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Ninth Circuit allows enforcement of arbitral summonses outside of federal district in which arbitration is seated

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Home Perspectives Ninth Circuit allows enforcement of arbitral summonses outside of federal district in which arbitration is seated
On Monday, August 1, 2022, the U.S. Court of Appeals for the Ninth Circuit issued a unanimous opinion in Day v. Orrick, Herrington & Sutcliffe, LLP, No. 21-16642, 2022 U.S. App. LEXIS 21149, at *3 (9th Cir. Aug. 1, 2022), holding that a federal action or proceeding relating to an arbitral agreement falling under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Convention) may be brought in any district court deemed appropriate under the general federal venue statute, 28 U.S.C. § 1391, such that the district court may enforce arbitral summonses requiring appearance at a hearing taking place somewhere other than at the contractual seat of the arbitration.

Authors: Ed Mullins

Specifically, the Ninth Circuit remanded the case to the district court with instructions to enforce Appellant Jones Day’s petitions to compel Appellees Orrick, Herrington & Sutcliffe, LLP (Orrick) and two of its partners to comply with an arbitrator’s summonses. The summonses required Appellees to appear at a hearing in an international arbitration conducted pursuant to chapter 2 of the Federal Arbitration Act (FAA). Notably, the hearing was to be conducted in the Northern District of California, a location other than the agreed-upon seat of the arbitration, which was Washington, D.C.

The underlying arbitration involved a dispute between Jones Day and one of its former partners, a German national who left Jones Day to join Orrick. The partnership dispute initially was filed to be arbitrated in Washington D.C., as that was the location designated in the arbitration agreement. At Jones Day’s request, the arbitrator issued a subpoena to Orrick and summoned Orrick to appear before him to produce specified documents. When Jones Day sought to enforce this in the Superior Court of the District of Columbia, that court dismissed Jones Day’s petition on the grounds that it lacked personal jurisdiction over Orrick and that section 7 of the FAA required that Jones Day file the action in a U.S. district court.

In response, Jones Day requested that the arbitrator sit for a hearing in the Northern District of California and issue a revised subpoena to two Orrick partners residing in that district to appear at a hearing in San Jose, California. The arbitrator granted Jones Day’s request by issuing arbitral summonses.

The case made its way to the Northern District of California, which denied Jones Day’s petition to enforce the arbitrator’s summonses against the two Orrick partners, concluding that it lacked authority to compel such compliance under FAA section 7, which it construed as providing that the district where the arbitrator sits is the only district in which a district court may compel attendance.