{"id":905378,"date":"2026-02-19T16:02:43","date_gmt":"2026-02-19T23:02:43","guid":{"rendered":"https:\/\/www.myconstructionexpert.com\/blog\/?p=905378"},"modified":"2026-02-19T16:02:47","modified_gmt":"2026-02-19T23:02:47","slug":"federal-arbitration-act-dispute-resolution","status":"publish","type":"post","link":"https:\/\/www.myconstructionexpert.com\/blog\/federal-arbitration-act-dispute-resolution\/","title":{"rendered":"Dispute Resolution: Compelling Third-Party Evidence in the United States Through Section 7 of\u00a0the\u00a0Federal Arbitration Act"},"content":{"rendered":"\n

Rachel B. Goldman, Camille Ng, Martin Gusy and Mark R. Wulfe | Bracewell<\/a><\/p>\n\n\n\n

Introduction<\/strong><\/p>\n\n\n\n

Last year marked the 100th anniversary of the Federal Arbitration Act<\/a> (FAA),1<\/a><\/sup>\u00a0the key federal legislation governing arbitrations in the United States. Section 7 of the FAA governs arbitral subpoenas.2<\/a><\/sup>\u00a0This provision authorises arbitrators to \u2018summon 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 book, record, document, or paper which may be deemed material as evidence in the case’.3<\/a><\/sup>\u00a0While this provision applies to both parties and non-parties to an arbitration agreement, the real potential of Section 7 \u2013 as with other provisions authorising judicial assistance for discovery in arbitrations \u2013 lies in compelling documents and testimony from non-parties.<\/p>\n\n\n\n

When consenting to arbitration, parties may bind themselves to procedural matters including agreements on the pre-hearing production of documents and testimony, both of which are standard elements of US-style discovery. In international commercial arbitration, while \u2018expansive US or English-style discovery are generally [considered] inappropriate [ . . . ,] there seem[s] to be “a general consensus, even among practitioners from civil law countries, that some level of production is appropriate”‘.4<\/a><\/sup> In appropriate circumstances, parties may be able to agree on document discovery through specific provisions or the incorporation of sets of rules, such as the IBA Rules on the Taking of Evidence in International Arbitration or even the Prague Rules of the Efficient Conduct of Proceedings in International Arbitration, which take diametrically opposed views to discovery reflecting the common law versus civil law divide.5<\/a><\/sup><\/p>\n\n\n\n

Parties may also authorise arbitral tribunals to enforce their procedural agreements and conduct the arbitration proceedings as they deem fit.6<\/a><\/sup> Equipped with such authorisation, arbitral tribunals may not only order document production but also penalise parties for non-compliance with document production orders, including by drawing adverse inferences or even imposing sanctions or awarding costs. However, while arbitral tribunals may certainly order third parties to produce documents, for jurisdictional reasons, they generally have no means of enforcing compliance. Courts do within the bounds of their jurisdiction and it is the judicial assistance afforded by Section 7 of the FAA that renders this provision potentially useful against third parties.<\/p>\n\n\n\n

This chapter aims to guide practitioners in realising the potential of and utilising Section 7 of the FAA to compel discovery from non-parties to an arbitration. First, it introduces Section 7 of the FAA by juxtaposing it against 28 U.S.C. \u00a7 1782 (Section 1782), another federal provision that until three years ago took centre-stage on third-party discovery in international arbitration. The chapter then analyses Section 7 of the FAA and the extent to which it authorises pre-hearing document discovery. Following that, it addresses the interplay between Section 7, the Federal Rules of Civil Procedure, and the doctrine of personal jurisdiction, which gives rise to potential limitations on Section 7\u2019s availability. Last, the chapter examines the US Court of Appeals for the Ninth Circuit\u2019s 2022 decision in Jones Day v. Orrick, Herington & Sutcliffe, LLP<\/em>,7<\/a><\/sup> which provides an avenue for the more reliable application of Section 7 in international arbitrations. This chapter concludes by summarising the road map to utilise Section 7 in light of the judicial interpretations addressed earlier.<\/p>\n\n\n\n

Section 1782 and Section 7 of the FAA<\/strong><\/p>\n\n\n\n

Summary of Section 1782<\/strong><\/p>\n\n\n\n

Section 1782 was the darling of compelling third-party discovery in international commercial arbitration within at least the US Courts of Appeals for the Fourth and Sixth Circuits \u2013 until it was not. As recently as three years ago, Section 1782 was used in those circuits to obtain US court assistance in aid of document disclosure in international arbitrations. Section 1782 states in relevant part that \u2018[t]he district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation’. Section 1782 also provides that \u2018any interested person\u2019 may request an order from the district court.8<\/a><\/sup> These broad provisions, coupled with the finding of certain federal courts that the term \u2018foreign or international tribunal\u2019 encompassed arbitral tribunals in international arbitrations, made Section 1782 a powerful tool for accessing witness testimony and documents in the United States for arbitrations seated abroad. Notably, under Section 1782, the seat of the arbitration is irrelevant.<\/p>\n\n\n\n

However, resolving a split among federal Circuit Courts of Appeals,9<\/a><\/sup> on 13 June 2022, the US Supreme Court decided ZF Automotive US, Inc. v. Luxshare Ltd.<\/em> and foreclosed Section 1782\u2019s use in international commercial and ad hoc investment arbitrations.10<\/a><\/sup> A consolidated case, ZF Automative<\/em> involved two arbitrations: a private international commercial arbitration conducted under the Arbitration Rules of the German Arbitration Institute (Deutsche Institution f\u00fcr Schiedsgerichtsbarkeit or DIS), as well as AlixPartners, LLP v. Fund for Protection of Investors\u2019 Rights in Foreign States<\/em>, concerning an ad hoc investor-State arbitration pursuant to the Lithuania-Russia BIT conducted under the UNCITRAL Arbitration Rules.11<\/a><\/sup> The US Supreme Court interpreted the \u2018key phrase [of] “foreign and international tribunal\u2019\u201912<\/a><\/sup> and held that \u2018only a governmental or intergovernmental adjudicative body constitutes a “foreign or international tribunal” under \u00a71782. Such bodies are those that exercise governmental authority conferred by one nation or multiple nations.’13<\/a><\/sup> The Court found that neither of the DIS nor the UNCITRAL arbitral tribunals qualified as governmental or intergovernmental adjudicative bodies.<\/p>\n\n\n\n

Just last year, the Second Circuit further narrowed Section 1782\u2019s use in investor-State\/investment arbitration. In Webuild S.P.A. v. WSP USA Inc.,<\/em> the Second Circuit held that an ICSID arbitral tribunal was also not a \u2018foreign or international tribunal\u2019 under Section 1782.14<\/a><\/sup><\/p>\n\n\n\n

Whether these decisions are to be characterised as pro-arbitration because of tasking the arbitral tribunals to compel the production of documents and testimony,15<\/a><\/sup> these US court decisions have largely foreclosed the use of Section 1782 to obtain discovery in international commercial and investment arbitrations,16<\/a><\/sup> and thus warrant a closer look at Section 7 of the FAA. Like Section 1782, Section 7 of the FAA may be a powerful tool to facilitate third-party discovery in international arbitrations \u2013 albeit under different circumstances and in a different way.<\/p>\n\n\n\n

Contrast between Section 7 of the FAA and Section 1782<\/strong><\/p>\n\n\n\n

Section 7 of the FAA is not an outright replacement for Section 1782. As the US Supreme Court recognised in ZF Automotive<\/em>, Section 7 of the FAA is narrower than Section 1782. Section 7 of the FAA is also far from a straightforward provision, as demonstrated below.<\/p>\n\n\n\n

Section 7 of the FAA provides that \u2018[t[he arbitrators selected [. . .], 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 book, record, document, or paper which may be deemed material as evidence in the case’. This arbitral subpoena \u2018shall be served in the same manner as subpoenas to appear and testify before the court’.17<\/a><\/sup><\/p>\n\n\n\n

The US Supreme Court in ZF Automotive<\/em> identified two areas in which Section 7 of the FAA is more restrictive than Section 1782.18<\/a><\/sup> First, under Section 7 of the FAA, only the \u2018arbitrators selected\u2019 or a \u2018majority of them\u2019 may issue the arbitral summons, whereas under Section 1782, any \u2018interested person\u2019 may request judicial assistance.19<\/a><\/sup> And second, while Section 1782 authorises discovery pre-arbitration, Section 7 of the FAA requires that the arbitration already be pending.20<\/a><\/sup><\/p>\n\n\n\n

The questions then remain: what utility does Section 7 of the FAA have for pending international arbitrations and how can Section 7 of the FAA apply? These questions are addressed later in the chapter.<\/p>\n\n\n\n

Section 7 of the FAA<\/strong><\/p>\n\n\n\n

Section 7 of the FAA generally allows pre-hearing discovery in the United States, but federal courts are split in their approaches for obtaining it. And, distinct from the question of what Section 7 of the FAA can deliver is how arbitral subpoenas may be enforced.<\/p>\n\n\n\n

Pre-hearing discovery and the circuit split<\/strong><\/p>\n\n\n\n

Section 7 arguably conditions the production of books, records, documents or papers on a person being called to appear before the arbitrator or arbitrators as a witness, raising the question of whether the provision may be used to obtain discovery outside of a hearing. Arguably, the hearing appearance may serve as a safeguard for a balanced and sensible use of Section 7.<\/p>\n\n\n\n

On this, the federal circuits are split. The two minority positions in the Fourth and Eighth Circuits allow for the use of Section 7 as a means of pre-hearing discovery, without (at least in some circumstances) requiring the witness to appear at a hearing. The majority position in the Second, Third, Ninth and Eleventh Circuits reads Section 7 as requiring a hearing. Importantly, however, such courts read the hearing requirement broadly, also allowing preliminary hearings for the limited purpose of receiving non-party witnesses\u2019 evidence. In this way, Section 7 could allow for \u2018pre-hearing\u2019 discovery in the sense of taking place prior to a hearing on the merits, notwithstanding the provision\u2019s hearing requirement.<\/p>\n\n\n\n

The Eighth Circuit held that \u2018implicit in an arbitration panel\u2019s power to subpoena relevant documents for production at a hearing is the power to order the production of relevant documents for review by a party prior to the hearing’.21<\/a><\/sup> Under this interpretation, Section 7 does not require a hearing at all. The Fourth Circuit requires the showing of \u2018special need or hardship\u2019 \u2013 such as the unavailability of the information sought \u2013 for the waiver of the provision\u2019s hearing requirement.22<\/a><\/sup><\/p>\n\n\n\n

The majority approach, which the Second, Third, Ninth and Eleventh Circuits adopt,23<\/a><\/sup> requires a hearing. According to this position, under Section 7 of the FAA, \u2018[d]ocuments are only discoverable in arbitration when brought before arbitrators by a testifying witness.\u201924<\/a><\/sup> The Third Restatement of the Law \u2013 the US Law of International Commercial Arbitration (the Restatement) also follows this rule.25<\/a><\/sup><\/p>\n\n\n\n

But the required hearing need not be a final merits hearing. Courts have rejected arguments that Section 7 requires document production at a final hearing on the merits, as opposed to an earlier hearing in the case or one specially called to receive for receiving the documents.26<\/a><\/sup> Courts have viewed Section 7\u2019s hearing requirement as a sensible check on open-ended discovery, \u2018forc[ing] the party seeking the non-party discovery \u2013 and the arbitrators authorising it \u2013 to consider whether production is truly necessary’.27<\/a><\/sup> Courts have further noted that \u2018the inconvenience of making a personal appearance may cause the testifying witness to “deliver the documents and waive presence”‘, making a hearing ultimately unnecessary.28<\/a><\/sup><\/p>\n\n\n\n

Consistent with understanding Section 7\u2019s hearing requirement as a beneficial hurdle, most courts have read Section 7 to require an in-person rather than a remote hearing.29<\/a><\/sup> As the Court decisions requiring an in-person hearing mostly predate the pandemic, the effect of covid-19\u2019s normalisation of remote hearings on such requirement, if any, remains a subject of development. At the time of writing, the majority approach is that Section 7 may be utilised for non-party document discovery in an international arbitration, provided that the arbitral summons calls for documents to be produced by the witness at a hearing before at least one of the arbitrators.<\/p>\n\n\n\n

This leaves the issue of where such a hearing must take place, a question that implicates not only Section 7, but also other provisions of the FAA, the Federal Rules of Civil Procedure concerning subpoena enforcement, and the doctrines of subject matter and personal jurisdiction.<\/p>\n\n\n\n

Section 7 enforcement, personal jurisdiction and the hearing location<\/strong><\/p>\n\n\n\n

As previously stated, Section 7 of the FAA\u2019s value derives from the judicial assistance it affords arbitral tribunals in the aspect of non-party document disclosure and witness testimony. An arbitral subpoena is not self-enforcing, and a non-party who disagrees with it may simply refuse to comply.30<\/a><\/sup> Typically, in such a case, the party seeking discovery will bring a judicial action to enforce the subpoena. Limitations on which courts may enforce the subpoena, and under what circumstances they may do so, dictate the location of the required hearing and may limit the Section\u2019s availability.<\/p>\n\n\n\n

Venue under Section 7<\/strong><\/p>\n\n\n\n

Section 7 provides for enforcement as follows:<\/p>\n\n\n\n

\n

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.31<\/a><\/sup><\/p>\n<\/blockquote>\n\n\n\n

The key term is \u2018sitting’. The Restatement states the following:<\/p>\n\n\n\n

\n

Actions to enforce an arbitral subpoena, and impliedly motions to quash it, are according to FAA \u00a7 7 properly brought to \u2018the United States district court for the district in which such arbitrators, or a majority of them, are sitting’. The questions of what constitutes a place of \u2018sitting\u2019 and whether there is only one such place has not been well examined in the case law. Tribunals ordinarily may conduct hearings away from the seat of arbitration and under the Restatement view may do so in order to receive non-party testimony and subpoenaed materials in a manner that comports with the place-of-compliance restrictions noted above.32<\/a><\/sup><\/p>\n<\/blockquote>\n\n\n\n

The Restatement view notwithstanding, most federal courts associate the term \u2018sitting\u2019 with the juridical seat of the arbitration.33<\/a><\/sup> In Rembrandt Vision Techs, LP v. Bausch & Lomb, Inc, for instance, the US District Court for the Northern District of Georgia found that it lacked jurisdiction to enforce a subpoena that a New York-seated arbitral tribunal issued to a Georgia resident, calling for the recipient to give testimony in Georgia. In doing so, the court noted that \u2018[t]he fact that the term includes the words “are sitting” suggests that the place where the arbitrators are sitting is not the location of the hearing where the nonparty was to respond to the Subpoena in the past’.34<\/a><\/sup> The court further noted that \u2018[i]n order to convey the meaning that the district could be multiple districts where the arbitrators choose to have a particular hearing at the time, would require additional words that are not present in the statute’.35<\/a><\/sup> The court concluded that the arbitrators in this case were sitting in New York because the New York office of the American Arbitration Association was administering the arbitration,36<\/a><\/sup> all arbitrators were barred in New York and none were barred in Georgia, and the arbitration had no other connection to Georgia.37<\/a><\/sup><\/p>\n\n\n\n

But the approach of interpreting \u2018sitting\u2019 to refer to the \u2018juridical seat\u2019 of the arbitration is not universal. Of note, in accord with common arbitral practice, in Symetra,<\/em> the Sixth Circuit recently reasoned that \u2018the FAA\u2019s text contains no such restriction\u2019 on the arbitrators\u2019 ability to \u2018sit\u2019 in more than one location.38<\/a><\/sup> Where the final hearing was to be conducted in Houston, Texas, and the arbitration panel declared it would be sitting for a hearing relating to the subpoena in Grand Rapids, Michigan, the Sixth Circuit held it was not improper for the petitioner to bring its enforcement action in the Western District of Michigan.39<\/a><\/sup><\/p>\n\n\n\n

Requiring Section 7 arbitral subpoenas to be enforced at the \u2018juridical seat\u2019 means requiring that a hearing take place in the judicial district encompassing that location. But this interpretation potentially results in an \u2018enforcement gap’, as the subpoenaed witness will in many cases reside elsewhere, making additional requirements under the Federal Rules of Civil Procedure and the doctrine of personal jurisdiction difficult, and sometimes impossible, to satisfy.40<\/a><\/sup><\/p>\n\n\n\n

Federal Rules of Civil Procedure<\/strong><\/p>\n\n\n\n

Rule 45 of the Federal Rules of Civil Procedure (Rule 45) is implicated by Section 7\u2019s provision that an enforcing court may compel attendance or punish parties for contempt \u2018in 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’.41<\/a><\/sup> On the basis of this language, courts have held that their authority to enforce an arbitral subpoena \u2018is coextensive with the court\u2019s authority to enforce one of its own subpoenas’.42<\/a><\/sup> Courts derive this authority from Rule 45, which, in relevant part, provides:<\/p>\n\n\n\n

\n

A subpoena may command a person to attend a trial, hearing, or deposition only as follows:<\/p>\n\n\n\n

(A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or<\/p>\n\n\n\n

(B) within the state where the person resides, is employed, or regularly transacts business in person, if the person<\/p>\n\n\n\n

(i) is a party or a party’s officer; or<\/p>\n\n\n\n

(ii) is commanded to attend a trial and would not incur substantial expense.43<\/a><\/sup><\/p>\n<\/blockquote>\n\n\n\n

Courts have generally concluded that Rule 45(c)\u2019s geographical limits apply to arbitral subpoenas issued under Section 7, meaning an arbitral subpoena cannot require a witness to travel to a hearing that is more than 100 miles from where the witness resides, is employed or regularly transacts business, unless the hearing is to be held within the state where the witness resides, is employed or regularly transacts business and attendance would not cause substantial expense.44<\/a><\/sup><\/p>\n\n\n\n

Thus, following the majority positions taken by the courts discussed above, Rule 45 would preclude the issuance of an enforceable arbitral summons under Section 7 commanding the production of documents from a witness who does not live, work, or conduct business near the arbitral seat.<\/p>\n\n\n\n

Personal jurisdiction<\/strong><\/p>\n\n\n\n

A similar predicament arises when the court embracing the seat of the arbitration lacks personal jurisdiction over the witness. A district court must have personal jurisdiction over a non-party to compel it to comply with a discovery request under Rule 45.45<\/a><\/sup> While the full scope of personal jurisdiction falls beyond the scope of this article, the exercise of personal jurisdiction generally requires a statutory basis and adherence to due process under the US Constitution.46<\/a><\/sup><\/p>\n\n\n\n

A federal statute or the law of the state in which the federal court is located can provide the required statutory basis. Thus, parties may seek to establish personal jurisdiction under the applicable state long-arm statute.47<\/a><\/sup> More directly, however, the statutory basis can be satisfied simply through proper service of the summons, based on the growing consensus that Section 7 of the FAA allows for nationwide service of process.48<\/a><\/sup><\/p>\n\n\n\n

Even for nationwide service, however, the court\u2019s jurisdiction must comport with due process, which requires that the respondent generally have sufficient \u2018minimum contacts\u2019 with the forum. Notably, some courts have concluded that in this context, the relevant \u2018minimum contacts\u2019 concern \u2018contacts with anywhere in the United States,\u2019 rather than the particular judicial district.49<\/a><\/sup><\/p>\n\n\n\n

Thus, as it is by no means guaranteed that the subpoena recipient will be subject to the personal jurisdiction of the district count encompassing the place of arbitration, an enforcement gap may still exist. That was exactly the predicament faced by the petitioner in Orrick<\/em>. This decision, if followed by other courts, provides an important solution to the enforcement gap, and a useful road map for the enforcement of Section 7 subpoenas in international arbitration.<\/p>\n\n\n\n

Jones Day v. Orrick, Herrington & Sutcliffe<\/strong><\/p>\n\n\n\n

Orrick<\/em> concerned an arbitration between the law firm Jones Day and its former partner, a German national, who joined the San Francisco-based law firm, Orrick, Herrington & Sutcliffe, LLP. The arbitrator issued, at Jones Day\u2019s request, a Section 7 subpoena to non-party Orrick, which Jones Day sought to enforce in Washington DC, the arbitral seat. When the court held that it lacked personal jurisdiction over Orrick, whose principal place of business is San Francisco, a revised summons was issued requiring two Orrick partners residing in the Northern District of California to appear at a hearing in San Jose, California. However, when Jones Day sought enforcement there, the district court held that the subpoena could not be enforced in California because the arbitrators were \u2018sitting\u2019 in Washington, DC.50<\/a><\/sup><\/p>\n\n\n\n

The Ninth Circuit reversed, with reasoning that largely resolves the enforcement gap in the case of international arbitrations.<\/p>\n\n\n\n

The court first determined that it had subject matter jurisdiction to enforce the arbitral subpoena under Chapter 2 of the FAA. Section 7 of the FAA is contained within Chapter 1 of the FAA, 9 U.S.C. \u00a7\u00a7 1\u201316, which was enacted in 1925 to \u2018ensure that private arbitration agreements are enforced according to their terms’.51<\/a><\/sup> While the FAA \u2018create[d] a body of federal substantive law establishing and regulating the duty to honor an agreement to arbitrate’, \u2018it d[id] not create any independent federal-question jurisdiction’.52<\/a><\/sup> Thus, a party invoking a provision of Chapter 1 in federal court must first establish a basis for subject matter jurisdiction independent of the FAA itself.53<\/a><\/sup><\/p>\n\n\n\n

Congress separately enacted Chapter 2 of the FAA, 9 U.S.C. \u00a7\u00a7 201\u2013208, \u2018to provide for effective and efficient resolution of international arbitral disputes after the United States entered into the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, June 1958)’, known as the New York Convention.54<\/a><\/sup> Unlike Chapter 1, Chapter 2 includes a jurisdiction provision, FAA Section 203, which provides federal district courts with original jurisdiction over \u2018action[s] or proceeding[s] falling under the Convention’.55<\/a><\/sup><\/p>\n\n\n\n

Orrick<\/em> held that a proceeding \u2018fall[s] under the Convention\u2019 for purposes of Section 203 so long as (1) there is an underlying arbitration agreement or award that falls under the New York Convention and (2) the action or proceeding \u2018relates to that arbitration agreement or award\u2019 \u2013 a standard that was met in that case given the arbitrator\u2019s determination that the evidence sought by the summons may be material to resolving the dispute.56<\/a><\/sup><\/p>\n\n\n\n

While Orrick<\/em> was the first federal court of appeals to hold expressly that Section 203 provides federal district courts with subject matter jurisdiction over an action to enforce a subpoena issued pursuant to Section 7 in an international arbitration, the decision was in line with the views of commentators and the few lower courts to have addressed the issue.57<\/a><\/sup> And the Second Circuit has since cited Orrick<\/em> for the proposition that federal courts have subject-matter jurisdiction to enforce summonses compelling witnesses to appear at an arbitration hearing’.58<\/a><\/sup><\/p>\n\n\n\n

Having concluded that it had subject matter jurisdiction under Section 203, the Ninth Circuit looked to Chapter 2\u2019s venue provision, FAA Section 204, which the court stated \u2018provides a specific venue provision for actions or proceedings authorized by \u00a7 203′.59<\/a><\/sup> Section 204 generally provides that where an arbitration agreement designates a \u2018place of arbitration\u2019 in the United States, an action may be brought in the district embracing that location.60<\/a><\/sup> In Orrick<\/em>, that would have been Washington, DC. But the Ninth Circuit further concluded that Section 204 of the FAA was not an exclusive venue provision, and that it instead supplemented the general federal venue statute, 28 U.S.C. \u00a7 1391.61<\/a><\/sup> Under 28 U.S.C. \u00a7 1391(b), civil actions may be brought in a judicial district in which any defendant resides, if all defendants are residents of the state in which the district is located; a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court\u2019s personal jurisdiction with respect to the action.62<\/a><\/sup> In Orrick<\/em>, the Northern District of California was a proper venue under Section 1391 because it was Orrick\u2019s principal place of business.63<\/a><\/sup><\/p>\n\n\n\n

Noting that the lower court had relied on Section 7\u2019s enforcement language in denying enforcement, the Ninth Circuit stated that the \u2018district court did not consider the specific venue provision applicable here, 9 U.S.C. \u00a7 204′, and that the court \u2018need not resolve the parties\u2019 dispute as to whether [Section 7] provides for venue (or where)\u2019 given its determination that Section 204 was a non-exclusive venue provision that supplements other venue rules.64<\/a><\/sup> Thus, under Orrick\u2019<\/em>s reasoning, parties to international arbitrations may seek enforcement of Section 7 subpoenas irrespective of where the arbitrators \u2018are sitting’.<\/p>\n\n\n\n

Orrick<\/em>, therefore, resolves the enforcement gap that may exist where a Section 7 subpoena seeks documents from a witness at a location distant from the seat of the arbitration, such that Rule 45 would not authorise a court within the district of the arbitral seat to compel compliance and\/or such a court would not have personal jurisdiction over the witness.<\/p>\n\n\n\n

Conclusion<\/strong><\/p>\n\n\n\n

As the above discussion makes clear, employing Section 7 to obtain document discovery and testimony from third parties involves the interplay of various statutory provisions that themselves have been inconsistently interpreted by US courts. Issues such as establishing (and challenging) the materiality or privileged nature of the evidence sought set aside, a road map for navigating Section 7 as a means of document discovery and obtaining testimony in international commercial and investment arbitration includes the following.<\/p>\n\n\n\n

First, in all cases, the subpoena must be issued by the arbitrators or a majority of them. Section 7 does not empower the issuance of a subpoena by counsel for the parties.<\/p>\n\n\n\n

Second, to conform with the majority position, the subpoena must call for the production of documents in connection with the recipient appearing as a witness before an arbitrator. As noted above, as a practical matter, where a witness is inclined to comply, the hearing requirements may be waived.<\/p>\n\n\n\n

Third, with respect to the location of the hearing, the easy case is where the witness is located within the judicial district of the seat of the arbitration. In this circumstance, holding the hearing within that district will comply with Section 7\u2019s \u2018sitting\u2019 requirement, however interpreted, as well as the demands of Rule 45 and personal jurisdiction. Where, however, the witness resides at a distant location, there exists the risk of falling into the enforcement gap created by courts\u2019 interpretations of Section 7 and Rule 45. Here, the case law in the relevant jurisdictions at issue takes on particular importance. All things being equal, the most prudent approach given the current state of the case law would appear to be for the subpoena to call for the witnesses\u2019 appearance at a hearing within the judicial district where the witness resides or is employed. This approach aims for compliance with the territorial restrictions of Rule 45 and the requirements of personal jurisdiction. As to further satisfying the venue requirement, Orrick<\/em> supports that venue may be had regardless of the arbitral seat pursuant to FAA Section 204, and, if that fails, the Sixth Circuit\u2019s decision in Symetra<\/em> has given some life to the more flexible approach to Section 7\u2019s language.<\/p>\n\n\n\n

\n\n\n\n

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net<\/a>.<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

Rachel B. Goldman, Camille Ng, Martin Gusy and Mark R. Wulfe | Bracewell Introduction Last year marked the 100th anniversary of the Federal Arbitration Act (FAA),1\u00a0the key federal legislation governing arbitrations in the United States. Section 7 of the FAA governs arbitral subpoenas.2\u00a0This provision authorises arbitrators to \u2018summon in writing any person to attend before… Continue reading Dispute Resolution: Compelling Third-Party Evidence in the United States Through Section 7 of\u00a0the\u00a0Federal Arbitration Act<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","enabled":false},"version":2}},"categories":[41],"tags":[9895,42,208],"class_list":["post-905378","post","type-post","status-publish","format-standard","hentry","category-arbitration","tag-advise-consult","tag-arbitration-2","tag-federal-arbitration-act","entry"],"jetpack_publicize_connections":[],"yoast_head":"\nDispute Resolution: Compelling Third-Party Evidence in the United States Through Section 7 of\u00a0the\u00a0Federal Arbitration Act - 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