Published: April 2004
Practice and Procedure
The purpose of this article is to provide guidelines for arbitrators and counsel who need to know when, where and to what extent subpoenas by arbitrators to parties or non-parties will be enforceable under U.S. law.
Following an initial section discussing the effect of party agreement upon arbitrators’ subpoena power (Section I below), the article addresses three issues: (i) the power of an arbitrator to direct a person to appear as a witness or produce documents at the hearing (Section II); (ii) an arbitrator’s power to order prehearing document discovery (Section III); and (iii) an arbitrator’s power to order discovery depositions (Section IV). The discussion distinguishes, as needed, the situations of parties and non-parties, a distinction that has become critical in view of a recently articulated split among the federal circuit courts of appeal regarding the enforceability of pre-hearing discovery subpoenas to non-parties. This article also briefly addresses issues of enforcement of arbitral orders and subpoenas (Section V) and arbitral subpoenas in international arbitration in the U.S. (Section VI).
*The authors practice arbitration at White & Case LLP (N.Y.). The authors thank Sara Lulo, our colleague in White & Case’s N.Y. arbitration group, for her assistance in the preparation of this article.