Burr Alert: Doctrinal Split Over Nonparty Discovery In Arbitration Continues

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The Federal Arbitration Act (FAA) was enacted to ensure the enforceability and validity of arbitration agreements. Through the enactment of this sweeping legislation, Congress signaled its approval of arbitration as a form of alternative dispute resolution and ushered in a national policy favoring arbitration. Currently, however, this national policy is frustrated by a circuit split regarding arbitrators' ability to issue nonparty subpoenas when not incident to an actual arbitration hearing.

The split specifically concerns Section 7 of the FAA and whether, by its vague language, the section permits an arbitrator to compel pre-hearing discovery depositions and document production from nonparties. Section 7 states in pertinent part...

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