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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

NOTICE OF SUPPLEMENTAL AUTHORITY

The Republic of Panama, by and through its undersigned counsel, hereby gives notice of the decision of the U.S. Supreme Court in ZF Automotive US Inc. v. Luxshare Ltd., 596 U.S. ___, S. Ct. ___, No. 21-401, 2022 WL 2111355 (U.S. June 13, 2022), rev’g Fund for Prot. of Invs.' Rights in Foreign States v. AlixPartners, LLP, 5 F.4th 216, 228 (2d Cir. 2021),¹ as supplemental authority in support of its Motion to Intervene, to Vacate the Court’s May 19, 2022 Order, and to Quash the WSP USA Subpoena (ECF No. 13). A copy of the Supreme Court’s decision is attached hereto as Exhibit A.

In support of their ex parte application under 28 U.S.C. § 1782, Applicants Webuild S.p.A. and Sacyr S.A., in reliance on the Second Circuit’s holding in Fund for Prot. of Inv’r Rights in Foreign States v. AlixPartners, LLP, 5 F.4th 216, 228 (2d Cir. 2021), argue that because “the requested discovery is ‘for use in’ the international ICSID arbitration between Webuild and Panama under the Italy-Panama Treaty and/or the UNCITRAL arbitration between Sacyr and

¹ The Supreme Court consolidated AlixPartners, LLP v. Fund for Protection of Investors' Rights in Foreign States, No. 21-518, with ZF Automotive for briefing and oral argument. See Docket for 21-518, https://www.supremecourt.gov/docket/docketfiles/html/public/21-518.html (last visited June 13, 2022). ↩

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Panama under the Spain-Panama treaty,” the application “meets the ‘foreign or international tribunal’ requirement” of § 1782. Id. at 15-16.

The Supreme Court has now reversed the Second Circuit’s decision in Fund for Protection of Investors’ Rights. The Supreme Court held that “only a governmental or intergovernmental adjudicative body constitutes a ‘foreign or international tribunal’ under §1782. Such bodies are those that exercise governmental authority conferred by one nation or multiple nations.” ZF Automotive, 2022 WL 2111355, at *10 (Ex. A, slip op. at 16-17). The Supreme Court further held that an investor-state arbitration “under a bilateral investment treaty between Lithuania and Russia,” id. at *4 (Ex. A., slip op. at 4), did not meet this test because “nothing in the treaty reflects Russia and Lithuania’s intent that [the arbitral] panel exercise governmental authority,” id. at *9 (Ex. A, slip op. at 13-14)

The Supreme Court’s holding in ZF Automotive applies with equal force here and further supports the grant of Panama’s motions.

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Dated: New York, New York
June 13, 2022

ARNOLD & PORTER KAYE SCHOLER LLP

By: /s/ Samuel Lonergan

Samuel Lonergan
Mélida Hodgson
Mitchell Russell Stern
250 W. 55th Street
New York, NY 10019-9710
Tel: 212.836.8000
Fax: 212.836.8689
[email protected]
[email protected]
[email protected]

E. Whitney Debevoise
(pro hac vice application forthcoming)
601 Massachusetts Avenue, NW
Washington, DC 20001-3743
Tel: 202.942.5000
Fax: 202.942.5999
[email protected]

Attorneys for the Republic of Panama