Ancillary Discovery to Prove Denial of Justice

Today foreign investors have a new and powerful weapon to challenge denial of justice. Bilateral investment treaties (BITs) require “fair and equitable treatment” consistent with customary international law, including “the obligation not to deny justice in criminal, civil, or administrative adjudicatory proceedings in accordance with the principles of due process embodied in the principle legal systems of the world.” Those treaties also create a private right of action, empowering investors with the right to initiate international arbitral proceedings directly against the host State. BITs provide the substance and the means for the effective review of judicial behavior. These treaties do not stand alone. They are part of an elaborate system of international scrutiny of national courts. A key emerging component of that system is ancillary discovery to prove denial of justice. Pursuant to bilateral investment treaties, international tribunals sit in judgment on domestic judicial misconduct. Pursuant to federal law, federal courts assist in the discovery of such misconduct. Far from deferring to the judicial acts of other sovereigns, federal courts are the handmaiden of international tribunals adjudicating foreign judicial misconduct, unearthing evidence that would be impossible to discover otherwise.Part I of the article reviews international law standards with respect to denial of justice and surveys the use of investment arbitration to enforce that law. While denial of justice has a long pedigree, the proliferation of investment arbitrations pursuant to BITs provides an effective vehicle to adjudicate such misconduct. Sovereigns now vest international tribunals with the power to sit in judgment on their domestic courts. In Part II, the article explores the burgeoning trend of pursuing ancillary discovery under 28 U.S.C. § 1782 to aid international tribunals. Federal courts uniformly agree that Section 1782 applies to investment arbitration and they routinely order liberal, American-style discovery in aid of such international proceedings. Part III presents the ongoing dispute between Chevron and Ecuador as a paradigmatic example of the use of ancillary discovery to prove denial of justice. Section 1782 proceedings have resulted in at least fifty orders and opinions from federal courts across the country. The ability to request ancillary discovery has proven essential to Chevron’s denial of justice claims. Chevron has procured virtually all of the key evidence in support of its allegations through Section 1782 discovery. Finally, Part IV addresses several implications regarding the use of ancillary discovery to prove denial of justice. These conclusions are that (1) the use of Section 1782 in aid of international tribunals reflects sensitivity to the comity of courts, not the comity of nations, such that federal courts determining whether to order ancillary discovery should consider the international tribunal’s receptivity to such assistance, but not the attitude of the foreign sovereign responding to allegations of international law violations; (2) Section 1782 reflects a congressional intent to allow interested parties to avail themselves of liberal discovery under the Federal Rules of Civil Procedure, resulting in the indirect incorporation of American-style discovery into international proceedings; (3) liberal discovery pursuant to Section 1782 promotes evidentiary forum shopping, encouraging parties to pursue ancillary discovery in the United States rather than rely on the discovery procedures available in international arbitration; and (4) providing foreign investors with a remedy for denial of justice, together with a robust means to prove such a violation, alters the host State’s incentives and requires it to play a two-level game that reconciles international obligations with domestic political preferences.