The case of the day is A v. C, [2020] EWHC 258 (Comm). The dispute was between joint venturers in a central Asian oil field. The details are unimportant. The claimants demanded arbitration in New York, and the arbitration proceeded to an evidentiary hearing. The tribunal gave permission to the claimants to seek an order from an English court for the taking of evidence from a third party in that country. The interesting jurisdictional question was whether § 44 of the Arbitration Act 1996 gives the court jurisdiction to compel a third party to give evidence.

The court, after a careful reading and analysis of the relevant statutory text, concluded that it lacked jurisdiction to compel discovery from a non-party in aid of an arbitration pending outside of England and Wales, even if the non-party could be served with process in England. I won’t review the details of the reasoning here. I note it mainly because it jibes with the increasingly common view that in the United States, § 1782 does not permit a court to order discovery in aid of a private foreign arbitration. There are, perhaps, some differences. It is not clear that the result would be different in England in the case of an investment treaty arbitration, though it is clear in the United States that courts can order discovery in aid of public international arbitrations. Also, § 1782 does not distinguish parties to the arbitration from non-parties, as the English statute apparently does, though the status of the target of a subpoena as a party or a non-party is relevant in the Intel calculus once the US court decides that the applicant has satisfied the statutory requirements of § 1782.