For the second time in four years, the U.S. Supreme Court has declined to resolve an arbitration-related issue that state and federal courts have been wrestling with over the last decade:  whether the Federal Arbitration Act (“FAA”) precludes courts from invoking public policy as a ground for refusing to enforce arbitration awards.  While public policy

In our recent post, we have discussed the split in the federal appeals courts over whether a private international arbitration constitutes a “foreign or international tribunal” within the meaning of 28 U.S.C. § 1782(a), which authorizes U.S. district courts to provide assistance to foreign or international tribunals by ordering discovery of persons in the district.

On September 22, 2020, in Servotronics, Inc. v. Rolls-Royce PLC et al., No 19-1847, the U.S. Court of Appeals for the Seventh Circuit joined the Second and Fifth Circuits in holding that 28 USC § 1782(a) does not apply to private international arbitration.  As we have previously discussed, the Sixth and Fourth Circuits both recently ruled that section 1782 may be invoked to seek discovery in aid of private foreign or international commercial arbitrations. 
Continue Reading The Seventh Circuit Joins the Second and Fifth Circuits in Holding That 28 USC § 1782(a) Does Not Apply to Private International Arbitration

In these series of posts, we discuss the differences that have emerged in rulings by federal appeals courts in the United States Circuits on certain issues that may affect the ability of a party in an international arbitration to obtain evidence from non-parties to the arbitration.

Arbitrator’s Power To Order Pre-Hearing Document Production Or Testimony From Non-Parties

In Part I of our post on the Circuit Courts split over discovery matters in international arbitration, we have discussed the Courts’ different views on whether a private international arbitration constitutes a “foreign or international tribunal” within the meaning of section 1782. The federal Courts of Appeals do not agree on another discovery matter that relates to obtaining evidence from non-parties in arbitration—including international arbitration—with the seat in the United States.  There is a Circuit split on whether an arbitrator may compel pre-hearing document production or testimony from non-parties pursuant to Section 7 of the Federal Arbitration Act (“FAA”), which applies to any arbitration in the United States involving interstate or international commerce.

The Second Circuit, Third Circuit (which includes Delaware, New Jersey, Pennsylvania), and Ninth Circuit (which includes Arizona, Alaska, California, and Hawaii) have ruled that an arbitrator does not have power to compel pre-hearing discovery of documents and testimony pursuant to the FAA, and can compel such discovery only for an arbitration hearing.


Continue Reading U.S. Circuit Courts Split Over Issues Concerning the Ability To Obtain Evidence From Non-Parties In International Arbitration, Part II