Under 28 U.S.C. § 1782, “[t]he district court of the district in which a person resides or is found may order him to . . . produce a document for use in a proceeding in a foreign or international tribunal . . . .” Courts in the Second Circuit appear to be coming around to accepting that a commercial arbitration can be “a foreign or international tribunal” for these purposes. Swell. But there is one more thing: they are also likely to treat a subpoena under that statute like a subpoena under Fed. R. Civ. P. 45, and therefore require that the court have personal jurisdiction — general, preferably — over the subpoena target. See, Australia and New Zealand Banking Group Ltd. v. APR Energy Holding Ltd., 2017 U.S. Dist. LEXIS 142404 (S.D.N.Y. Sept. 1, 2017) (“ANZ Bank”).

In ANZ Bank, a subpoena had been issued to ANZ Bank’s New York branch office based upon an ex parte application under 28 U.S.C. § 1782. Id. at *5. The request was made by APR in connection with its arbitration against Australia under the Australia-U.S. Free Trade Agreement (“AUSFTA”), in which APR claimed that the application by Australia of a domestic law (the Personal Property Securities Act) had worked an expropriation of APR’s alleged private property in violation of the AUSFTA. ANZ Bank moved to quash the subpoena.

The court (Caproni, J.) granted the motion on the ground that the Constitution’s due process protections applied to the proceeding, over and above the requirements of Section 1782, and the court lacked personal jurisdiction over ANZ Bank.

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