Mr. Harris is a partner in the Litigation & Dispute Resolution Group at Mayer Brown LLP in Chicago. He has represented clients in domestic and international arbitrations and other forms of dispute resolution. He also has a varied litigation practice. Prior to joining the firm, he was a law clerk for the Hon. David D. Dowd Jr., U. S. District Court, Northern District of Ohio.
This article examines three issues pertinent to the enforcement of arbitral subpoenas under FAA § 7:
(1) Does the nature and unique language of § 7 vest federal courts with federal question jurisdiction?
(2) Can a § 7 action commenced in state court be removed to federal court?
(3) Can a state court dismiss a § 7 action on the ground that federal courts have exclusive jurisdiction?
The weight of federal judicial authority favors the view that the plain language of Section 7 of the Federal Arbitration Act (FAA) does not authorize arbitrators to issue third-party subpoenas for pre-hearing discovery. The rules of many alternative dispute resolution services, however, do not expressly prohibit such subpoenas. Thus, arbitrators regularly issue them, notwithstanding recent federal court decisions refusing to enforce them. Instead, parties are optimistically initiating enforcement proceedings in state courts, hoping to avoid this federal court precedent.