The Legal Industry Reviews

Third party discovery may be important to the prosecution or defense of a party's case in international arbitration. Understanding the process to compel documents or attendance at an evidentiary hearing is crucial to ensure that the evidence needed from the third party is obtained.

Although U.S. law is fairly uniform for compelling non-party witnesses to attend an arbitral hearing before arbitrators, it is less settled for compelling discovery from non-parties for use in a U.S. seated arbitration prior to a hearing. It is important to understand what circuits have expressly endorsed third party subpoenas and where to enforce the subpoena when a party fails to comply. A recent Ninth Circuit Court of Appeals decision broadened the scope of where an arbitrator "sits."

Arbitration in the U.S. is governed both by federal and state law. The Federal Arbitration Act (FAA) is the main source of U.S. arbitration and is applicable in the state and federal courts of all U.S. jurisdictions. Section 7 of the FAA provides that arbitrators may summon in writing a witness "to attend before them" and "bring with him or them and ... document... which may be deemed material as evidence in a case". If the person refuses or neglects to obey, "upon petition the United States court for the district in which such arbitrators, or a majority of them, are sitting may compel the attendance" or hold the person in contempt.

Although Section 7 is located in Chapter 1 of the Federal Arbitration Act (which some courts have argued addresses domestic arbitrations), a recent Federal Court of Appeals in the Ninth District held that "Section 7 is a nonconflicting provision in Chapter 1", and thus applied to international arbitration as well.

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