What a mexican lawyer should know about international arbitration in the United States

George R. Díaz-Arrastia¹

International arbitration has its own unique customs and practices. However, the practice of international arbitration is influenced and shaped by national arbitration law, which varies from country to country, the national substantive and procedural law of the country where the arbitration is sited and where the award may ultimately be enforced, and the legal culture of that country. With the rise of cross-border business between Mexico and the United States, there has been a parallel rise in cross-border disputes and cross-border arbitrations. To properly advise our clients, lawyers on both sides of the border need a general familiarity with the law of arbitration on the other side of the border.

This paper seeks to give the international lawyer practicing in Mexico a basic overview of some of the more important aspects of the law and practice of international arbitration in the United States.

I. ARBITRATION LAW IN THE UNITED STATES

The arbitration law of the United States is found in the Federal Arbitration Act,2 commonly referred to as the “FAA,” and the arbitration acts of the several states. There are important differences between the FAA and the state arbitration acts, and among the state arbitration acts. There is no one, common arbitration act for all the states. The Revised Uniform Arbitration Act, published by the National Conference of Commissioners on Uniform State Laws in 2000, has been adopted by 20 states and the District of Columbia, but many important states, like California, New York and Texas have not adopted the Revised Uniform Act.³

Under the United States’ constitutional structure, the federal government has limited powers enumerated in the United States Constitution, while state governments have broad, open-ended powers. See U.S. CONST. amend. X. Similarly, federal courts have limited subject matter jurisdiction, while state courts have broad, open-ended subject matter jurisdiction. However, the “commerce clause” of the United States Constitution, grants to the federal government the exclusive power to regulate international commerce.⁴ Because of this, international arbitrations in the United States will almost always be subject to the FAA.

A separate question is whether federal or state courts will have subject matter jurisdiction to supervise international arbitrations in the United States. The FAA does not itself create subject matter jurisdiction in the federal courts.⁵

Nevertheless, the federal courts will have subject matter jurisdiction in almost all international cases. First, Section 1332 of the federal Judiciary Act⁶ grants to the federal courts “diversity jurisdiction” in cases between citizens of a United States state and citizens of a foreign country, as long as the amount in controversy exceeds $75,000. Diversity jurisdiction also requires that diversity be “complete” – that every claimant or plaintiff be from a different state or country from every respondent or defendant.⁷ More important, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards⁸ also grants the federal courts subject matter jurisdiction to enforce awards in international commercial arbitrations.⁹ The jurisdiction granted by the New York Convention is “federal question jurisdiction,” which is not subject to the amount in controversy and complete diversity requirements of diversity jurisdiction. Even where the arbitration agreement is entirely between United States citizens (such as between an U.S. company and the U.S. subsidiary of a Mexican company), the New York convention grants federal question jurisdiction to the federal courts as long as the matter involves property located abroad, requires some performance abroad, or has some other reasonable relation with a foreign country.¹⁰

However, state arbitration acts may still apply to international arbitrations, at least in part. State arbitration acts may apply to questions on which the FAA is silent, or if the arbitration agreement expressly provides that a state arbitration act will apply. However, a general choice of law provision that a particular state’s substantive law will govern the rights of the parties does not require application of the state’s arbitration act if the FAA is otherwise applicable.¹¹ Also, because the “supremacy clause” of the United States Constitution makes federal law “the supreme Law of the Land,”¹² the FAA preempts any provision of a state arbitration act that is inconsistent with the FAA. For example, the FAA preempts and makes unenforceable any state law that discriminates against arbitration, such as by placing limitations or restrictions on arbitration agreements that are not placed on contracts generally.¹³

II. COMMENCEMENT OF ARBITRATION AND MOTIONS TO COMPEL OR STAY ARBITRATION Under

Under both the FAA and state arbitration acts, arbitration is commenced in the manner provided in the arbitration agreement or the agreed to arbitration rules. Even if the respondent argues that the dispute is not subject to arbitration, a motion to compel arbitration is not required, and the arbitration tribunal can rule on its own jurisdiction. As stated by a Texas Court of Appeals, “[r]equiring a party who is initiating arbitration pursuant to contract to institute litigation prior to arbitration is nonsensical” as it “deprives the parties of the benefits of the contracted-for arbitration clause and defeats the purpose of providing a rapid, inexpensive alternative to traditional litigation. The purpose of an arbitration provision or agreement is to prevent subjecting the parties to litigation in the event of a dispute.”¹⁴

However, if the objection to arbitration is not merely that the dispute is outside the scope of the arbitration agreement, but that no valid arbitration agreement exists at all, then a federal or state court must make the ultimate decision on whether a valid agreement to arbitrate was made. “Where the very existence of any agreement is disputed, it is for the courts to decide at the outset whether an agreement was reached, applying state-law principles of contract.”¹⁵ Although the party objecting to arbitration need not make a motion to stay the arbitration,¹⁶and the proponent of arbitration need not make a motion to compel the arbitration, if no motion to compel or stay is made, after the award is entered a court will consider de novo the existence of an agreement to arbitrate. If the court disagrees with the arbitration tribunal and finds that no agreement to arbitrate was made, then it will vacate the award and the parties will have to re-litigate the matter in court. For this reason, the parties may decide to make motions to compel or stay the arbitration before it begins in earnest. The petitioner may also prefer to make an initial motion to compel arbitration in order to choose the forum where the arbitrability decision will be made. If the petitioner waits for the respondent to make a motion to stay the arbitration, the respondent will choose the forum. Even though, as discussed above, international arbitrations in the United States will almost always be subject to the FAA, and the federal courts will almost always have subject matter jurisdiction to supervise those arbitrations and enforce their awards, the state courts also have concurrent jurisdiction with the federal courts.

Thus, motions to compel or stay arbitration may be presented in a federal or a state court, even in cases where the FAA governs. Generally, proponents of arbitration tend to prefer the federal courts, which are thought in general to be more favorably disposed to arbitration and generally have more experience with it, while opponents of arbitration tend to prefer the state courts.

However, the state courts’ jurisdiction is subject to the removal power of the federal courts under Section 1441 of the federal Judiciary Act.¹⁷ Under Section 1441, an action brought in a state court may be “removed” to federal court if the action could have been initially brought in federal court, and, if the removal is based on diversity jurisdiction, none of the defendants are citizens of the state where the action was brought.¹⁸ Removal also has three important procedural limitations:

(1) the removal petition must be presented to the court no later than 30 days after receipt by the removing defendant of the initial pleading,¹⁹ (2) all properly joined defendants must consent to the removal,²⁰ and (3) an action may not be removed under any circumstances more than one year after commencement of the action.²¹ Because of removal, most, but not necessarily all, international arbitration matters in the United States will be in the federal rather than the state courts.

III. SERVICE OF PROCESS AND NOTIFICATION

While arbitration may be commenced by giving the respondent notice in the manner provided in the arbitration agreement, a motion to compel or stay arbitration, whether filed in federal or state court, must be formally served as in a civil action.²² In international cases where the respondent resides outside the United States, the Federal Rules of Civil Procedure will usually require service of process through an international convention, such as the Hague Convention.²³ This is not always so in state courts. For example, the Texas Arbitration Act²⁴ requires service of process in the form and substance of service on a defendant in a civil action, but the Texas Rules of Civil Procedure and the Texas Civil Practice and Remedies Code in some circumstances permit service of process on foreign parties that do business in Texas, but do not have an establishment in Texas, through the Secretary of State of the State of Texas.²⁵

Service of process through the Hague Convention or other international conventions is costly and can be very slow. If state rules of procedure permit service by less expensive and quicker means, as in Texas, a proponent of arbitration may prefer to file its motion to compel arbitration in state court. If the respondent ignores the service of process, a resulting default arbitration award may not be enforceable in the respondent’s home country, but will likely be enforceable everywhere in the United States. For that reason, the respondent may decide that not to appearing is too risky. If the respondent appears, its appearance will be a general appearance so that no further service of process will be required. Although the respondent will likely be able to remove the motion to compel arbitration to federal court, the removal will also be a general appearance, and no further service of process will be required.

As noted above, it is not necessary for the petitioner to file a motion to compel arbitration in order to commence the arbitration. Notice in the manner provided in the arbitration agreement or the agreed to arbitration rules is sufficient. If the respondent appears in response to the notice, no further notice is necessary. If the respondent does not appear, the petitioner may seek a default award, if the arbitration agreement or the agreed to arbitration rules permit it. If an award has been made, and if the party against which the award was made resides in the same federal judicial district where the award was made, or in the same federal judicial district that the arbitration agreement names as the court with jurisdiction to confirm the award, Section 9 of the FAA provides for a simplified form of service of process for the motion to confirm the award.²⁶ Service under Section 9 may be made by any means permitted for service of a motion in a civil action. This includes service by mail, by hand delivery and by leaving the service papers in the place of business or residence of the person to be served, or his attorney.²⁷

IV. JURY TRIALS

Many parties who agree to submit their disputes to arbitration do so specifically to avoid jury trials. It may surprise many parties that enter into arbitration agreements governed by the FAA that a risk of a jury trial exists if a motion to compel or stay arbitration is filed in federal court.

Section 6 of the FAA provides that any application to the court under the FAA “shall be made and heard in the manner provided by law for the making and hearing of motions, except as otherwise expressly provided.”²⁸ Under both federal and state civil procedure rules, motions are determined by the court without a jury. However, there is an important difference between Section 4 of the FAA, which deals with motions to compel arbitration and Section 9 of the FAA that deals with motions to confirm or vacate the award. Section 4 not only requires full service of process, as noted above, but also provides that:

If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof. If no jury trial be demanded by the party alleged to be in default, or if the matter in dispute is within admiralty jurisdiction, the court shall hear and determine such issue.²⁹

This suggests that the opponent of arbitration is entitled to a jury trial on the issue of arbitrability because Section 4 “otherwise expressly provide[s]” for a jury if demanded by the arbitration opponent. There is no similar provision in Section 9. Thus, in federal court, the arbitration opponent may get a jury trial of motions to compel arbitration, but not of motions to confirm or vacate the award. The parties, of course, may waive any right to jury trial in the agreement to arbitrate or the related contract.

On the other hand, if the motion to compel or stay is presented in a state court (and it is not removed), state procedural rules will govern the case.³⁰ Most state arbitration acts³¹ do not include language similar to the “[i]f no jury trial be demanded” language in Section 9 of the FAA. Many provide that if an issue arises about the existence of an agreement to arbitrate, the court must “summarily determine” the issue.³² The drafters of the Revised Uniform Arbitration Act state in their comments to Section 7 that “the term ‘summarily’ … has been defined to mean that a trial court should act expeditiously and without a jury trial to determine whether a valid arbitration agreement exists.³³ Courts in a number of states, both that have and have not adopted the Revised Uniform Arbitration Act, seem to agree.³⁴

Federal courts will frequently endeavor to avoid a jury trial of a Section 4 motion to stay or compel arbitration by finding that the material facts are not in dispute so that a summary judgment is appropriate. See FED. R. CIV. P. 56. However, there is a greater risk of jury trials in federal court than in state court, unless the arbitration agreement or the related contract also contains a waiver of jury trials.

V. SUBPOENAS, EVIDENCE AND WITNESSES

The FAA and most state arbitration acts empower the arbitration tribunal to issue subpoenas for evidence and witnesses that courts will enforce.³⁵ However, it is frequently easier to subpoena evidence and witnesses under state arbitration acts than under the FAA.

Section 7 of the FAA states:

The arbitrators selected …, or a majority of them, may summon in writing any person to attend before them or any of them as a witness and in a proper case to bring with him or them any book, record, document or paper which may be deemed material as evidence in the case.³⁶

Most federal courts interpret this language to limit the arbitration tribunal’s power to compel third parties to appear to give testimony or to produce documents only to the arbitration hearing itself.³⁷

Moreover, Section 7 provides that if the recipient of the subpoena does not comply, the subpoena is enforced by “the United States District Court for the district in which such arbitrators, or a majority of them, are sitting.”³⁸ Although it may be possible to hold a preliminary hearing for the purpose of taking the testimony and/or receiving the documentary evidence,³⁹ the tribunal will still have to be present.

Further, a federal court may compel a third party to appear to give testimony or produce documents no farther than 100 miles from the place where the recipient of the subpoena “resides, is employed, or regularly transacts business in person.”⁴⁰ If the recipient of the subpoena is more than 100 miles from the site of the arbitration, the tribunal will have to travel to receive the evidence. This can be cumbersome and expensive. It may be possible to apply for a subpoena from a federal court in the district where the person to be subpoenaed resides to compel him to give evidence or testimony in that district, but that is a more cumbersome process.⁴¹

In contrast, many state arbitration acts specifically permit subpoenas for “depositions.”⁴² Many Mexican lawyers will recoil from the idea of U.S.-style depositions in an international arbitration. However, depositions are not uncommon in international arbitrations sited in the United States, even in arbitrations under the FAA. Very frequently, witnesses will appear voluntarily, and subpoenas are not needed to compel testimony and evidence from parties and persons controlled by parties. Any depositions generally must be authorized by the arbitration tribunal.⁴³ In contrast, in U.S. litigation in court, depositions may generally be taken as of right without the need of leave of court. Many state arbitration acts specifically limit depositions only to those “taken for use as evidence at the hearing,” such as depositions of witnesses who are unable to attend the hearing or that cannot be subpoenaed for the hearing because they reside outside the subpoena range of the place of the hearing.⁴⁴ Thus, solely “discovery depositions” may not be taken.⁴⁵ But the ability to issue subpoenas for depositions allows the parties to take testimonial and documentary evidence outside the presence of the tribunal that can later be used at the hearing. This eliminates the need for the tribunal to travel if the witness or documentary evidence is distant from the site of the arbitration.

VI. APPEALS

It is a fundamental principle of arbitration in the United States that arbitration awards on the merits may not be appealed. However, certain court rulings in support of arbitration may be appealed. The FAA and state arbitration acts are in substantial agreement as to what court rulings in support of arbitration may be appealed, and when they may be appealed.

Generally, appeals may be taken from orders by a court denying a motion to compel arbitration or granting a motion to stay arbitration.⁴⁶ These appeals may be taken immediately. Appeals may not be taken from orders granting a motion to compel arbitration or denying a motion to stay arbitration.⁴⁷

This is in keeping with the policy reflected in the FAA and most state arbitration acts to favor arbitration. State statutes that do not permit immediate appeals from orders denying a motion to compel arbitration or granting a motion to stay arbitration may be preempted by the FAA.⁴⁸ Orders and court judgments confirming or denying confirmation of arbitration awards, or modifying, correcting or vacating an arbitration award are also appealable.⁴⁹

VII. CONFIRMATION, VACATUR AND MODIFICATION OF THE AWARD

The FAA and state arbitration acts are also in substantial agreement that the grounds to vacate or deny confirmation of an arbitration award or modify an award are strictly limited by statute. The FAA permits vacatur or denial of confirmation of an arbitration award only:

where the award was procured by corruption, fraud, or undue means;
where there was evident partiality or corruption in the arbitrators, or either of them;
where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.⁵⁰

The FAA permits modification or correction of an arbitration award only:

where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the
where the arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matter submitted.
where the award is imperfect in matter of form not affecting the merits of the ⁵¹

Many state arbitration acts adopt these same grounds for vacatur, denial of confirmation or modification.⁵²

The federal courts and a number of state courts have ruled that these statutory grounds for vacatur, denial of confirmation or modification are exclusive.⁵³ There is also substantial agreement that if no ground for vacatur, denial of confirmation or modification or correction is found, the award must be confirmed.⁵⁴ 9 U.S.C. §9; see, e.g., TEX. CIV. PAC. & REM. CODE §171.087; UNIF.

ARBITRATION ACT § 22 (Rev. 2000).

Section 9 of the FAA states that:

If the parties in their agreement have agreed that a judgement of the court shall be entered upon the award made pursuant to the arbitration, then … after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award …⁵⁵

The italicized language above has led some to argue that under the FAA federal courts lack jurisdiction to confirm the award if the arbitration agreement does not include express language conferring that jurisdiction. Because Sections 10 and 11 of the FAA do not include similar language, this would lead to the curious result that federal courts would lack jurisdiction to confirm the award, but not to vacate, modify or correct the award. Also, if the case falls under the New York Convention, and as discussed above almost all international arbitrations will, the federal district courts should have jurisdiction to confirm arbitration awards, even without express language in the arbitration agreement conferring such jurisdiction.⁵⁶ Most state arbitration acts also do not require express language conferring jurisdiction for their courts to have jurisdiction to confirm an arbitration award. It is generally sufficient to confer jurisdiction on the state’s courts that the arbitration agreement provides for arbitration in the state.⁵⁷

VIII. STATUTES OF LIMITATION OR PRESCRIPTION

There are also differences between the FAA and state arbitration acts regarding the statute of limitations or prescription.

Section 9 of the FAA states that “at any time within one year after the award is made any party to the arbitration may apply” for an order to confirm the award.⁵⁸ Some courts have suggested that the inclusion of “may” in Section 9 means that it is not a true statute of limitations, but is merely a permissive provision.⁵⁹ Other courts have held that Section 9 is a true statute of limitations, and that after one year an arbitration award may not be confirmed in the federal courts.⁶⁰ In my opinion, the principal flaw in the view that Section 9 is only permissive is that if Section 9 does not time bar an action to confirm the award one year after it is made, ¿then what consequence is there to missing the deadline? If there is none, then the language is meaningless. If the case falls under the New York Convention, and almost all international cases will, then the time to seek confirmation is extended to three years after the award is made.⁶¹

Most state arbitration acts do not include a specific statute of limitations for actions to confirm arbitration awards, and the state’s general statute of limitations should apply. In many cases this will result in application of a longer statute of limitations in state courts. For example, in Texas the applicable statute of limitations should be four years.⁶²

Actions to vacate or modify or correct an award tend to have much shorter prescriptive periods. Under the FAA, actions to vacate, modify or correct an award must be made within three months after the award is delivered.⁶³ The Revised Uniform Arbitration Act and many other state arbitration acts have similarly short deadlines to seek vacatur or modification or correction of an award.⁶⁴

In summary, a Mexican international lawyer whose client faces arbitration in the United States should always keep in mind the following points:

There is no one arbitration law in the United States. If one finds oneself in arbitration in the United States, it is very important to identify not only the substantive law that will govern the parties’ rights, but also the law that will govern the arbitration. Is it federal law or state law? If it is state law, which state’s law?
In many cases there will be a choice between the FAA and state arbitration acts, and a choice between federal or state Each choice has advantages and disadvantages in particular cases. Consider the choice carefully.
Although it is not necessary to make a motion to compel arbitration (by the proponent) or to stay arbitration (by the opponent), in some cases it may be beneficial to do so. The party that makes the motion will in most cases be able to choose the forum and the court that will supervise the
If the case is in federal court, there is a risk of a jury trial of a motion to compel To be certain of avoiding a jury trial, a waiver of jury trial should be included in the arbitration agreement.
Remember that if there is a question about the existence of an arbitration agreement at all, the question will ultimately be decided by a court, not the arbitration tribunal. The tribunal may initially rule on its own jurisdiction, but whether an arbitration agreement was made at all will be reconsidered by a court de novo. If the court disagrees with the tribunal, the case will have to be re-litigated in
Although the FAA preempts state arbitration laws to the extent they are inconsistent with the FAA, state arbitration acts may still apply in part, even in cases subject to the FAA. This can be used to advantage when state arbitration acts have favorable provisions, such as with regard to subpoenas and the taking of documentary and testamentary
If a state court is preferred, remember that cases presented in state court are subject to removal to federal court in some circumstances, which occur frequently in international cases. Removal has important limitations and deadlines that must be kept in
Service of process does not necessarily have to be through an international convention, like the Hague Convention, or by a means of service recognized as valid in Mexico. Service by mail may be sufficient in some circumstances, and if ignored such service could lead to a default judgment that may be enforceable everywhere in the United
Both federal and state arbitration law favors arbitration. The FAA preempts any state law that discriminates against arbitration or places special restrictions or impediments to arbitration. Orders compelling arbitration may not be immediately appealed, but orders staying, or failing to compel, arbitration may be immediately Motions to vacate or modify arbitration awards have short prescriptive periods, as short as three months, while motions to confirm arbitration awards have at least a year, or longer.

1 Socio del despacho Schirrmeister, Diáz Arraztria y Brem LLP. Houston. Tx.

2 9 U.S.C. §§ 1-16.

1 Socio del despacho Schirrmeister, Diáz Arraztria y Brem LLP. Houston. Tx.

2 9 U.S.C. §§ 1-16.

3 The Revised Uniform Arbitration Act has been introduced in the Massachusetts legislature in 2018.

4 U.S. CONST. art. I, § 8, cl. 3. The federal government is granted the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” See also Gibbons v. Ogden, 22 U.S. 1 (1824).

5 Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 n.32 (1983); see also 9 U.S.C. § 4 (a federal court may compel arbitration only if it has jurisdiction under Title 28 of the U.S. Code).

6 28 U.S.C. § 1332(a)(2).

7 Strawbridge v. Curtiss, 7 U.S. 267 (1806).

8 9 U.S.C. §§ 201-208. The New York Convention has been ratified by both Mexico and the United States.

9 9 U.S.C. § 202.

10 9 U.S.C. § 202 provides:

An arbitration agreement or arbitral award arising out of a legal relationship, whether contractual or not, which is considered as commercial, including a transaction, contract, or agreement described in section 2 of this title, falls under the Convention. An agreement or award arising out of such a relationship which is entirely between citizens of the United States shall be deemed not to fall under the Convention unless that relationship involves property located abroad, envisages performance or enforcement abroad, or has some other reasonable relation with one or more foreign states. For the purpose of this section a corporation is a citizen of the United States if it is incorporated or has its principal place of business in the United States.

11 Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 58-59 (1995).

12 U.S. CONST. art. VI, § 2.

13 Kindred Nursing Ctr. v. Clark, U.S. (2017); 2017 WL 2039160.

14 In re Rio Grande Xarin II, Ltd., Nos. 13-10-00115-CV, 13-10-00116-CV, 2010 WL 2697145 at *6 (Tex. App.—Corpus Christi July 6, 2010, pet. dism’d).

15 Will–Drill Res., Inc. v. Samson Res. Co., 352 F.3d 211, 218 (5th Cir. 2003).

16 First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 946 (1995). However, the opponent of arbitration must timely object to the jurisdiction of the arbitration tribunal during the arbitration.

17 28 U.S.C. § 1441.

18 28 U.S.C. § 1441(a) and (b)(2).

19 28 U.S.C. § 1446(b)(1).

20 28 U.S.C. § 1446(b)(2)(A).

21 28 U.S.C. § 1446(c)(1).

22 See 9 U.S.C. § 4; see, e.g. TEX. CIV. PRAC. & REM. CODE § 171.094(b).

23 FED. R. CIV. P. 4(f)(1).

24 TEX. CIV. PRAC. & REM. CODE §§ 171.001 et seq.

25 See TEX. R. Civ. Proc. 106 and 108a; Tex. Civ. Prac. & Rem. Code § 17.044(b).

26 9 U.S.C. § 9.

27 See FED. R. CIV. P. 5(b)(2).

28 9 U.S.C. § 6 (emphasis added).

29 9 U.S.C. § 4 (emphasis added).

30 Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 268 (Tex. 1992); Los Angeles Unified Sch. Dist. v. Safety Nat’l Cas. Corp., 13 Cal.App.5th 471, 480-81 (Cal. Ct. App. 2017).

31 Although this paper discusses state arbitration acts generally by using the words “most” or “many,” it is important to remember that, as mentioned above, there is no one, common arbitration act or arbitration law for all the states. “Most” or “many” most emphatically does not mean “all.” Reference must always be made to the specific law of each state that may have jurisdiction over the matter.

32 See, e.g., TEX. CIV. PRAC & REM. CODE § 171.021(b); UNIF. ARBITRATION ACT § 7(b) (Rev. 2000).

33 UNIF. ARBITRATION ACT § 7(b), Comment (Rev. 2000).

34 See, e.g., Jack B. Anglin Co., 842 S.W.2d at 269; Wallace v. Wiedenbeck, 674 N.Y.S.2d 230, 231 (N.Y. App. Div. 1998);

Burke v. Wilkins, 507 S.E.2d 913, 914 (N.C. Ct. App. 1998).

35 9 U.S.C. § 7; see, e.g., TEX. CIV. PAC. & REM. CODE §171.051; UNIF. ARBITRATION ACT § 17 (Rev. 2000).

36 9 U.S.C. § 7 (emphasis added).

37 See, e.g., Life Receivables Trust v. Syndicate102 at Lloyd’s of London, 549, F.3d 210, 216 (2nd Cir. 2008); Hay Group, Inc. v. E.B.S. Acquisition Corp., 360 F.3d 404, 407 (3rd Cir. 2004).

38 9 U.S.C. § 7.

39 See Life Receivables Trust, 549 F.3d at 218.

40 FED. R. CIV. P. 45(c)(1) and (2).

41 See 17 U.S.C. § 1782; Intel Corp v. Advanced Micro Devices, Inc., 542 U.S. 241 (2008).

42 See, e.g., TEX. CIV. PAC. & REM. CODE §171.051(2)(b); UNIF. ARBITRATION ACT § 17(b) (Rev. 2000). But not all do. For example, in New York a subpoena for testimony or evidence “to aid in arbitration” may only be obtained with a court order. N.Y.C.P.L.R. § 3102(c).

43 See, e.g., TEX. CIV. PAC. & REM. CODE §171.050(a).

44 See, e.g., UNIF. ARBITRATION ACT § 17(b) (Rev. 2000).

45 But not in all states. The Texas arbitration act specifically allows discovery depositions, but only if authorized by the tribunal.

46 9 U.S.C. §16; see, e.g., TEX. CIV. PAC. & REM. CODE §171.098; UNIF. ARBITRATION ACT § 28 (Rev. 2000).

47 Id.

48 See Kindred Nursing Ctr. v. Clark, U.S. (2017); 2017 WL 2039160.

49 9 U.S.C. §16; TEX. CIV. PAC. & REM. CODE §171.098; UNIF. ARBITRATION ACT § 28 (Rev. 2000).

50 9 U.S.C. § 10.

51 9 U.S.C. § 11.

52 See, e.g., TEX. CIV. PAC. & REM. CODE §§ 171.088, 171.091; UNIF. ARBITRATION ACT §§ 23, 24 (Rev. 2000).

53 Hall Street Assoc., L.L.C. v. Mattel, Inc., 552 U.S. 576, 584 (2008); see, e.g., Hoskins v. Hoskins, 498 S.W.3d 78, 83 (Tex. 2014).

54 9 U.S.C. §9; see, e.g., TEX. CIV. PAC. & REM. CODE §171.087; UNIF. ARBITRATION ACT § 22 (Rev. 2000).

55 9. U.S.C. § 9 (emphasis added).

56 9 U.S.C. §§ 202 and 207.

57 See, e.g., TEX. CIV. PAC. & REM. CODE §§ 171.081, 171.091; UNIF. ARBITRATION ACT § 26(b) (Rev. 2000).

58 9 U.S.C. § 9 (emphasis added).

59 See, e.g., See Sverdrup Corp. v. WHC Constructors, Inc., 989 F.2d 148, 156 (4th Cir. 1993); Val-U Constr. Co. v. Rosebud

Sioux Tribe, 146 F.3d 573, 581 (8th Cir. 1998).

60 See, e.g., Photopaint Technologies, LLC v. Smartlens Corp., 335 F.3d 152, 156–58 (2nd Cir. 2003).

61 9 U.S.C. § 207.

62 See TEX. CIV. PRAC. & REM. CODE § 16.051.

63 9 U.S.C. § 12.

64 UNIF. ARBITRATION ACT § 23(b) (Rev. 2000); see, e.g., TEX. CIV. PRAC. & REM. CODE § 171.088(b).