Originally from Pro-Arbitration Revisited: A Tribute to Professor George Bermann from his Students Over the Years
In his article, What Does it Mean to Be Pro-Arbitration?, Professor Bermann writes that it behooves the arbitration community “to think more deeply than it customarily does about what it means to be pro-arbitration,” and that “pursuing a pro-arbitration path, in one sense of the term, may operate at cross-purposes with what may legitimately be considered as pro-arbitration in one or more other senses of the term.” Judge Rakoff’s decision in Broumand v. Joseph shows that a ruling that certain arbitrators have criticized as anti-arbitration, because it limits their authority to hear from third parties, actually promotes the goals of rendering arbitration more distinct and economical than U.S.-style litigation [Broumand v. Joseph, 522 F. Supp. 3d 8 (S.D.N.Y. 2021)].
In past arbitrations seated in the United States, arbitrators would frequently issue subpoenas to third parties for documents or testimony. The power to compel discovery from non-parties is set forth in Section 7 of the Federal Arbitration Act (FAA), which provides in relevant part that “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 any book record, document, or paper which may be deemed material as evidence in the case.”