Arbitration is based on consent. An arbitral tribunal derives its powers from an agreement between the parties. Whilst this grants procedural flexibility, it can pose difficulties if witnesses need to be compelled to attend hearings, or if crucial documents are in the hands of a non-party. Obvious problems exist if a key employee no longer works for a party and cannot be directed to assist, or if a party employed an independent contractor who is unwilling to become involved in the arbitration.
The Arbitration Act 1996 (the “Act”) provides some ways to redress this balance. Two sections of the Act allow the English Court to compel witnesses to give evidence and/or to produce documents for hearings. This power is not just confined to arbitrations with their seat in England. Section 2(3) of the Act provides that these powers can apply to an arbitration with its seat outside England & Wales or Northern Ireland subject to the caveat that:
“the court may refuse to exercise any such power if, in the opinion of the court, the fact that the seat of the arbitration is outside England and Wales or Northern Ireland, or that when designated or determined the seat is likely to be outside England and Wales or Northern Ireland, makes it inappropriate to do so.”
Given London’s position as a global financial and legal hub as well as a home for the world’s elite, it is highly likely that witnesses and documents which may be required for arbitral proceedings may be present in England. These powers are therefore not just relevant to those conducting arbitrations in London. They should be considered by practitioners worldwide.
The full Bryan Cave bulletin can be read here.