Evidence from third parties is often difficult to obtain in the arbitration context, given that arbitral proceedings typically bind only the arbitration parties. The law chosen by the parties to apply to the arbitral procedure—or lex arbitri—may itself permit third party disclosure in some circumstances.
In the United States, section 7 of the Federal Arbitration Act (“FAA”) authorizes a tribunal in an arbitration seated in the United States to order a non-party to testify at a hearing, which testimony can be compelled by the relevant district court. Similarly, in England and Wales, s.43 of the English Arbitration Act 1996 (the “EAA”) allows English courts (with the permission of the tribunal or the agreement of the other parties to the arbitration) to issue a witness summons ordering the attendance of the witness before the tribunal in order to give oral testimony, or even to produce documents or other material evidence, where a witness is in the United Kingdom and the arbitration is being conducted in England and Wales.
While both US and English courts recognize some ability to seek witness testimony in aid of the arbitral process seated within their jurisdiction, a more controversial question has occupied these courts with respect to efforts to obtain evidence in aid of foreign proceedings. In the United States, 28 U.S.C. §1782 is a federal statute that allows parties to a legal proceeding outside of the United States to apply to a US federal court for the purpose of obtaining evidence. If the application is granted, this evidence can be used in the proceeding outside of the United States. Parties to arbitrations conducted outside of the United States have increasingly attempted to use Section 1782 to obtain evidence from third parties, which would otherwise be unobtainable in a typical arbitration. This has now come to an end in the US, while the English courts have, in effect, opened the door to non-party depositions.
