Obtaining Evidence From Non-Parties In International Arbitration In The United States - ARIA Vol. 20 No. 4 2009
Originally from American Review of International Arbitration - ARIA
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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.