Revue - Les Cahiers de l'Arbitrage N°1-2023 - 139

COMMENTAIRES DE JURISPRUDENCE
If an eventual MIC contained most or all of these characteristics, it could
constitute an " international tribunal " for purposes of § 1782 under Luxshare. If
so, parties to an international dispute may decide to submit their dispute to the
MIC, where possible, to take advantage of the broader evidence-gathering options
afforded by § 1782.
Third, parties to an arbitration agreement may choose to seat their arbitration
in the United States and select a favorable state law as the lex arbitri. As explained,
the FAA is the main arbitration law of the United States. But the United States is a
federation of fifty states, many of which have their own arbitration codes. Some of
those codes provide lex arbitri for international arbitrations.
The FAA often preempts (i.e., displaces) state law. But in Volt the Supreme Court
held that parties to an arbitration agreement could contract to apply California law
rather than the FAA as the lex arbitri. It explained that the FAA " does [not] reflect a
congressional intent to occupy the entire field of arbitration. " 126
The object of the
FAA is to " require[ ] courts to enforce privately negotiated agreements to arbitrate,
like other contracts, in accordance with their terms. " 127
Accordingly, the parties
to an arbitration agreement " may specify by contract the rules under which that
arbitration will be conducted. " 128
the [FAA] is a matter of consent, not coercion, and parties are generally free to
structure their arbitration agreements as they see fit. " 129
prevents the enforcement of agreements to arbitrate under different rules than those
set forth in the [FAA] itself. " 130
As noted above, § 7 of the FAA provides arbitrators with very limited power
to order third-parties to produce evidence. 131
Accordingly, parties to an arbitration
agreement who want to take advantage of broad, United States-style discovery
may consider selecting the law of a state favorable to this practice as lex arbitri.
California is one such example. The California International Arbitration and
Conciliation Act, Cal. Code Civ. Pro. § 1297.271, permits parties to an arbitration
or the arbitral tribunal to request a California state court to assist in the taking of
evidence, including by issuing subpoenas to third-parties:
The arbitral tribunal, or a party with the approval of the arbitral tribunal,
may request from the superior court assistance in taking evidence and the
court may execute the request within its competence and according to its
rules on taking evidence. In addition, a subpoena may issue as provided
in Section 1282.6, in which case the witness compensation provisions of
Section 1283.2 shall apply. 132
In at least one case, a California court has successfully issued a subpoena for
the pre-hearing deposition of a third-party pursuant to § 1297.271. 133
126. Volt Info. Scis., Inc. v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 477
(1989).
127. Id. at 478.
128. Id. at 479.
129. Id.
130. Id.
131. See cases cited supra note 9.
132. See Cal.C.C.P. § 1297.271.
133. Matter of Roche Molecular Sys., Inc., 60 Misc. 3d 222, 224, 226−27 (N.Y. Sup. Ct. 2018).
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137
Indeed, in the Court's view, " [a]rbitration under
Hence, nothing in " FAA

Revue - Les Cahiers de l'Arbitrage N°1-2023

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