International arbitration: Bringing non-parties to the party

Witnesses in the UK

Section 43 of the Arbitration Act 1996 (the Act) allows a party to arbitral proceedings to apply to secure the attendance of a witness to give testimony or produce evidence. This is a mandatory provision, so it cannot be excluded by parties. Three conditions must be satisfied:

• The non-party must be present in the UK and the court may only order the non-party to attend a hearing conducted in England, Wales, or Northern Ireland. Section 43 can be invoked if the arbitral seat is located elsewhere, as long as the hearing takes place within the jurisdiction. This may be useful if the courts of the overseas seat will not intervene. In that case, the court must be satisfied that it would not be inappropriate for it to exercise the powers conferred on it by section 43 of the Act.
• The applicant must either have agreed with the other party, or obtained permission from the tribunal, for the court to exercise this power. The tribunal should grant such permission in circumstances where it is unable to compel the witness itself.
• The court will not permit fishing expeditions; document requests must be precise, identifiable, and material to the dispute. 

Witnesses outside the UK

Section 44(2)(a)-(b) of the Act empowers the court to order a non-party witness to provide or preserve evidence relevant to the arbitration, regardless of where they are located. This is a non-mandatory provision, meaning parties can contract out of its effect.

The court may exercise this power to obtain evidence in support of an arbitration seated outside of the jurisdiction, provided it does not consider it inappropriate to do so. However, 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.

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. If the application is urgent, there is no requirement for agreement or permission from the tribunal; however, the court may only make such orders as are necessary to preserve evidence or assets.

Conclusion

A lack of coercive power on the part of arbitral tribunals is a perceived weakness of arbitration. However, in England & Wales that perception is countered by the power of the court to support the arbitral process, where appropriate.

Arbitration is a popular forum for the resolution of cross-border disputes as it provides commercial entities with a confidential dispute forum and awards that can be enforced across the globe.

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Francesca is an associate in the dispute resolution team at Kingsley Napley. She 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.