Given the largely interstate and cross-border setting where maritime commerce takes place, maritime arbitration in the United States often requires the solicitation of evidence from third parties many of whom may not be present in the jurisdiction where the arbitrators are empaneled. Yet, these parties often are unwilling to accommodate such requests voluntarily, leading the parties to turn to the arbitration tribunal for assistance, which may be available by way of an arbitral subpoena. However, the tribunal’s subpoena power is a creature of statute that comes with limitations, and can be subject to jurisdictional pitfalls. Although it sometimes is considered to be a pre-hearing discovery device, or is treated that way as a matter of practicality, the use of an arbitration subpoena can be complicated because the weight of legal authority dictates its use is reserved to arbitral hearings. Consequently, care must be taken in both seeking a subpoena and attempting to enforce it.
The Federal Arbitration Act (“FAA”) was enacted by Congress “to replace judicial indisposition to arbitration with a ‘national policy favoring [it] and plac[ing] arbitration agreements on equal footing with other contracts.’” It “facilitates private dispute resolution by making arbitration agreements in maritime transactions and in contracts involving interstate commerce presumptively ‘valid, irrevocable, and enforceable."