Revue - Les Cahiers de l'Arbitrage N°1-2023 - 138

CASE LAW
Second, the treaty at issue did not itself create the tribunal. 114
Third, the ICSID tribunal functions independently and is not affiliated with
any of the treaty's signatory States. 115
for arbitration. 113
government funding, but instead is funded by the disputing parties. 116
authority from the disputing parties' consent to arbitrate. 118
Fourth, the tribunal does not receive any
Fifth, the
tribunal maintains confidentiality and a resulting award is made public only
with the consent of the disputing parties. 117
And sixth, the tribunal derives its
As a result, the
court found that the treaty's signatory States had not imbued the ICSID tribunal
with governmental authority, and thus that the tribunal was not a " foreign or
international tribunal. " 119
Though the court's order in Webuild narrows the avenues available to parties
to seek § 1782 production, it is not a dead end. The district court's order is not
binding on other courts and is under appeal. Therefore, parties may continue to
seek § 1782 production for use in ICSID arbitrations.
Second, the multilateral investment court ( " MIC " ) championed by the European
Union, could, if ultimately established, constitute an " international tribunal " for
purposes of § 1782. International negotiations on the MIC are ongoing within the
framework of Working Group III of the United Nations Commission on International
Trade Law. 120
Under some of the current proposals (which remain in negotiations),
an eventual MIC may exhibit many of the traits that could indicate the conferral of
government authority-both distinguished from commercial and ad hoc tribunals,
and by favorable comparisons to the State-to-State mechanism in the RussiaLithuania
BIT. For instance, unlike commercial and ad hoc tribunals, the MIC
would be a permanent institution. 121
The proceedings would be transparent rather
than confidential. 122
States. 123
Its judges would be tenured and appointed by the member
Their salaries would be paid for by member States. The MIC would be
funded by its member States, as opposed to the disputing parties. 124
These traits
would, at minimum, evince " a higher level of government involvement. " 125
113. In re Webuild S.P.A., No. 22-MC-140 (LAK), 2022 WL 17807321, at *1 (S.D.N.Y. Dec. 19,
2022).
114. Id. at 2.
115. Id.
116. Id.
117. Id.
118. Id.
119. Id. at 3.
120. See e.g., U.N. Comm'n on Int'l Trade Law, Standing Multilateral Mechanism: Selection
and Appointment of ISDS Tribunal Members and Related Matters, U.N. Doc. A/CN.9/WG.III/WP.213
(2022).
121. Mary Zhao, Investor-State Dispute Settlement Reform: Reconsidering the Multilateral
Investment Court in the Context of Disputes Involving Intellectual Property Law, 44 Colum. J.L. &
Arts 545, 550 (2021).
122. European Commission, Multilateral Investment Court Project, European Commission,
https://policy.trade.ec.europa.eu/enforcement-and-protection/multilateral-investment-court-project_
en (last visited Nov. 4, 2022)
123. Zhao, supra note 121 at 562.
124. See Marc Bungenberg & August Reinisch, Draft Statute of the Multilateral Investment
Court art. 7 (Nov. 2020), https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/
en/bungen berg_reinisch_draft_statute_of_the_mic.pdf ( " The annual budget shall be borne by the
Members. " ).
125. Luxshare, 142 S. Ct. at 2090 n.4.
136
The Paris Journal of International Arbitration 2023‑1

https://policy.trade.ec.europa.eu/enforcement-and-protection/multilateral-investment-court-project_en https://policy.trade.ec.europa.eu/enforcement-and-protection/multilateral-investment-court-project_en https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/bungenberg_reinisch_draft_statute_of_the_mic.pdf https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/bungenberg_reinisch_draft_statute_of_the_mic.pdf

Revue - Les Cahiers de l'Arbitrage N°1-2023

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