Sometimes it is necessary to obtain evidence from non-parties during a reinsurance penalty. Nevertheless, federal arbitration ("FAA") does not expressly impose sanctions against non-party (or, for that matter, any) interrogation discovery. In practice, however, most parties ask that the arbitral tribunal issue a "hearing" judgment and then negotiate with the non-party to produce documents without having to appear at a hearing with a witness. Most non-parties just want to sue their actions (to guard against criticism from others about volunteering information) and will eventually agree to produce a negotiated set of documents. In addition, nothing in the FAA lacks a party from negotiating a common sense resolution to a polling request.
But what if it turns out that a testimony is not needed at the hearing or any additional documents that the non-party did not produce? If the non-party does not voluntarily appear, it is necessary to hear the court or an agenda to force testimony and actions. And what if the non-party doesn't appear? A recent case dealt with this issue in connection with a petition for enforcement of a hearing notice.
Washington National Ins. Co. v. Obex Group LLC No. 18 CV 9693 (VB), 2019 U.S. Pat. Dist. LEXIS 9300 (S.D.N.Y. January 18, 2019) has an action brought by a cedent to execute two arbitration awards issued by the panel in an underlying reinsurance procedure. The non-party was asked to appear at a hearing, but failed to attend. That cedent brought this procedure to force the non-party to attend and produce documents at the hearing. The non-party moved to crush.
The court rejected the motion to set off and grant the petition to force the enforcement of the summons to require the non-party to appear and produce all susceptible non-privileged acts in one day's election of the arbitration panel. The matter raises a number of interesting questions.
First, it was a day calling, not a judgment. FAA Section 7 allows the arbitrators to "summon to write anyone to participate in them or any of them as a witness and, in the proper case, bring him or her any book, record, document or paper that can be considered material evidence. In the case. "Even though it is not radically different from a mood, given that it is to be served in the same way as a daily vote, it is another instrument. The International Committee for Commercial Disputes and the Arbitration Board of the New York City Bar Association drafted a model call and included a comprehensive report of notifications to cases. You will find that model and report here. It's worth reviewing.
Secondly, the FAA Party 7 allows the party seeking the summons to execute the summons: "If any person or person called to testify refuses or neglects to obey the summons, the district court of the district in which such arbitrators or one majority of them may force the presence of such person or persons before the said arbitrator or arbitrators or punish the person or persons for contempt in the same way as prescribed by law to ensure the presence of witnesses or their punishment for negligence or refusal to participate in the courts of the United States states. "That was what was being sought in the petition here in New York, where the arbitrators sat (the notice would appear on a hearing before the New York panel).
In granting the petition, the court rejected any interesting arguments. Among them was the argument that the arbitrators were not from New York, the federal court in New York lacked the right to decide the petition. The court noted that no case was quoted or found where a court looked at the arbitrator's business addresses to determine where the arbitrator is. Another objection was that the arbitral tribunal did not have the right to issue external lawsuits or summonses in several districts. The Court argued that nothing in Section 7 requires the arbitration panel to sit in a single place. We have participated in hearings where hearing aids were held in several places. It is the beauty of the arbitration's flexibility.
The court also rejected the argument that the summons was for unauthorized negotiation discovery. Referring to the Second Circle, the Court noted that Section 7 is not limited to witnesses in negotiation hearings but extends to hearings covering a range of preliminary issues. Life Claims Tr. v. Syndicate 102 of Lloyd's of London 549 F.3d 210, 212 (2d Cir. 2008). As the court stated, the convenors were hearing, not depositing, and the panel's orders stated that the panel was prepared to receive testimony and documentation and to rule on evidence.
The Court rejected any arguments on the merits of the objections to testimony and documents, stating that these issues are for the arbitrator to decide. Finally, the court rejected the argument that enforcement was wrong because the creditor did not move to force enforcement and did not provide evidence. The court pointed to the simple language in section 7 which stipulates that a petition must be forced to attend the arbitrators where the named party refuses or neglects to obey the summons. In addition, each party had submitted declarations with exhibitions that support their views.
Of course, through the disability mechanism, ineffective no matter how fast the court moves. And clearly, it will delay the ultimate hearing. Although testimony and actions are very relevant and make the difference in the matter, a guardian and the ability to enforce the calling are by forcing the non-party to appear and produce the way to go.