Originally from The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration, Fifth Edition

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I.            THE POWER TO SUMMON NON-PARTIES

Arbitrators have the power under the Federal Arbitration Act (“FAA”) and applicable state arbitration statutes to summon non-parties to testify at an evidentiary hearing, and under many state statutes to require non-parties to provide pre-hearing discovery. The existence of these powers may be acknowledged in the governing rules of arbitral institutions; e.g., AAA Rule R-35(d). However, their source is found in the FAA or an applicable state arbitration statute.

The source of such power under the FAA is Section 7, which provides:

The arbitrators … or a majority of them 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.

State arbitration acts generally differ significantly from the FAA and often from each other. This chapter refers to certain state acts to highlight some of the differences between federal and state law with respect to summoning or subpoenaing non-party witnesses. State arbitration statutes typically use the word subpoena, a synonym for the word summons. An inventory of all state arbitral subpoena law in the fifty states is beyond the scope of this chapter. Arbitrators appointed to cases governed by a state arbitration act must familiarize themselves with the provisions of that act.

Arbitrators will be called upon to determine the scope of their statutory powers whenever any of the following questions arise:

1.           Who may summon the witness: party counsel, an administering institution, or the arbitrator?

2.           May a non-party be summoned for discovery as well as for an evidentiary hearing?

3.           Does the summoning power extend to a non-party residing outside of the state or federal judicial district in which the seat (or locale) of the arbitration is situated?

4.           What should the summons state about the place and method for obtaining evidence from the non-party witness?

5.           What should the summons state about which court may enforce the summons in the event of noncompliance?

6.           What should the summons state about the forum (arbitral tribunal or court) in which the non-party witness should raise objections to the subpoena?

These questions implicate a variety of generic, yet complex and often unresolved, arbitration law and federal preemption issues when arbitrating parties seek to have the arbitrators issue non-party subpoenas. The discussion below addresses general considerations surrounding these questions, even though an in-depth, jurisdiction specific treatment is beyond the scope of this chapter.