Nationwide Arbitration Subpoenas Under the United States Arbitration Act - ARIA - Vol. 25, No. 2 2014

Author(s):

Armand M. Paré Jr.

Page Count:

6 pages

Media Description:

1 PDF Download

Published:

December, 2014

Jurisdictions:

United States

Practice Areas:

FAA

PDF542.46 KB

$40.00

Description:

Originally from American Review of International Arbitration - ARIA

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I. INTRODUCTION

Recent amendments to Federal Rules of Civil Procedure (“FRCP”) 45 allow

for nationwide service of process of subpoenas (Rule 45(b)(2)), delete a former

section requiring that a subpoena be issued “from the court for the district where

the deposition is to be taken” (former Rule 45(a)(2)(B)) and provide for initial

enforcement of the subpoena in the “court for the district where compliance is

required” (Rule 45(g)). An intriguing question is whether these changes might

provide arbitrators operating under the Federal Arbitration Act1 (“FAA”) with

nationwide subpoena power. It is submitted that it is possible that such power

may exist, at least where an arbitration clause or the governing arbitration rules

are amended to provide that arbitrators may, in a special case, “sit” at a location

other than the agreed location for the main arbitration to be heard in order to

obtain documents or hear testimony from a third party.

II. FEDERAL ARBITRATION ACT BACKGROUND

Section 7 of the FAA2 provides that 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 be served in the same manner as subpoenas to appear and
testify before the court; if any person 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 … or punish said person or
persons for contempt …

In the recent past, there have been two problems limiting the operative scope

of this section.

III. REQUIREMENT FOR A HEARING

First, there has been judicial debate as to whether arbitrators have the power
to issue a subpoena for documents alone without a hearing and attendance of a