Obtaining Evidence From Non-Parties In International Arbitration In The United States – Vol. 20 No. 4

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Author: Report of the International Commercial Disputes Committee of the Association of the Bar of the City of New York

Published: December 2010

United States
Commercial Disputes
Judicial Assistance in Procedural Matters

Description: Section 7 of the Federal Arbitration Act (“FAA”)––which applies to any arbitration in the United States involving interstate or international commerce—provides: The arbitrators . . . or a majority of them, may summon in writing any person to attend before them or any of them as a witness and in a proper case to bring with him or them any book, record, document, or paper which may be deemed material as evidence in the case . . . . Said summons shall issue in the name of the arbitrator or arbitrators, or a majority of them, and shall be signed by the arbitrators, or a majority of them, and shall be directed to the said person and shall be served in the same manner as subpoenas to appear and testify before the court; if any person or persons so summoned to testify shall refuse or neglect to obey said summons, upon petition the United States district court for the district in which such arbitrators, or a majority of them, are sitting may compel the attendance of such person or persons before said arbitrator or arbitrators, or punish said person or persons for contempt in the same manner provided by law for securing the attendance of witnesses or their punishment for neglect or refusal to attend in the courts of the United States.

Under § 7, the ability of the parties to, and arbitrators in, domestic or international arbitrations to obtain documents and testimony from non-parties is far more circumscribed than the ability of litigants in U.S. litigation to obtain evidence from non-parties in federal court. It is subject, in the first instance, to the discretion of the arbitrators, who must issue any subpoena and, potentially, to the review of the federal district court in the place where the arbitrators are sitting, which must enforce it.

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