Winning a commercial arbitration often requires obtaining testimony and/or documents from a non-party. Unlike a federal or state court—which permits liberal discovery and allows for the use of subpoenas to obtain non-party pre-trial discovery—there is no enforceable mechanism in an arbitration to compel a non-party to produce discovery. So how can you prove your case/defenses? A recent Second Circuit decision—in which we represented the winning party—shows how successfully to use Section 7 of the Federal Arbitration Act (FAA) to obtain the non-party testimony and documents you need.

The FAA is designed to promote a liberal federal policy favoring arbitration. Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). “It is difficult to overstate the strong federal policy in favor of arbitration,” that courts “have often and emphatically applied.” Arciniaga v. Gen. Motors Corp., 460 F.3d 231, 234 (2d Cir. 2006). Section 7 of the FAA promotes this policy by providing:

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