Taking Evidence from Non-parties in International Commercial Arbitration

In this note I consider the recent decision of A and B v C, D and E in which the Court of Appeal confirmed that, pursuant to s44(2)(a) of the English Arbitration Act 1996, the court has the power to order the taking of evidence from a non-party to an arbitration so that it can be adduced in an arbitration that was being conducted in a foreign jurisdiction. That subsection forms part of s44, a non-mandatory provision, which provides that, unless otherwise agreed by the parties, the courts have the same powers regarding arbitration as it has for legal proceedings in support of an arbitration. As well as s44(2(a), the other powers of the court under s44(2) include the preservation of evidence; orders in respect of property which is subject to the proceedings; the sale of goods that are subject to the proceedings; and the granting of interim injunctions and appointing receivers. In providing guidance on the scope and application of s44(2)(a), the Court of Appeal declined to extend its analysis to the wider issue of whether the other powers under s44(2) extended to non-parties.