USA Law and Practice Contributed by: Matthew Kirtland, Timothy Tyler, Katie Connolly and Taylor LeMay, Norton Rose Fulbright US LLP
However, in certain states, counsel must be licensed to practise in that state; if not licensed, they may only participate in arbitration if the proceedings arise out of the attorneys’ home state practice. In other states, counsel must file a verified statement with the state bar association or practise in conjunction with a licensed attorney. 8. Evidence 8.1 Collection and Submission of Evidence The FAA does not provide any evidentiary rules. Arbi - trators are accorded great deference in their appli - cation of evidentiary rules. To the extent that parties agree, arbitrators may refer to the Federal Rules of Evidence or the IBA Rules on the Taking of Evidence in International Arbitration. In addition, many institutional rules include guidelines on evidentiary matters. Under the FAA, arbitrators have the power to summon witnesses to appear, testify and produce documents at an arbitration hearing. The US district court for the district in which the arbitration is seated is typically required to enforce such summons, but such enforce - ment is not guaranteed. In the event of non-compli - ance, the statute empowers the district court in the district in which the arbitrator sits to compel attend - ance before the arbitrator at a hearing. In addition, if a third-party witness is outside the range of a court at the arbitral seat, parties should consider a court at the location of the witness. Outside the context of a hearing, the FAA does not empower the arbitrators to subpoena documents from third parties. 8.2 Rules of Evidence See 8.1 Collection and Submission of Evidence . 8.3 Powers of Compulsion See 8.1 Collection and Submission of Evidence .
agreeing to resolve disputes by arbitration. Most institutions’ rules provide default confidentiality rules, which apply when the parties do not have a specific agreement. US courts will generally uphold confidentiality agree - ments between parties made before or during an arbi - tration, although that can be modified in respect of any arbitration materials that are filed with the court – eg, during enforcement or vacatur proceedings. Unless expressly protected by the parties’ agreement or chosen arbitration rules or a tribunal order, informa - tion in US court proceedings and papers filed in con - nection with them are presumptively open to the pub - lic. In short, information in arbitral proceedings is likely to be disclosed in judicial proceedings to enforce an arbitration agreement or arbitration award. In order for an arbitral award to be enforced by US courts, it must be “confirmed” (ie, recognised) by a court with jurisdiction. The legal requirements for con - firmation/recognition and enforcement differ depend - ing on the nature of the award and the jurisdiction in which recognition is sought. There is no requirement that the award be reasoned, unless agreed by the par - ties. The FAA does not require a particular form for an arbi - tral award. Under the New York Convention, the award must be confirmed within three years and the arbitra - tion agreement must have been in writing. A motion to vacate the award must be filed and served within three months of the award being filed or delivered. 10.2 Types of Remedies The FAA does not limit available remedies. However, certain states may impose limitations, which will apply if state law governs rather than federal. For example, in New York state arbitrations, arbitrators generally may not award punitive damages. 10. The Award 10.1 Legal Requirements In certain circumstances, courts have refused to enforce remedies in international arbitral awards that
9. Confidentiality 9.1 Extent of Confidentiality
The FAA does not provide specific rules govern - ing confidentiality, nor do US courts generally find an implicit commitment to confidentiality by merely
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