Originally from The American Review of International Arbitration (ARIA)

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Table of Contents

Introduction and Model Summons
Annotation A: Denomination as "Witness Summons"
Annotation B: Natural Person as Witness Summons Recipient
Annotation C: Location of the Witness Nationwide Service
Annotation D: Who May Issue a Subpoena
Annotation E: Viability of Pre-Hearing Discovery Subpoenas
Annotation F-1: Place of Witness Hearing and Venue for Enforcement
Annotation F-2: Witness Hearings by Video Link
Annotation G: Scope of "Duces Tecum" Witness Summons
Annotation H: Subject-Matter Jurisdiction to Enforce Arbitral Witness Summons
Annotatoin I: Proper Setting for Witness to Raise Objections
Annotation J: Arbitral Subpoena Based on FRCP 30(b)(6)
Annotation K: Arbitral Role in Deciding Enforceability of Subpoenas
Annotation L: Procedure in Regard to Arbitral Subpoenas Governed by FAA Section 7
Appendix 1:  Model Summons Without Annotations
Appendix 2: Topical Guide to Case Law

Introduction and Model Summons

This annotated model federal arbitration witness summons (so titled because the Federal Arbitration Act (“FAA”) uses the term “summon” rather than “subpoena” in Section 7) brings 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.  A major impetus for this project was the amendment of Rule 45 of the Federal Rules of Civil Procedure in December 2013, which in relevant part provided for nationwide service of a federal judicial subpoena. By implication, a federal arbitral witness summons, which per FAA Section 7 is to be served in the same manner as a federal judicial subpoena, now may be served nationwide. The consequences are likely to be (i) more extensive proposed and actual use of arbitral subpoenas than was the case when an arbitrator could compel attendance only of a witness found within 100 miles of the place of arbitration, and (ii) a greater frequency of litigation concerning the witness’s duty of compliance.

The structure of this document, as the Table of Contents indicates, is to provide a Model Summons and a series of annotations that discuss applicable law and/or issues of practice and policy. The annotations are keyed to aspects of the Model Summons by footnotes (or hyperlinks) in the Model Summons, so the reader can readily refer to the analysis that underlies the various components of the Model Summons.

2024 UPDATE: The Model Summons and annotations have been updated with comments and case law through 2023 to identify areas of significant evolution or change in the applicable law since this report was issued in 2015 (the “2015 Report”). We have not sought to include systematically cases from 2015 through 2023 in areas of the 2015 Report where the legal landscape has not materially changed.