Chapter Nine: Summoning Nonparty Witnesses - CCA Guide to Best Practices in Commercial Arbitration - Fourth Edition
Editor John (Jay) McCauley is an arbitrator, mediator, and arbitration consultant. He is a Fellow of the Chartered Institute of Arbitrators (FCIArb) and of the College of Commercial Arbitrators. He is an honors graduate of Harvard Law School and a former partner of a large, international law firm, where he litigated a broad range of matters, including security fraud class actions, corporate governance, insurance and reinsurance coverage, real property, construction, business torts, intellectual property, healthcare, and employment. He has taught arbitration law as an Adjunct Professor in several law schools, including Pepperdine, Loyola, Creighton, and University of Missouri–Kansas City, and has made CLE presentations on ADR topics throughout the world, including, most recently, at the USC/JAMS Advanced Arbitration Institute, and at training programs sponsored by the AAA concentrating on more challenging topics such as arbitrability and jurisdiction, federal preemption, the power to summon nonparties, the preclusive effect of arbitral awards, the role of law in arbitral deliberations, and presentation of damages in the arbitral forum.
Mr. McCauley has been continuously listed for the past nine years as a California Super Lawyer, and for the past eight years, he has been included in Best Lawyers in America in the field of ADR. He has been a commercial arbitrator on the national roster of the AAA since 1998, where he serves on the Large, Complex Case; Commercial; Real Property and Construction; Employment; Healthcare; and Class Action Panels, as well as on the roster of the ICDR. He is also on the roster of neutrals for Judicate West and on the “senior arbitrators” panel for USA&M. In the past decade, he has been appointed to serve as an arbitrator on more than 180 significant matters, including multiple major matters ranging in value from $10 million to more than $100 million
John M. Barkett, Miami, Florida
George Gluck, New York, New York
Marc J. Goldstein, New York, New York
John R. Holsinger, Hackensack, New Jersey
I. THE POWER TO SUMMON NONPARTIES
Before exercising their power to summon nonparties, arbitrators should assess what arbitration law applies and what it permits.
Arbitrators have the power to summon nonparties to testify at the evidentiary hearing and in some circumstances, to provide discovery. That power is unique in that although its existence is normally acknowledged in the governing rules of arbitral institutions, its source is found in the applicable federal or state arbitration statute.
Parties to an arbitration proceeding may not be able to efficiently prove their case without summoning third-party witnesses to testify and/or deliver relevant and material documentary evidence. The parties cannot simply confer on the arbitrators the authority to obtain evidence from nonparties—there is nothing in the nature of an arbitration agreement that permits the contracting parties to impose such duties on nonparties. The FAA and virtually all state arbitration statutes thus grant to the arbitrators the power to require nonparties to provide testimonial and documentary evidence relevant to the parties’ dispute. The source of such power under the FAA is Section 7, which provides as follows:
The arbitrators . . . 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 . . . document . . . , which may be deemed material as evidence in the case. . . . Said summons shall issue in the name of the arbitrator or arbitrators, or a majority of them, and shall be signed by the arbitrators, or a majority of them, and shall be directed to the said person and shall be served in the same manner as subpoenas to appear and testify before the court; if any person or persons 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 before said arbitrator or arbitrators, or punish said person or persons for contempt in the same manner provided by law for securing the attendance of witnesses or their punishment for neglect or refusal to attend in the courts of the United States.