Court orders for oral evidence and disclosure by non-parties in support of foreign arbitration proceedings: the changing picture in England- Jonathan Schaffer-Goddard

A lesser discussed area of the reforms to the Arbitration Act proposed by the Law Commission are the reforms proposed to s.44 and the powers of the court to support arbitrations set out therein.

In this article, recently published in the New York University Journal of International Law and Politics, Jonathan Schaffer-Goddard discusses s.44 in the context of the recent US Supreme Court case of ZF Auto. US, Inc. v Luxshare, Ltd., ___US___, 142 S Ct 2078 [2022] which excluded commercial and investor state arbitration from the scope of §1782 relief.

Jonathan argues that on a proper reading of s.44, contrary to previous High Court decisions, there is no provision for orders to disclose documents under that section, but that documents may be obtained as part of a CPR deposition under s.44(2)(a). Following the decision in A v C [2020] EWCA Civ 409 that power can be exercised over third-parties, but will not offer anything close to the production previously available to parties under §1782 in the United States.