Critically, the arbitral panel in this case derives its adjudicatory 

authority from the Treaty, a bilateral investment treaty between 

foreign States entered into by those States to adjudicate disputes

arising from certain varieties of foreign investment, rather than an

agreement between purely private parties or any other species of

private contract. 

In Guo, we observed that an “arbitral body under a bilateral 

investment treaty may be a ‘foreign or international tribunal’” when it

derives its adjudicatory authority from the “intervention or license of 

any government to adjudicate cases arising from certain varieties of 
30

foreign investment.”42 The arbitral panel here is authorized to resolve 

the dispute between the Fund and Lithuania under the terms of the 

Treaty—a bilateral investment treaty—and thus closely resembles the 

sort of arbitral body that we anticipated in Guo would qualify as a 

“foreign or international tribunal.” Accordingly, this factor weighs 

heavily in favor of concluding that this arbitral panel qualifies as a 

“foreign or international tribunal” within the meaning of § 1782.

4. Arbitrator Selection Process. 

The process of selecting the members of the arbitral panel was 

conducted here in accordance with the Treaty. Each party selected one 

arbitrator and those two arbitrators were required to select a third 

arbitrator, who would preside. The three arbitrators selected are all

private parties—two arbitration lawyers and one law professor—

42 Guo, 965 F.3d at 108 n.7; see also NBC, 165 F.3d at 190 (“[A]n international 

tribunal owes both its existence and its powers to an international agreement.” 

(quoting Hans Smit, Assistance Rendered by the United States in Proceedings Before 

International Tribunals, 62 COLUM. L. REV. 1264, 1267 (1962))).
31

which is suggestive of a “private” arbitration. But, as we noted in Guo, 

“this factor is not determinative, as agreements between countries to 

arbitrate disputes between their citizens may involve selection of the 

arbitrators by the parties”—including, of course, a foreign State 

party—“and such a tribunal may be a ‘foreign or international 

tribunal’ [under § 1782] notwithstanding this fact.”43 Accordingly, 

although this factor weighs against concluding that the arbitral panel 

is a “foreign or international tribunal,” it is not determinative.

5. Additional Attributes Suggestive of a “Foreign or International 

Tribunal"

Consistent with Guo, we consider also any additional 

“functional attributes” that may suggest that the arbitral panel is a 

43 Guo, 965 F.3d at 108.
32

“foreign or international tribunal” rather than a “private arbitral 

body.”44 There are at least two such attributes here.

First, Lithuania, in its capacity as a foreign State, is one of the 

parties to this arbitration. In Guo we observed that the CIETAC 

arbitration was “between two private parties,” thus differentiating it 

from the sort of arbitration presented here—one between a private 

party and a foreign State.45

Second, the importance of bilateral investment treaties as tools 

of international relations supports a conclusion that this arbitral panel, 

convened pursuant to the Treaty, constitutes a “foreign or 

international tribunal.” Russia and Lithuania entered into this Treaty 

for the purpose of establishing favorable conditions for investments 

made by investors of one foreign State in the territory of the other, in 

44 Id. at 107–08.

45 Id. at 108 n.7.
33

recognition “that the promotion and reciprocal protection of 

investments, based on the present Agreement, will be conducive to the 

development of mutually beneficial trade and economic, scientific and 

technical co-operation.”46 By its terms, the Treaty serves numerous 

foreign policy goals. That this arbitral panel was assembled pursuant 

to this Treaty—as part of this effort to facilitate mutually beneficial 

relations between Russia and Lithuania—signals that this arbitration 

differs from a private commercial arbitration.47

* * *

In sum, we hold that this arbitration between Lithuania and the 

Fund, taking place before an arbitral panel convened pursuant to the 

46 Joint App’x 70.

47 Cf. BG Grp., PLC v. Republic of Argentina, 572 U.S. 25, 32 (2014) (explaining 

that the Court granted a petition for certiorari concerning the “local litigation 

requirement” of a bilateral investment treaty because of “the importance of the 

matter for international commercial arbitration” and citing K. Vandevelde, Bilateral 

Investment Treaties: History, Policy & Interpretation 430–32 (2010) to explain “that 

dispute-resolution mechanisms allowing for arbitration are a ‘critical element’ of 

modern day bilateral investment treaties”).
34

Treaty, a bilateral investment treaty to which Lithuania is a party, 

qualifies as a “foreign or international tribunal” under § 1782.

This holding is consistent with legislative intent. Before 1964, an 

older version of § 1782 provided discovery assistance “only to a 

tribunal established by a treaty to which the United States was a party 

and then only in proceedings involving a claim in which the United 

States or one of its nationals was interested.”48 In 1964, Congress 

amended § 1782 to “broaden” its reach beyond its original scope to 

allow discovery assistance to “intergovernmental tribunals not

involving the United States.”49 Here, the arbitral panel closely 

resembles the tribunals included in § 1782’s pre-amendment scope, 

once modified to include intergovernmental tribunals; it is a panel 

48 NBC, 165 F.3d at 190 (citing S. REP. No. 88-1580 (1964), reprinted in 1964 

U.S.C.C.A.N. 3782, 3784 (“Senate Report”)).

49 Id. (emphasis added). Its scope was broadened because, “[c]learly, the 

interest of the United States in peaceful settlement of international disputes is not 

limited to controversies to which it is a formal party.” Id. (quoting Senate Report at 

3785).
35

“established by a treaty to which [Lithuania and Russia are parties] . . . 

in [a] proceeding[ ] involving a claim in which [Russia] or one of its 

nationals [is] interested.”50 Accordingly, finding that the instant

arbitral panel is eligible for § 1782 discovery assistance is consistent 

with § 1782’s modern expansion to include intergovernmental

tribunals.

Thus, as the arbitration is a “proceeding in a foreign or 

international tribunal,” the District Court did not err in concluding 

that the Fund may seek § 1782 discovery assistance. 

II.

The second statutory requirement of § 1782 at issue requires that 

the party seeking discovery assistance be an “interested person.” The 

Fund asserts that it qualifies as an “interested person” under § 1782 as 

a litigant because the Fund initiated the arbitration as the assignee of 

50 See Senate Report at 3784.
36

a Snoras bank shareholder. We agree. Under Intel, “no doubt litigants 

are included among, and may be the most common example of, the 

‘interested person[s]’ who may invoke § 1782.”51

AlixPartners contests the Fund’s status as a “litigant” because 

the Fund has thus far failed to affirmatively submit proof, both in the 

arbitration and before this Court, that it is the assignee.52 But 

AlixPartners’s argument overcomplicates a straightforward inquiry. 

The Fund is plainly an “interested person” because it is a party to the 

very arbitration under way between the Fund and Lithuania that is the 

basis of this proceeding in a U.S. court.53 Accordingly, the District 

51 Intel, 542 U.S. at 256.

52 The arbitration has been bifurcated to first address this issue concerning 

the Fund’s standing before proceeding to the merits. 

53 See Certain Funds, Accts. and/or Inv. Vehicles v. KPMG, L.L.P., 798 F.3d 113, 

119 (2d Cir. 2015) (“[T]he [Intel] Court cited with approval the expansive definition 

[of ‘interested persons’] provided by [Professor] Hans Smit, [the] leading academic 

commentator on the statute [and one who famously] played a role in its drafting. 

Professor Smit maintained that the phrase ‘any interested person’ is ‘intended to 

include not only litigants before foreign and international tribunals, but also foreign 

and international officials as well as any other person . . . [who] merely possess[es] 
37

Court did not err in determining that the Fund sufficiently 

demonstrated that it is an “interested person” for the purpose of §

1782.

III.

Having held that the Fund qualifies as an “interested person” 

who properly applied for discovery assistance for use in a “proceeding 

in a foreign or international tribunal,” we proceed to review the 

District Court’s decision to grant the Fund’s § 1782 discovery 

application. Finding no abuse of discretion, we affirm.54

Under § 1782, a district court may, in its discretion, grant 

discovery assistance after considering both the “twin aims” of § 1782 

a reasonable interest in obtaining the assistance.’ Hans Smit, International Litigation 

Under the United States Code, 65 COLUM. L. REV. 1015, 1027 (1965).”).

54 Lancaster Factoring Co., 90 F.3d at 42 (“If the district court has properly 

interpreted the requirements of § 1782, its decision whether or not to order 

discovery is reviewed only for abuse of discretion. The court will be found to have 

abused its discretion only if there was no reasonable basis for its decision.”) 

(internal citation, brackets, and quotation marks omitted).
38

and the so-called Intel factors. The twin aims of § 1782 are to “provid[e] 

efficient means of assistance to participants in international litigation 

in our federal courts” and to “encourag[e] foreign countries by 

example to provide similar means of assistance to our courts.”55

AlixPartners argues that discovery assistance would run 

contrary to the second of those aims because there is no opportunity 

for reciprocity, inasmuch as the arbitral panel here is composed of nongovernmental arbitrators and it exists only temporarily. However, 

AlixPartners’s focus on the ad hoc character of the arbitral panel 

overlooks a more important point: that § 1782 discovery assistance

here would aid and enforce the efficacy of the Treaty itself. If the 

United States or its citizens were involved in such an arbitration, the 

Congressional policy of providing § 1782 discovery assistance in cases 

55 Schmitz v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79, 84 (2d Cir. 2004)

(citation omitted). § 1782 provides assistance to participants in international 

litigation by directing that “[t]he district court of the district in which a person 

resides or is found may order him to give [discovery] for use in a proceeding in a 

foreign or international tribunal.”
39

such as this would encourage other countries to provide similar means 

of assistance. Accordingly, we find no abuse of discretion in the 

District Court’s finding that granting § 1782 discovery assistance is 

consistent with the statute’s twin aims.

Likewise, we find no abuse of discretion in the District Court’s 

consideration of the Intel factors. The Intel factors to be considered are: 

(1) whether “the person from whom discovery is sought is a 

participant in the foreign proceeding”; (2) “the nature of the foreign 

tribunal, the character of the proceedings underway abroad, and the 

receptivity of the foreign government or the court or agency abroad to 

U.S. federal-court judicial assistance”; (3) “whether the § 1782(a) 

request conceals an attempt to circumvent foreign proof-gathering 

restrictions or other policies of a foreign country or the United States”; 

and (4) whether the request is “unduly intrusive or burdensome.”56

56 Intel, 542 U.S. at 264–65. 
40

As to the first Intel factor, the Fund asserts that it cannot obtain 

the same documents and testimony from Lithuania as from 

AlixPartners, LLP, Freakley’s current employer, because the Fund 

seeks responsive documents and communications beyond those 

accessible through Lithuania. The Fund also seeks to depose Freakley. 

We agree with the District Court that this factor weighs in favor of 

granting the discovery request. AlixPartners is not a participant in this 

arbitration and is otherwise outside the arbitral panel’s jurisdictional 

reach as a third party, and the evidence sought is not otherwise readily 

discoverable.

Second, the District Court properly found that consideration of 

“the receptivity of the foreign [tribunal] to U.S. federal-court judicial 

assistance” weighs in favor of granting the Fund’s discovery request. 

Absent authoritative proof that a foreign tribunal would reject the 

evidence, we have explained that a court should generally allow 
41

discovery if doing so would further § 1782’s goals.57 As emphasized 

by the Fund here, the arbitral panel declined to bar the Fund from 

seeking § 1782 discovery, which suggests that the panel would be 

receptive to such discovery if obtained.58 In the words of the District 

Court, “there is no reason to doubt that the [arbitral panel] would be 

receptive to U.S. federal-court judicial assistance.”59

Third, although AlixPartners argues that Lithuanian bank 

secrecy laws prohibit the disclosure of the documents sought by the 

Fund, the provision of § 1782 that “[a] person may not be compelled 

to give his testimony or statement or to produce a document or other 

thing in violation of any legally applicable privilege” is not as 

expansive as it may at first blush appear. 

57 See Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095, 1100 (2d Cir. 1995).

58 Joint App’x 219–20. 

59 In re Fund for Protection of Inv. Rights in Foreign States, 2020 WL 3833457, at 

*3.
42

Indeed, in Intel, the Supreme Court expressly held that § 1782 

does not have a “foreign-discoverability rule” that would 

“categorically bar a district court from ordering production of 

documents where the foreign tribunal or ‘interested person’ would not 

be able to obtain the documents if they were located in the foreign 

jurisdiction.”60 Likewise, in Brandi-Dohrn, we held that there is no 

statutory basis for a foreign-admissibility requirement.61 Accordingly, 

the foreign tribunal is “free to exclude the evidence or place conditions 

on its admission.”62 When the arbitral panel declined to bar the Fund 

from pursuing this § 1782 application in its December 2019 order, it 

stated that it would consider evidence in accord with this concept. The 

arbitral panel indicated that barring discovery at that stage would be 

“premature” despite Lithuania’s argument that it “should not be 

60 Intel, 542 U.S. at 259–60.

61 Brandi-Dohrn, 673 F.3d at 82.

62 Id.
43

receptive to allowing the [§ 1782] evidence.”63 Instead, the arbitral 

panel determined that 

[Lithuania] will be able to contest any evidence 

that might be obtained pursuant to the [Fund’s

§] 1782 Application . . . before the Tribunal. In 

particular, as argued by the [Fund], [Lithuania] 

will have the opportunity in due course to object 

to the admissibility of any such evidence at issue -

if the [Fund] introduces it into the record - on the 

basis of privilege allegedly accorded to this 

evidence by Lithuanian banking law.64

Likewise, the District Court observed that the privileges 

identified by AlixPartners “may regulate conduct in Lithuania and 

govern proceedings there, but [the Fund] seeks discovery for use in an 

international proceeding, with its own rules governing discoverability 

and admissibility of evidence”—and UNCITRAL arbitration rules do 

not appear to prohibit acquisition or use of the information sought by 

63 Joint App’x 220.

64Id. at 219.
44

the Fund.65 Therefore, the District Court stated, if AlixPartners believes 

that a privilege under Lithuanian law applies such that it is prevented 

from disclosing certain documents, AlixPartners may “seek a 

protective order or otherwise raise objections to the relevant portion 

of [the Fund’s] discovery request.”66

This approach—to address discoverability and admissibility 

issues as they arise rather than to impose a categorical bar in the first 

instance—is in accord with the legislative history of § 1782, which left

“the issuance of an appropriate order to the discretion of the court 

which, in proper cases, may refuse to issue an order or may impose 

conditions it deems desirable.”67 A holding to the contrary, as we have

65 In re Fund for Protection of Inv. Rights in Foreign States, 2020 WL 3833457, at 

*3.

66 Id. at *3.

67 Intel, 542 U.S. at 260–61 (quoting Senate Report at 3788); see also BrandiDohrn, 673 F.3d at 81 (“[A]lthough there is no requirement under § 1782 that the 

type of discovery sought be available in the relevant foreign jurisdiction, a court 

may look to the nature, attitude and procedures of that jurisdiction as ‘useful 

tool[s]’ to inform its discretion.”) (quoting Schmitz, 376 F.3d at 84).
45

observed, would “requir[e] a district court to apply the admissibility 

laws of the foreign jurisdiction[, which] would require interpretation 

and analysis of foreign law and such ‘[c]omparisons of that order can 

be fraught with danger.’”68 That danger is apparent in this case—

AlixPartners and the Fund disagree as to whether the material sought 

is privileged under Lithuanian law, and whether such privileges 

would apply in this treaty arbitration, governed as it is by UNCITRAL 

rules that make it likely that the arbitral panel would apply Lithuanian 

law to substantive matters. Accordingly, we find no error in the

District Court’s determination that it would consider the Lithuanian 

privilege issue as necessary and appropriate as discovery proceeds, 

such as by granting protective orders or hearing objections.69

Fourth, the District Court did not err in finding that the Fund’s 

request is not “unduly intrusive or burdensome” under Federal Rule 

68 Brandi-Dohrn, 673 F.3d at 82 (quoting Intel, 542 U.S. at 263).

69 See, e.g., Mees v. Buiter, 793 F.3d 291, 303 n.20 (2d Cir. 2015).
46

of Civil Procedure 26.70 We agree with the District Court that the 

Fund’s “requests go to the heart of [its] case in the [a]rbitration, and 

appear to be proportionate to [its] needs.”71 And, as discussed above, 

AlixPartners “may apply to [the District] Court for a protective order 

or for other relief as necessary to appropriately limit discovery.”72

All in all, we cannot conclude that the District Court erred, much 

less abused its discretion, in weighing the relevant factors and 

70 In re Fund for Protection of Inv. Rights in Foreign States, 2020 WL 3833457, at 

*4.; see Mees, 793 F.3d at 302 (“[A] district court evaluating a § 1782 discovery 

request should assess whether the discovery sought is overbroad or unduly 

burdensome by applying the familiar standards of Rule 26 of the Federal Rules of 

Civil Procedure.”); Fed. R. Civ. P. 26(b)(1) (“Parties may obtain discovery regarding 

any nonprivileged matter that is relevant to any party’s claim or defense and 

proportional to the needs of the case, considering the importance of the issues at 

stake in the action, the amount in controversy, the parties’ relative access to relevant 

information, the parties’ resources, the importance of the discovery in resolving the 

issues, and whether the burden or expense of the proposed discovery outweighs its 

likely benefit.”).

71 In re Fund for Protection of Inv. Rights in Foreign States, 2020 WL 3833457, at 

*4.

72 Id. (citing In re Accent Delight Int’l Ltd., 791 F. App’x 247, 252 (2d Cir. 2019) 

(“[T]he district court did not abuse its discretion by concluding that [p]etitioners’ 

requests would not be unduly burdensome and that, if issues arose, they could be 

resolved through a protective order.”)).
47

concluding that they favored granting of the Fund’s § 1782 

application.73

IV.

As a final matter, AlixPartners argues that the District Court 

abused its discretion in denying AlixPartners’s motion for 

reconsideration. AlixPartners takes issue with what it characterizes as 

the District Court’s “bright-line rule” that “arbitrations conducted 

pursuant to a bilateral investment treaty like the [Treaty before us 

here] do qualify as ‘foreign or international tribunals’ under § 1782.”74

We disagree with that characterization of the District Court’s 

decision. As the foregoing discussion makes clear, we do not create a 

“bright-line rule” that all arbitrations conducted pursuant to a bilateral 

investment treaty qualify as a “foreign or international tribunal,” and 

73 See supra note 22.

74 Appellants Br. 54 (quoting In re Fund for Protection of Inv. Rights in Foreign 

States, 2020 WL 5026586, at *2).
48

the District Court likewise created no such rule. Instead, we hold that 

the features of this particular arbitration, conducted pursuant to this

Treaty, are consistent with the functional features of foreign or 

international arbitral tribunals that, as we emphasized in Guo,

differentiate such arbitrations from private commercial arbitration. In 

these circumstances, we find no abuse of discretion in the District 

Court’s denial of reconsideration of its July 8, 2020 Order.

CONCLUSION

To summarize, we hold as follows:

(1) After considering the relevant Guo factors, this arbitration is 

between an investor and a foreign State party to a bilateral 

investment treaty (here, the Treaty), taking place before an 

arbitral panel established by that Treaty, and therefore it is a 

“proceeding in a foreign or international tribunal” under § 1782.
49

(2) The Fund is a party to the arbitration for which it seeks 

discovery assistance and the Fund is therefore an “interested 

person” under § 1782.

(3) The District Court did not abuse its discretion or otherwise err 

in determining that the Intel factors weigh in favor of granting 

the Fund’s application for discovery assistance.

For the foregoing reasons, we AFFIRM the July 8, 2020 Order and the 

August 25, 2020 Order of the District Court.