Although international arbitration commercial proceedings often deal with evidence emanating from disputes between two contracting parties, they may also concern information in the form of documents or testimony from third parties. Although third parties may cooperate by providing requested information, some may not, and may require the force of a subpoena. Until a recent decision of the U.S. Supreme Court, it was sometimes possible, depending the federal circuit in which the target of the subpoena was located, for "interested persons" in commercial arbitrations outside the United States to make use of federal court discovery tools pursuant to 28 U.S.C. §1782. ZF Automotive US v. Luxshare Ltd., ___ S. Ct___ (June 13, 2022).

For arbitrations in the United States, however, the road to obtaining testimonial and documentary evidence from unwilling third-party witnesses runs through §7 of the Federal Arbitration Act (FAA) and Rule 45 of the Federal Rules of Civil Procedure concerning subpoenas. As amended in 2013, Rule 45 permits nationwide service of court subpoenas. Since such subpoenas may not be enforced nationally, but only by courts where unwilling witnesses are located, problems have arisen when an arbitration is taking place in one part of the country and the witness is located in a distant part.

Such a situation arose in Jones Day v. Orrick, Herrington & Sutcliffe, No. 21-16642, (9th Cir. Aug. 1, 2022), which involved a dispute arising out of the departure from Jones Day of a partner in its Paris office. Under the Jones Day partnership agreement, such disputes were to be resolved through arbitration in Washington, D.C. In June 2020, Jones Day commenced an arbitration against the departed partner and thereafter sought testimony and documents from Orrick, of which the departing partner had become a member. In the course of the arbitration, the tribunal issued, at the request of Jones Day, a summons (the term used in the FAA for subpoenas) requiring Orrick to appear at a virtual hearing and produce certain documents. Thereafter, upon the failure of Orrick to comply, Jones Day petitioned the district court for the District of Columbia to enforce the subpoena. Orrick responded by moving to dismiss the process. Following further submissions, the district court issued an order on May 14, 2021 denying the petition and granting Orrick's motion to dismiss.