International Arbitration: Bringing non-parties to the party

Our series focused on witness evidence considers the challenges encountered by practitioners across a range of different dispute resolution specialties while preparing evidence. In this blog Francesca Parker considers the circumstances when parties to an arbitration can apply to the Courts of England & Wales to compel non-parties to provide documentary or oral evidence to the arbitration proceedings.

It is often the case that a person who is not a party to an arbitration nevertheless possesses evidence that is critical to the determination of that arbitration.

Arbitral tribunals generally do not have the power to compel such non-parties either to disclose documents to the arbitration record or to give oral testimony at an arbitration hearing. This is because the tribunal’s jurisdiction stems from an agreement to arbitrate that has been entered into by the parties only.

However, parties to an arbitration can apply to the Courts of England & Wales (the “Court”) to compel non-parties to provide documentary or oral evidence to the arbitration proceedings where certain conditions are met. This article considers the circumstances when the Court will exercise this power.

Obtaining evidence from witnesses located in the United Kingdom

Section 43 of the Arbitration Act 1996 (the “Act”) entitles a party to arbitral proceedings to apply to the Court to “secure the attendance before the tribunal of a witness in order to give oral testimony or to produce documents or other material evidence”. This is a mandatory provision and so it cannot be excluded or amended by parties to an arbitration agreement.

There are three conditions that must be satisfied before the Court will compel the provision of documentary or oral evidence at an arbitration hearing pursuant to section 43 of the Act.

First, the non-party witness possessing the evidence in question must be present in the United Kingdom, and the Court may only order the non-party to attend a hearing that is being conducted in England, Wales, or Northern Ireland. This means that section 43 of the Act is typically invoked in respect of arbitrations where the arbitral seat is within the jurisdiction; however, it can also be invoked if the seat is located elsewhere, but the hearing nevertheless takes place within the jurisdiction (seat and venue of hearing being distinct concepts) – which may be particularly useful if the courts of the overseas seat will not intervene in this manner (either at all or with the required efficiency). In this latter scenario, the Court will have to be satisfied that the fact that the seat is located overseas does not make it “inappropriate” for it to exercise the powers conferred on it by section 43 of the Act. When assessing whether the grant of an application would be appropriate, the Court will have regard to the extent and likelihood of the inconvenience to the non-party witness in question (Commerce and Industry Insurance Co of Canada v Lloyd’s Underwriters [2002] 1 Lloyds Rep 219).

Second, the applicant must either have obtained the agreement of the other party to the arbitration, or the permission of the tribunal, for the Court to exercise this power. Realistically, permission of the tribunal is likely to be the more attainable method of clearing this hurdle in adversarial proceedings – however, the tribunal should grant such permission in circumstances where it accepts that it is unable to compel the witness itself.

Third, the Court will not permit fishing expeditions for ill-defined, broad categories of documents, or for documents lacking relevance to the dispute that is the subject of the arbitration. Document requests must be precise, identifiable, and material to the dispute.   

If these conditions are met, the Court will issue a summons on the non-party witness which, if not complied with, may leave the witness in contempt of Court.

Obtaining evidence from witnesses located outside the United Kingdom

Section 44(2)(a)-(b) of the Act similarly empowers the Court to order a non-party witness to provide documentary evidence to arbitration proceedings, or to preserve evidence relevant to the arbitration. This is a non-mandatory provision, meaning parties can contract out of its effect (typically, this would be in their arbitration agreement or an agreed provision of the procedural order).

Unlike section 43 of the Act, there is no requirement under section 44 of the Act for the non-party witness to be present in the United Kingdom.

The Court may also exercise its power under section 44 of the Act to obtain evidence in support of an arbitration that is seated outside of the jurisdiction, provided that the overseas jurisdiction does not make it “inappropriate” for the Court to do so (as with the power contained in section 43 of the Act). In fact, where the seat of arbitration is abroad, the Court will likely need a very good reason to exercise its jurisdiction under section 44 of the Act (Russell on Arbitration, paragraph 7-189). In U&M Mining Zambia Ltd v Konkola Copper Mines Plc [2013] EWHC 260, the Court noted that “a party may exceptionally be entitled to seek interim relief in some court other than that of the seat, if for practical reasons the application can only sensibly be made there”.

There are also different requirements under section 44 of the Act depending on whether or not the application is urgent. If the application is non-urgent, the Court will only exercise its power with the permission of the tribunal or the agreement of the parties to the arbitration (this being the same as the ‘second’ condition described above for section 43 of the Act).

If the application is urgent, there is no requirement for party agreement or permission from the tribunal, however, the Court may only make such orders as are “necessary for the purpose of preserving evidence or assets” (Section 44(3) of the Act).

The election to arbitrate with the support of the Court – the best of both worlds  

Arbitration provides commercial entities with a confidential dispute forum and judgments (awards) that can be enforced across the globe. It is, therefore, an increasingly popular forum for the resolution of cross-border disputes.

The lack of coercive power on the part of arbitral tribunals (compared with their national court counterparts) is one of the few perceived weaknesses of arbitration. However, in England & Wales that perception is countered in reality by the power the Court has to support the arbitral process – the production of evidence from non-parties being one of those powers.

Parties that include arbitration agreements in their underlying contracts should not however be unduly concerned that their election to arbitrate will be undermined by interreference by national courts. As discussed above, the Court will be slow to interfere with the arbitral process and will only do so where the Court’s support is appropriate.

Further information

If you have any questions or concerns about the topics raised in this blog, please contact Francesca Parker. 

About the author 

Francesca Parker is an Associate in the Dispute Resolution team. Francesca has experience advising on complex, high value commercial disputes, often with a cross-border element. She has extensive trial experience and advises clients in litigation and arbitration proceedings