
Obtaining subpoenas against third parties in aid of arbitration in England
The English courts have a long history of supporting arbitration proceedings, including in securing attendance of witnesses and production of witness evidence both from parties and non-parties to the arbitration.
Under Sections 43 and 44 of the Arbitration Act 1996, the English courts can compel the attendance of witnesses and production of witness evidence. In this article, we discuss the extent and circumstances in which the English courts can use these powers.
Attendance of witnesses
Section 43 enables a party in English arbitrations to avail itself of the same court powers available in English litigation in respect of compelling the attendance of witnesses and production of their evidence. Those court powers are provided for by Civil Procedure Rule Part 34.
Key points to note in relation to this power are that:
- section 43 is a mandatory section of the Arbitration Act 1996, so the parties cannot agree to exclude it.
- it only applies to attendance of witnesses and the production of documents/evidence before the relevant arbitral Tribunal (Section 43(1)), and so is not relevant to a pre-hearing deposition;
- it is only permitted if the Tribunal gives permission, or the parties to the arbitration agree to it (Section 43(2)), which the court will require to be confirmed in writing. The Tribunal is likely to give permission for a party to apply for a summons from the court if it considers the witness likely to be important to fairly deciding the outcome of the arbitration (the court will then make a final decision on this when deciding whether to grant the witness summons);
- the relevant witness must be in the UK (Section 43(2)(a)); and
- section 43 is a mandatory section of the Arbitration Act 1996, so the parties cannot agree to exclude it.
Taking of witness evidence
Section 44(2)(a) enables the court to order the taking of witness evidence, and section 44(2)(b) enables the court to make orders as to the preservation of evidence.
Unlike section 43, section 44(2)(a) can extend to foreign-based witnesses. It may also allow parties to a foreign arbitration to obtain witness evidence from a witness based in England.
- Key points to note in relation to these powers are as follows1:
Section 44 is not a mandatory provision of the Arbitration Act 1996, so parties can agree to exclude it (either expressly or impliedly); - the power in section 44(2)(a) extends to third parties (i.e., it can require non-parties to the arbitration to give evidence). The current position, based on recent case law, is that the power of preservation of evidence is unlikely to extend to third parties. However, the recent Law Commission Review of the Arbitration Act 1996 proposes that all powers under section 44 should extend to third parties; this point is likely to be incorporated in the new Arbitration Act, when passed;
- these powers can extend to foreign arbitrations, where the relevant witnesses or the relevant evidence are in England;
- section 44(3) empowers the court to make an order, provided that there is an urgent need to do so, for the preservation of evidence directly upon an application to it from a party to the arbitration, i.e. without the permission of the Tribunal. However, if the need for the power is not urgent, or it relates to the taking of witness evidence, then the Tribunal’s permission or the other party’s agreement is needed; and
- the powers under section 44 will only be available if the relevant Tribunal or arbitral institution does not already have the power to itself grant the relief sought.
Given the above, it is clear that the English courts will support arbitration proceedings by acting to secure non-party evidence and witness attendance. However, there are also important restrictions and points to be considered regarding the use and availability of these powers.
Footnote
- Note that Section 44 is one of the more complex sections of the Arbitration Act 1996, and so a more detailed consideration of this section is advised where a party contemplates its use