THIRD-PARTY DISCOVERY IN US ARBITRATION
A considerable number of cross-border transactions involving European and non-US parties are governed by various US state laws, the most prominent of which are New York, Delaware and California law. Those agreements frequently also provide for arbitration in US venues, including New York and California. Depending on the parties, industry and transaction in question, those choices are often sensible. What is less often appreciated is that US arbitration carries a discovery framework radically different from what European practitioners expect. One such idiosyncrasy concerns evidence that lies with people who are not parties to the dispute and who have since left the businesses involved.
The statutory architecture
The working assumption of non-US parties is that US-style discovery permeates all contentious matters, but this is not the case. The Federal Arbitration Act (FAA) provides the foundational framework for domestic commercial arbitration in the US. A statute enacted in 1925, it was designed to enforce arbitration agreements and confirm awards, not to replicate the procedural architecture of federal court litigation. Nowhere is that more apparent than in its treatment of discovery.
The FAA contains no general provision for pre-hearing discovery between the parties. Its sole evidence-gathering mechanism is found in section 7, which provides 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”. If a summoned person refuses to comply, the district court in which the arbitrators sit may compel attendance and punish non-compliance by contempt.
Jul-Sep 2026 issue
Sterlington PLLC