A Model Federal Arbitration Summons to Testify and Present Documentary Evidence at an Arbitration Hearing

SUMMARY

The Committee on International Commercial Disputes and the Arbitration Committee prepared a model federal arbitration summons, with extensive annotations, for the purpose of testifying and presenting documentary evidence at an arbitration hearing. The report brings together, in one resource, guidance on law and practice in regard to the issuance by arbitrators of compulsory process for evidence to be obtained from non-party witnesses. A major impetus for this project was the amendment of Rule 45 of the Federal Rules of Civil Procedure in December 2013, which in relevant part provided for nationwide service of a federal judicial subpoena.

2024 UPDATE: The Model Summons and annotations have been updated with comments and case law through 2023 to identify areas of significant evolution or change in the applicable law since this report was issued in 2015 (the “2015 Report”). Cases from 2015 through 2023 in areas of the 2015 Report where the legal landscape has not materially changed have not been systematically added.

Originally issued May 2015; Reissued March 2024.

REPORT

Introduction and Model Summons

This annotated model federal arbitration witness summons (so titled because the Federal Arbitration Act (“FAA”) uses the term “summon” rather than “subpoena” in Section 7) brings together in one resource guidance on law and practice in regard to the issuance by arbitrators of compulsory process for evidence to be obtained from non-party witnesses.¹ A major impetus for this project was the amendment of Rule 45 of the Federal Rules of Civil Procedure in December 2013, which in relevant part provided for nationwide service of a federal judicial subpoena. By implication, a federal arbitral witness summons, which per FAA Section 7 is to be served in the same manner as a federal judicial subpoena, now may be served nationwide. The consequences are likely to be (i) more extensive proposed and actual use of arbitral subpoenas than was the case when an arbitrator could compel attendance only of a witness found within 100 miles of the place of arbitration, and (ii) a greater frequency of litigation concerning the witness’s duty of compliance.

The structure of this document, as the Table of Contents indicates, is to provide a Model Summons and a series of annotations that discuss applicable law and/or issues of practice and policy. The annotations are keyed to aspects of the Model Summons by footnotes (or hyperlinks) in the Model Summons, so the reader can readily refer to the analysis that underlies the various components of the Model Summons.

2024 UPDATE: The Model Summons and annotations have been updated with comments and case law through 2023 to identify areas of significant evolution or change in the applicable law since this report was issued in 2015 (the “2015 Report”). We have not sought to include systematically cases from 2015 through 2023 in areas of the 2015 Report where the legal landscape has not materially changed.

Click “Download PDF” to access the full reissued report.