Subpoenas Under the Federal Arbitration Act - Part 3 Chapter 9 - The Practice of International Litigation - 2nd Edition
Lawrence W. Newman has been a partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of 4 works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
Arbitrations with international aspects in the United States are, as a general rule, governed by the Federal Arbitration Act. With international litigants in mind, this chapter discusses restrictions under current law on the scope of arbitrators’ authority to compel the production of evidence from non-parties under the Federal Arbitration Act, and compares its relevant provisions with other provisions under federal and state law, including 12 U.S.C. § 1782, entitled “Assistance to Foreign and International Tribunals and to Litigants before such Tribunals,” a provision about which we have written before. Finally, the chapter concludes by suggesting that the Federal Arbitration Act might be amended to correct the somewhat anomalous situation.
Scope of Federal Subpoenas in Aid of Arbitration
The Federal Arbitration Act was originally enacted in 1925, and reflects a now well-established strong public policy in favor of arbitration. The Act provides for the enforcement of arbitration provisions in maritime contracts or contracts involving interstate or foreign commerce, for the stay of judicial proceedings pending arbitration, and for judicial confirmation of arbitration awards.
In addition, the Act empowers arbitrators to issue “summonses” requiring witnesses to attend before them, or to produce documents. These summonses are ultimately backed by the contempt power of the local district court. Section 7 of the Federal Arbitration Act provides in part:
The arbitrators . . . may summon in writing any person . . . as a witness and in a proper case to bring with him or them any book, record, document, or paper 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 Sates district court for the district in which such arbitrators, or a majority of them, are sitting may compel the attendance. . . .
However, arbitrators’ summonses are backed only to the extent of the subpoena power of the district court in which they sit. The subpoena power of the federal courts in civil proceedings is generally governed by Rule 45 of the Federal Rules of Civil Procedure, which basically provides that a federal court may subpoena anyone within its state or within 100 miles of the court. Thus, except through two unlikely avenues, discussed below, arbitrators may only compel the attendance of witnesses found within the state of arbitration or within 100 miles of the site of arbitration.