Originally from The American Review of International Arbitration (ARIA)

PREVIEW PAGE

In 2015, ARIA published a report entitled, “A Model Federal Arbitration Summons to Testify and Present Documentary Evidence at an Arbitration Hearing” prepared by the International Commercial Disputes Committee and the Arbitration Committee of the New York City Bar Association.  The City Bar’s International Commercial Disputes and Arbitration Committees are comprised of leading New York City-based practitioners, arbitrators, academics, and judges with extensive practical experience in domestic and international arbitration. Their Report provided a Model Summons annotated to “bring[] together in one resource guidance on law and practice in regard to the issuance by arbitrators of compulsory process for evidence to be obtained from non-party witnesses.”  That annotated Model Summons proved to be a valuable resource to arbitrators, counsel, courts and commentators alike in navigating the often byzantine legal and practical issues presented by arbitrator-issued summons to compel non-parties to the arbitration agreement and proceedings to produce documentary and testimonial evidence for use in an arbitration.

Indeed, since 2015, many arbitral tribunals have deployed the Model Summons as a tool to guide parties in preparing arbitral subpoenas on terms suitable for enforcement, if required, in U.S. district courts. And commentators, too, have sung its praises.  Prominent among the most important vexing issues addressed in the 2015 Model Summons Report was whether Section 7 of the Federal Arbitration Act (“FAA”) permits enforcement of an arbitral subpoena, issued by an arbitral tribunal legally seated in one U.S. location, that purports to order a witness residing at a considerable distance from the arbitral seat to appear before one or more of the arbitrators for an evidentiary hearing at a location in the witness’s community. The 2015 Report concluded this is how Section 7 should be understood, while noting discord on the issue in the case law.

A 2022 decision of the U.S. Court of Appeals for the Ninth Circuit, Jones Day v. Orrick, Herrington & Sutcliffe, LLP, agreed with the 2015 Model Summons Report’s conclusion on this important practical issue, citing the Model Summons Report for support.   That decision served as inspiration to the City Bar Committees that drafted the original 2015 Report to update their work to provide new sub-sections that treat the evolution in the case law on this and other aspects of issuing and enforcing arbitral subpoenas under the FAA. ARIA is pleased to publish in this issue the 2024 Updated Report of the 2015 Model Summons Report.