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Enforcing international arbitral subpoenas in the United States

Enforcing international arbitral subpoenas in the United States The jurisprudence of the United States Supreme Court coupled with restrictive domestic arbitration legislation has created gaps in the enforcement of international arbitral subpoenas in the United States. These enforcement gaps restrict access to evidence by international arbitral tribunals seated in the United States and block such access entirely for foreign-seated international arbitral tribunals. These gaps also make the United States an outlier among other major international arbitration jurisdictions and conflicts with international arbitral practice. However, the recent decision of the United States Court of Appeals for the Ninth Circuit in Day v Orrick, Herrington & Sutcliffe is a first step toward filling these enforcement gaps. This article sets out the legislative framework governing the enforcement of international arbitral subpoenas in the United States, introduces the existing gaps in such enforcement, demonstrates how these gaps fly in the face of international arbitral practice and explains how the Ninth Circuit has now filled at least some of them. If followed by other federal courts, Day v Orrick may pave the way for the enforcement of subpoenas issued by international arbitral tribunals seated both within and outside the United States, and bring the United States back in line with international arbitral practice. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Arbitration International Oxford University Press

Enforcing international arbitral subpoenas in the United States

Arbitration International , Volume 39 (1): 20 – Mar 16, 2023

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Publisher
Oxford University Press
Copyright
© The Author(s) 2023. Published by Oxford University Press on behalf of the London Court of International Arbitration. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com
ISSN
0957-0411
eISSN
1875-8398
DOI
10.1093/arbint/aiad008
Publisher site
See Article on Publisher Site

Abstract

The jurisprudence of the United States Supreme Court coupled with restrictive domestic arbitration legislation has created gaps in the enforcement of international arbitral subpoenas in the United States. These enforcement gaps restrict access to evidence by international arbitral tribunals seated in the United States and block such access entirely for foreign-seated international arbitral tribunals. These gaps also make the United States an outlier among other major international arbitration jurisdictions and conflicts with international arbitral practice. However, the recent decision of the United States Court of Appeals for the Ninth Circuit in Day v Orrick, Herrington & Sutcliffe is a first step toward filling these enforcement gaps. This article sets out the legislative framework governing the enforcement of international arbitral subpoenas in the United States, introduces the existing gaps in such enforcement, demonstrates how these gaps fly in the face of international arbitral practice and explains how the Ninth Circuit has now filled at least some of them. If followed by other federal courts, Day v Orrick may pave the way for the enforcement of subpoenas issued by international arbitral tribunals seated both within and outside the United States, and bring the United States back in line with international arbitral practice.

Journal

Arbitration InternationalOxford University Press

Published: Mar 16, 2023

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