Until 2004, it seemed to be settled law that international commercial arbitration tribunals did not fall within the ambit of Section 1782, which allows a litigant outside the United States to apply to an American court to obtain evidence for use in a non-US proceeding. The only Courts of Appeal to decide whether an international commercial arbitration tribunal was a foreign or international tribunal within Section 1782 held that they were not. See National Broadcasting Company, Inc. v. Bear Stearns & Co., Inc., 165 F.3d 184 (2nd Cir. 1999) (“NBC”); Republic of Kazakhstan v. Biedermann International, 168 F.3d 880 (5th Cir. 1999)(“Biedermann”).
The Section 1782 landscape shifted significantly in late 2019 and 2020. The Sixth and Fourth Circuit parted company with the Second and Fifth Circuit. Expressly rejecting NBC and Beidermann, both held that international commercial arbitration tribunals are foreign or international tribunals for purposes of Section 1782. Servotronics, Inc. v. The Boeing Company and Rolls-Royce PLC, Docket No. 18-2454 (4th Cir. 2020); In re Application to Obtain Discovery for Use in Foreign Proceedings, 939 F.3d 710, 723 (6th Cir. 2019). Not to be outdone, on July 8, 2020, the Second Circuit confirmed its prior ruling the international commercial arbitration tribunals do not qualify as foreign tribunals under Section 1782. In re: Application and Petition of Hanwei Guo, No. 19-781 (2d Cir. July 8, 2020).
Moderated by Tom Sikora, David Zaslowsky and David Livshiz debate opposing sides of the issue.
Tom Sikora, Senior Counsel, International Disputes, Exxon Mobil Corporation
Tom manages international commercial and investment arbitration for Exxon Mobil Corporation. Prior to joining ExxonMobil, he spent ten years at El Paso Corporation managing the company’s international arbitration and complex litigation. Tom initially practiced international arbitration of energy, construction and insurance disputes at Vinson & Elkins LLP in Houston, Texas.
Tom is a member of the Council (formerly Board of Directors) of the American Arbitration Association and the International Centre for Dispute Resolution. Tom also serves as a Co-Chair of the Energy Arbitrators List. He is a former officer of the IBA Arbitration Committee and former member of the ICC Commission on Arbitration.
Tom graduated from Harvard with an A.B. in History and Literature and from the University of Virginia School of Law with a J.D.
David Zaslowsky, Partner, Baker McKenzie
David Zaslowsky chairs the Litigation Department of Baker McKenzie's New York office, and practices in the area of general commercial litigation and arbitration. He is the editor of the Firm's blockchain blog and co-editor of the Firm's International Litigation & Arbitration Newsletter. David has a degree in computer science and has worked on numerous technical-related disputes. He has also worked on many cases involving issues of international litigation, including matters related to the Foreign Sovereign Immunities Act, enforcement of foreign arbitral awards, the Alien Tort Claims Act, forum non conveniens, obtaining discovery in aid of foreign proceedings under 28 U.S.C. Section 1782, and foreign attachments. David has been included for a number of years in the Chambers USA Guide and Chambers Global Guide for his expertise in International Arbitration.
David Livshiz, Counsel, Freshfields Bruckhaus Deringer US LLP
David Livshiz represents clients in complex commercial disputes, criminal and civil fraud actions, and bankruptcy litigation. He also works with companies and individuals in criminal and civil investigations conducted by the US Department of Justice, the Attorneys’ Office, the Securities and Exchange Commission and various other regulatory agencies. David assists clients in a broad array of contexts, including jury trials, proceedings pending before federal and state trial and appellate courts, and as debtors and creditors in bankruptcy proceedings (including in adversary proceedings and contested matters). He has worked in all stages of litigation, from initial investigations to trial. Additionally, David has significant experience representing financial institutions and corporations from countries of the former Soviet Union, as well as US companies engaged in business in the region, on their litigation and regulatory exposure in the United States. Additionally, David has significant experience representing financial institutions and corporations from countries of the former Soviet Union, as well as US companies engaged in business in the region, on their litigation and regulatory exposure in the United States.