Subpoenas in support of arbitration – when can Australian courts assist with third party evidence gathering including foreign-seated arbitrations?

Unlike a court, an arbitral tribunal does not have the power to issue subpoenas compelling a third party to provide evidence as arbitration is a creature of contract and binds only those who are a party to the arbitration. However, state and federal legislation comes to the aid by providing Australian courts with jurisdiction in certain circumstances to issue subpoenas in support of arbitrations seated in Australia. The position is less certain with respect to seeking subpoenas from Australian courts in support of foreign-seated arbitrations.

This article provides an overview of:

1. the jurisdiction of Australian courts to issue a subpoena in support of arbitral proceedings;
2. the process in Australia for issuing subpoenas in support of arbitral proceedings; and
3. the process for complying with or challenging subpoenas issued in support of arbitral proceedings.

Part 1: Jurisdiction of Australian Courts

Subject to a particular process being followed (see part 2 below), Australian courts have jurisdiction to issue a subpoena in support of:

• domestic arbitrations (involving only parties that have their places of business in Australia: see s 27A of the uniform Commercial Arbitration Acts (CAA); and
• international arbitrations seated in Australia (in which one or more of the parties is not domiciled in Australia or the obligations of the commercial relationship are most closely connected with a foreign jurisdiction: see s 23 of the International Arbitration Act 1974 (Cth) (IAA)).

For foreign-seated international arbitrations, the position is less clear. This is largely because two Australian courts have reached different conclusions about whether they had jurisdiction to issue subpoenas relating to an international arbitration seated in Singapore:

• The Federal Court of Australia declined to issue subpoenas on the basis that, under the current terms of s 23 of the IAA, Australian courts have no jurisdiction to issue subpoenas to support arbitral proceedings that are not seated in a State or Territory of Australia (Samsung C&T Corporation, Re Samsung C&T Corporation [2017] FCA 1169 at [14] (Samsung)).
• Shortly after the Federal Court's decision in Samsung, the Supreme Court of Western Australia ordered the issue of subpoenas in respect of that same Singapore-seated arbitration, albeit without publishing any reasons for that decision.

For the moment, the position expressed by the Federal Court in Samsung could be said to be the prevailing approach. However, even if that is the case, there are alternative avenues for gathering evidence in Australia for foreign-seated arbitrations (including a letter of request under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters).

Part 2: Process for Issue of Subpoenas

The process under the state and federal legislation for obtaining a subpoena is relevantly the same for domestic arbitrations and international arbitrations, and there are similarities in relevant rules of each of the courts to which such an application can be made.

Parties to an arbitration have, by consent, subjected themselves to the jurisdiction of the arbitral tribunal by entering an arbitration agreement. For this reason, the legislation provides that a party seeking the issue of subpoenas in support of arbitral proceedings must first obtain the arbitral tribunal's permission before applying to the court: see s 23(2) of the IAA and s 27A(2) of the uniform CAA.

After the arbitral tribunal has given its permission, the requesting party may make an application to the court. With any such application, the requesting party would reasonably be expected to provide basic information about the arbitration (e.g., the names of the parties and arbitrator(s), the nature of the arbitration etc.) and the terms of the arbitral tribunal's permission, with most of the complementary court rules including an express requirement to that effect (e.g., r 365F of the Uniform Civil Procedure Rules 1999 (Qld)).

To a large degree, the court will defer to the position taken by the arbitral tribunal reflecting that it would be undesirable for the court to duplicate the functions of the arbitral tribunal and 'second guess' evidence accepted by the arbitral tribunal that the proposed subpoena is relevant to the issues in the arbitral proceeding and is being issued for a legitimate forensic purpose.

That said, the case law makes it clear that the courts must not act as a mere 'rubber stamp'. This was confirmed most recently by the Victorian Supreme Court in we-do-IT Pty Ltd v we-do-IT-Inc [Delaware] [2023] VSC 611 (WDI), in which Justice Croft considered that this principle applied to international arbitrations, just as it did to domestic arbitrations. His Honour referred (at [15] of WDI) to his earlier decision in Aurecon Australasia Pty Ltd v BMD Constructions Pty Ltd (2017) 52 VR 267, in which he had found that the legislation implicitly confirmed an independent discretion in the Court for the purpose of assisting a domestic arbitration process. His Honour described the Court's role in deciding such an application as a balancing exercise:

"While a degree of deference to the position taken by the arbitral tribunal is vital, it is clear from the case law that the Court does not act as a mere ‘rubber stamp’ in issuing subpoenas in support of arbitral proceedings."

Part 3: Process for Complying with / Challenging Subpoenas

After a subpoena is issued in support of arbitral proceedings, the relevant court rules apply to that subpoena. However, it is not detailed in the court rules which functions are to be discharged by the arbitral tribunal, and which are to remain with the court. For example, any objections by the subpoenaed third party will naturally be a matter for the court which issued the subpoena whereas the management of the process of making any produced documents available to the parties to the arbitration is arguably a matter best addressed by the arbitral tribunal through a procedural order, possibly at the same time as granting permission for the application to be made to the court.