Chevron became embroiled in lengthy litigation over an alleged environmental contamination of oil fields in Ecuador. In response, Chevron filed for arbitration under the UNCITRAL Rules, as allowed by the US-Ecuador bilateral investment treaty (BIT), alleging a miscarriage of justice in the Ecuadorian courts and fraud. In connection with the BIT arbitration and the ongoing litigation in Ecuador, both parties repeatedly sought discovery through US courts, under 28 U.S.C. § 1782 (section 1782). Section 1782 is designed to promote international dispute resolution and comity by authorising federal district courts to issue discovery orders compelling testimony or document production in assistance of ancillary proceedings before "foreign or international tribunals."

In Republic of Ecuador v Connor & Chevron Corp., Nos. 12-20122 and 12-20123, 2013 U.S. App. LEXIS 3087 (5th Cir. Feb. 13, 2013), the Republic of Ecuador applied to the US District Court for the Southern District of Texas, under section 1782, for discovery from Mr. John Connor, to assist in the BIT arbitration against Chevron. Chevron intervened in the court proceedings to protect its interests. When the District Court denied Ecuador's discovery request by agreeing with Chevron's argument that the BIT arbitration could not be considered a "foreign or international tribunal" covered by section 1782, Ecuador appealed to the Fifth Circuit.

On appeal, the Fifth Circuit held that judicial estoppel precluded Chevron's argument that section 1782 discovery was unavailable. Judicial estoppel is an equitable doctrine developed to protect the integrity of judicial proceedings by prohibiting litigants from asserting contradictory positions for tactical advantage. The Fifth Circuit held that, while contrary legal positions may be defensible (for instance, when driven by intervening changes in the law or the existence of different applicable bodies of law), "clearly" contradictory positions that are invoked for tactical benefit would be barred by judicial estoppel.

Since Chevron had benefited repeatedly in its own section 1782 discovery requests by arguing against Ecuador, and others, in numerous district courts, and on appeal in other circuits, that the BIT arbitration was a "foreign or international tribunal," the Fifth Circuit held that judicial estoppel prevented Chevron from abruptly reversing its position and asserting an inconsistent argument to avoid section 1782 discovery.

This case demonstrates the implications of the equitable doctrine of judicial estoppel on requests for judicial assistance in ancillary non-domestic arbitration proceedings. More generally, the case highlights a potential drawback when advancing inconsistent arguments in multiple forums.