Fund for Protection of Investors Rights in Foreign States v The Republic of Lithuania - Respondent Order on the Respondent's Request regarding the Claimant's application pursuant to Section 1782 of 28 USC - 18 December 2019
UNCITRAL Investment Arbitration under 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 Arbitral Tribunal:
Dr. Laurent Lévy (Presiding Arbitrator)
Christopher Thomas QC
Prof. William Park
B. THE PROCEDURAL HISTORY
6. On 29 April 2019, the Claimant filed the Notice of Arbitration against the Respondent, pursuant to Article 10 of 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 signed on 29 June 1999 and entered into force on 24 May 2004 and Article 3 of the UNCITRAL Arbitration Rules 1976 (the "UNCITRAL Rules").
7. On 29 August 2019, the Claimant filed an Ex Parte Application Pursuant to 28 U.S.C.
§ 1782 for an Order Granting Leave to Obtain Discovery for Use in a Foreign Proceeding (the "1782 Application") before the U.S. District Court in the Southern District of New York (the "NY Court"). The 1782 Application seeks an order granting leave to obtain third-party discovery from Mr. Simon Freakley ("Mr. Freakley") and AlixPartners LLP ("AlixPartners") for the use in this arbitration.
8. On 1 October 2019, AlixPartners and Mr. Freakley filed a Response in Opposition to the 1782 Application. On 15 October 2019, the Claimant filed its Reply in Further Support of the 1782 Application.
9. On 23 October 2019, Dr. Laurent Lévy accepted his appointment as the President of the Tribunal, following the joint proposal of Prof. William Park and Christopher Thomas QC appointed by the Parties on 20 August 2019 and 19 September 2019 respectively.
10. On 8 November 2019, the Respondent filed a Letter in connection with the 1782 Application (the "Request") asking the Tribunal to order the Claimant to withdraw the 1782 Application. On 4 December 2019, the Claimant responded to the Request (the "Response to the Request").
28. In light of the above, the Tribunal
i. Dismisses the Respondent's request to order the Claimant to withdraw the 1782 Application;
ii. Dismisses the Respondent's request to restrain the Claimant from initiating any parallel proceedings that may interfere with the power of this Tribunal pursuant to Article 24(3) of the UNCITRAL Rules to control the taking of evidence in this case and generate additional and unnecessary costs; and
iii. Dismisses the Respondent's request to order the Claimant to bear any costs incurred by the Respondent in connection with the 1782 Application and the Respondent's Request of 8 November 2019.