Parties in an international arbitration who seek pre-hearing discovery from a non-party face a maze of legal considerations that limit the scope of such discovery and make the likelihood of success uncertain. Parties to arbitrations pending in the United States who seek pre-hearing discovery from a foreign non-party initially face a patchwork of judicial interpretations of the Federal Arbitration Act (FAA), with the added complexity of enforcing an arbitral or court order in the non-party’s home jurisdiction. In the reverse situation, parties to an arbitration pending outside the United States are not afforded much more certainty in how U.S. courts will rule on an order from a foreign arbitration for pre-hearing discovery from a U.S. non-party.
Both interstate and international arbitrations in the United States are governed by the FAA,1 which provides in Section 7, relevant to discovery, that “arbitrators…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.”2
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