In In re Application of Chevron Corp., 709 F. Supp. 2d 283 (S.D.N.Y. 2010), the District Court for the Southern District of New York allowed Chevron to subpoena 600 hours of unreleased footage from a documentary film, to be used as evidence in an UNCITRAL arbitration with Ecuador and other legal proceedings, finding that an investment arbitral panel is a "foreign tribunal" within the meaning of 28 USC 1782.

The footage at issue is from a documentary that was made at the suggestion of a lawyer who represents a group of indigenous plaintiffs who are bringing a $27 billion lawsuit in Lago Agrio, Ecuador against Chevron for environmental damage. Chevron claims that the outtakes will show collusion between the Ecuadorean judge, the court-appointed expert, the Ecuadorian government, and plaintiffs. Chevron wants to use the footage as evidence both in the Lago Agrio lawsuit and in the UNCITRAL arbitration claim it filed against Ecuador in September 2009 under the US-Ecuador bilateral investment treaty.

This case sheds light on 28 U.S.C. § 1782, a statute that authorizes US courts to order discovery of evidence for use by a "foreign or international tribunal." The court held that while section 1782 does not permit discovery in aid of a commercial arbitration between private parties, it does allow such discovery in an investment arbitration established by treaty. The court relied on a dictum in the Supreme Court's decision in Intel Corp v Advanced Micro Devices Inc., 542 U.S. 241 (2004) defining "tribunal" to include "administrative and arbitral tribunals." Several other district courts have held that investment treaty arbitrations under UNCITRAL rules are within the scope of 28 USC 1782.

Because the Southern District of New York is a uniquely popular forum for litigation related to international arbitration, this decision, will have a significant impact on the availability of discovery for use in investment treaty arbitrations.