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In Re Application of Thai-Lao Lignite (Thailand) Co.

October 31, 2011

IN RE APPLICATION OF THAI-LAO LIGNITE (THAILAND) CO., LTD.
& HONGSA LIGNITE (LAO PDR) CO., LTD.



The opinion of the court was delivered by: John D. Bates United States District Judge

FOR AN ORDER DIRECTING DISCOVERY IN AID OF FOREIGN PROCEEDING FROM ELECTRICITE DE FRANCE INTERNATIONAL PURSUANT TO 28 U.S.C. § 1782

MEMORANDUM OPINION

Thai-Lao Lignite (Thailand) Co., Ltd. and Hongsa Lignite (Lao PDR) Co., Ltd. ("Petitioners") have filed an ex parte petition for discovery in aid of a proceeding before a foreign tribunal pursuant to 28 U.S.C. § 1782. For the reasons explained below, the Court will deny the petition.

BACKGROUND

Petitioners obtained an arbitration award against the Government of the Lao People's Democratic Republic ("Laos") on November 4, 2009. Subsequently, they commenced an exequatur proceeding in the Paris Court of First Instance to confirm the award pursuant to the United National Convention for the Recognition and Enforcement of Foreign Arbitral Awards (June 10, 1958), 21 U.S.T. 2517, 330 U.N.T.S. 38, more commonly known as the "New York Convention." The Paris Court of First Instance granted exequatur in August 2010. See Declaration of Jerome Barzun ¶ 4 (May 24, 2011)("Barzun Decl."); Ex. A to Barzun Decl.

Once an order of exequatur has been entered confirming an arbitration award, the prevailing party can then initiate measures to freeze the assets of the party against whom enforcement of the award is sought. Am. Pet. ¶ 10. Petitioners claim that Laos has refused to voluntarily pay the award; accordingly, they now seek information from Electricite de France International ("EDFI") concerning any French assets owned or controlled by Laos. Id. ¶¶ 4, 18. Specifically, petitioners assert that EDFI is the principal shareholder, lead contractor, and project operator of Nam Theun 2, a hydroelectric power facility in Laos. Id. ¶¶ 4, 11. They further contend that the revenues generated by Nam Theun 2 -- in which Laos has a property interest --are located within or pass through French financial institutions and are attachable assets under French law. Id. ¶ 13.*fn1 In furtherance of their effort to obtain information about Laos' assets, petitioners filed an ex parte petition in this Court on June 1, 2011 for assistance in aid of a foreign proceeding pursuant to 28 U.S.C. § 1782. That original petition named EDFI as respondent, listed an office address of 1300 I Street, NW in Washington, D.C., and sought an order directing EDFI to provide responsive information concerning any French assets owned by or commercial debts owed to Laos. Pet. ¶ 4.

This Court ordered petitioners to serve the ex parte application on EDFI, along with an order for EDFI to show cause as to why the petition should not be granted. However, much confusion has arisen subsequently with respect to the entities (as well as the location of their offices) from which petitioners seek information. After their attempt to serve EDFI with the relevant documents at the listed Washington, D.C. address proved unsuccessful, petitioners sought to amend their petition to reflect 5404 Wisconsin Avenue in Chevy Chase, Maryland, as the proper address for EDFI, and to include an additional allegation that "EDFI has continuous and systematic contacts with this District that are tantamount to EDFI's being 'found' in this District pursuant to Section 1782." Mot. to Am. Pet. at ¶¶ 4,6 (June 17, 2011). Although the amended petition continued to name Electricite de France International as the respondent, it was served at the Chevy Chase, Maryland address on an entity that has since identified itself as EDF Inc., a U.S.-based holding company with interests in the energy sector. Opp'n at 3; Declaration of Pauline Crane, Legal Counsel at EDF Inc. ¶ 9 (July 15, 2011) ("Crane Decl."). EDF Inc. responded to this Court's order to show cause claiming that, to its knowledge, EDFI is a nonexistent entity, and objecting to the relief requested in the amended petition should the Court construe it as one against EDF Inc. or its parent company.

Adding to the confusion, petitioners also state that "publicly-available documentation shows that EDFI maintains an office at 1730 Rhode Island Avenue NW, in Washington D.C." They attach online directory information listing that address for "Electricite de France Intl". Am. Pet. ¶ 5; Exs. B, C, D & E to Declaration of Charlene Sun (June 20, 2011) ("Sun Decl."). EDF Inc. contends that this address was the location for Electricite de France International North America Inc. ("EDFINA") -- which it describes as a "now-defunct company" that was dissolved in December 2009 and merged into EDF Inc. Crane Decl. ¶ 10. According to EDF Inc., EDFINA became a wholly-owned subsidiary of EDF International. See Opp.'n at 5 n. 2. EDF Inc. asserts that "[n]either EDF International nor EDF Inc. (nor any EDF-related entity) currently occupies 1730 Rhode Island Avenue NW." Id. Moreover, EDF Inc. -- which describes itself as a Delaware-incorporated, Maryland-headquartered holding company, id. at 5 -- formerly had an office at 1300 I Street, N.W. in Washington, D.C. (where petitioners originally sought to serve the petition), but the parties agree that in August 2010, EDF Inc. moved its headquarters to 5404 Wisconsin Avenue in Chevy Chase, Maryland, and that it no longer maintains an office at that Washington, D.C. address. See Crane Decl. ¶ 9; Ex. A to Sun Decl. Despite these events, petitioners claim that EDF Inc. operates as an "agent or branch office" of its parent companies, EDF International and EDF Group, and that service upon EDF Inc. should "suffice" as service upon EDF International and EDF Group. Reply at 1. They also seek to obtain information from EDF International and EDF Group pursuant to section 1782, on the basis that EDF Inc. acts as the alter ego of its parent companies. Id. at 5. In the alternative, petitioners request leave to amend their petition for a second time to name EDF Inc., the entity served, as the respondent. Id. at 4.

DISCUSSION

Petitioners bring this action pursuant to 28 U.S.C. § 1782(a), which enables district courts to order discovery "for use in a proceeding in a foreign or international tribunal."*fn2 This statute authorizes a district court to permit discovery when (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 proceeding before a foreign tribunal, and (3) the application is made by a foreign or international tribunal or any interested person. See 28 U.S.C. § 1782(a);

In re Caratube Int'l Oil Corp., 730 F. Supp. 2d 101, 104 (D.D.C. 2010); Schmitz v. Bernstein, Liebhard & Lifshitz, LLP, 376 F.3d 79, 83 (2d Cir. 2004).

Even where section 1782's threshold requirements are met, "a district court is not required to grant a § 1782(a) discovery application simply because it has the authority to do so." Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264 (2004); see also id. at 247 ("§ 1782(a) authorizes, but does not require, a federal district court to provide judicial assistance to foreign or international tribunals . . . ."). Rather, the Supreme Court has identified several factors for courts to consider in evaluating petitions under section 1782. A court could weigh, for example, whether "the person from whom discovery is sought is a participant in the foreign proceeding." Id. at 264. Courts also "may take into account the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign . . . court . . . to U.S. federal-court judicial assistance." Id. Additionally, "a district court could consider 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." Id. at 264-65. And "unduly intrusive or burdensome requests may be rejected or trimmed." Id. at 265. In examining these factors, district courts should consider "'the twin aims of [section 1782]: providing efficient means of assistance to participants in international litigation in our federal courts and encouraging foreign countries by example to provide similar means of assistance to our courts.'" Schmitz, 376 F.3d at 84 (quoting In re Metallgesellschaft AG, 121 F.3d 77, 79 (2d Cir. 1997)).

Hence, a court's analysis with respect to petitions pursuant to section 1782 proceeds in two parts. A court first considers whether it has the authority to grant the petition. Once it has decided this question in the affirmative, it proceeds to the second inquiry -- whether to exercise its discretion in granting the petition. See Lazaridis v. Int'l Centre for Missing & ...


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