Congress enacted the Federal Arbitration Act (the “Act” or “FAA”) in 1925 to overcome the antipathy some judges had for private arbitration. The Act provides that an agreement to arbitrate is as enforceable as any other contract. 9 U.S.C. § 2. Any state law saying otherwise is preempted by federal law. Southland Corp. v. Keating, 465 U.S. 1, 16 (1984).
One key aspect of the Act was to provide subpoena powers to arbitrators, analogous to powers bestowed on judges. Subpoenas are, after all, often necessary to allow a decision maker access to the facts needed to make informed decisions. Sometimes only non-parties have those facts.
But this is a somewhat curious state of affairs. Arbitration agreements are private contracts. And yet, federal law provides arbitrators – who are private decision-makers appointed by the parties by contract – the power to involve parties who are strangers to that contract to provide information to be used in the dispute. Still, if arbitration is to be recognized as a form of dispute resolution, subpoena powers may be required to make arbitration effective.
Even more curious is this: Although it has been more than one hundred years since the FAA was enacted, courts still don’t agree on the exact scope an arbitrator’s subpoena power. It varies by circuit and even by court.
The goal of this article is to report on some of the differences between courts’ decisions on arbitral subpoenas and suggest a practical approach to deal with them.
(Copyright © David Allgeyer 2026. All rights reserved. Reprinted here with the author’s permission..)
*The views expressed are those of the author(s) and do not necessarily reflect the views of CCA or any other organization.
