In Re the Application of the Fund for Protection of Investor Rights in Foreign States pursuant to 28 USC 1782 for an Order granting leave to Obtain Discovery for use in a Foreign Proceeding

Filing 35

ORDER denying 28 Motion for Reconsideration re 27 Order on Motion for Miscellaneous Relief. Accordingly, Freakley and AlixPartner's motion for reconsideration is DENIED. The Clerk of Court is directed to terminate the motion at ECF No. 28. SO ORDERED. (Signed by Judge Analisa Torres on 8/25/2020) (kv)

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appeal does not divest a district court of jurisdiction over [a] motion for reconsideration.”
(internal quotation marks and citation omitted)); United States v. Erskine, No. 05 Cr. 1234, 2014
WL 12862427, at *1 (S.D.N.Y. Apr. 24, 2014) (“As [the defendant] filed his motion for
reconsideration before he filed his notice of appeal, however, I retain jurisdiction over [the]
motion for reconsideration.”).
Accordingly, the Court concludes it has jurisdiction to decide Freakley and AlixPartner’s
motion.
II.

Legal Standard

Motions for reconsideration are governed by Rule 59 of the Federal Rules of Civil
Procedure and Local Civil Rule 6.3, and are entrusted to the “sound discretion” of the district
court. Davidson v. Scully, 172 F. Supp. 2d 458, 462 (S.D.N.Y. 2001) (internal quotation marks
and citation omitted). A court may grant a motion for reconsideration “to correct a clear error of
law or prevent manifest injustice.” Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir.
2004) (internal quotation marks and citation omitted). “The standard for granting such a motion
is strict, and reconsideration will generally be denied unless the moving party can point to
controlling decisions or data that the court overlooked—matters, in other words, that might
reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp.,
Inc., 70 F.3d 255, 257 (2d Cir. 1995).
To that end, a party “may not use a motion under Rule 6.3 to advance new facts, issues or
arguments not previously presented to the court.” McGee v. Dunn, 940 F. Supp. 2d 93, 100
(S.D.N.Y. 2013) (internal quotation marks and citation omitted); see also Analytical Surveys,
Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (“It is well-settled that Rule 59 is not
a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing
on the merits, or otherwise taking a second bite at the apple.” (internal quotation marks and
citation omitted)). The burden rests with the party seeking reconsideration to “demonstrate that
the Court overlooked controlling decisions or factual matters that were put before it on the
underlying motion.” Davis v. Gap, Inc., 186 F.R.D. 322, 324 (S.D.N.Y. 1999).
III.

Analysis

Freakley and AlixPartners argue that the July Order should be reconsidered in light of the
Second Circuit’s holding in In re Guo, 965 F.3d 96 (2d Cir. 2020), an opinion issued on the same
day as the July Order. Reconsideration Mem. at 5, ECF No. 29. In Guo, the Second Circuit held
that § 1782(a) does not extend to private international commercial arbitrations, reaffirming its
prior holding in National Broadcasting Co. v. Bear Stearns & Co., 165 F.3d 184 (2d Cir. 1999)
(“NBC”). 965 F.3d at 106–07. The Second Circuit also provided guidance as to the factors that
determine whether an arbitral proceeding constitutes a “foreign or international tribunal” for
purposes of § 1782, holding that courts should look to “the degree of state affiliation and
functional independence possessed by the entity, as well as the degree to which the parties’
contract controls the panel’s jurisdiction,” and that ultimately “the inquiry is whether the body in
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question possesses the functional attributes most commonly associated with private arbitration.”
Id. at 107.
Freakley and AlixPartners argue that the July Order cannot stand in light of Guo because
the July Order focused on the Arbitration’s origins in governmental action, rather than its current
governmental status. Reconsideration Mem. at 6. Freakley and AlixPartners further argue that
application of the Guo factors to the Arbitration would indicate that it was a private arbitration.
Id. at 8.
Contrary to Freakley and AlixPartner’s contentions, Guo suggests that arbitrations
conducted pursuant to a bilateral investment treaty like the Treaty do qualify as “foreign or
international tribunals” under § 1782. The applicant in Guo argued that the arbitral body at issue
was not a typical private arbitration, but instead “most closely resemble[d] arbitration under
bilateral investment treaties.” Guo, 965 F.3d at 108 n.7. The Second Circuit rejected that
argument, explaining:
While an arbitral body under a bilateral investment treaty may be a “foreign or
international tribunal,” the arbitration here derives adjudicatory authority solely
from the parties’ agreement, rather than the intervention or license of any
government to adjudicate cases arising from certain varieties of foreign
investment. Additionally, the dispute here is between two private parties, while
arbitration under bilateral investment treaties is typically between a private party
and a state.
Id.; see also id. at 108 (“To be sure, [the ability of the parties to select their own arbitrators] is
not determinative, as agreements between countries to arbitrate disputes between their citizens
may involve selection of the arbitrators by the parties, and such a tribunal may be a ‘foreign or
international tribunal’ notwithstanding this fact.”).
Freakley and AlixPartners point to Guo’s enumeration of the particular characteristics of
the arbitral body at issue in that case that indicated it was a private arbitration, and assert that the
Tribunal shares many of them. Reconsideration Mem. at 9–14; see Guo, 965 F.3d at 107–08
(considering “the extent to which the arbitral body is internally directed and governed by a
foreign state or intergovernmental body,” “the degree to which a state possesses the authority to
intervene to alter the outcome of an arbitration after the panel has rendered a decision,” whether
the “panel derives its jurisdiction exclusively from the agreement of the parties and has no
jurisdiction except by the parties’ consent,” and “the ability of the parties to select their own
arbitrators”). They presented arguments based on those same factors in their opposition to
Applicant’s motion, largely relying on the district court opinion affirmed in Guo. Opp. at 10–12,
ECF No. 18. The Court nonetheless held that the Arbitration was taking place before a “foreign
or international tribunal” within the meaning of § 1782 in light of the role of bilateral investment
arbitration as a tool of international relations, the fact that the Tribunal derives its jurisdiction
from the Treaty, and the fact that the Arbitration is a means by which Applicants are bringing
claims against the Republic of Lithuania in its capacity as a state. July Order at 4–5 & n.1.
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Those factors indicate that the Tribunal does not “possess[] the functional attributes most
commonly associated with private arbitration.” Guo, 965 F.3d at 107. Thus, nothing in Guo
requires the Court to disturb its previous conclusion.
CONCLUSION
Accordingly, Freakley and AlixPartner’s motion for reconsideration is DENIED. The
Clerk of Court is directed to terminate the motion at ECF No. 28.
SO ORDERED.
Dated: August 25, 2020
New York, New York

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