Clifford Chance
Court confirms power to order taking of evidence from non-parties to a foreign-seated arbitration
23 April 2020
In A v C(1) the Court of Appeal considered whether Section 44(2)(a) of the Arbitration Act 1996 empowers the courts to issue orders for taking the evidence of a witness who is resident in the United Kingdom but not a party to an arbitration agreement. In considering the seemingly contradictory
first-instance authorities, the Court of Appeal concluded that Section 44(2)(a) gives the courts a
discretionary power to order such a deposition, including in respect of foreign-seated arbitrations.
The judgment offers much-needed guidance for parties which have identified non-party witnesses
who hold potentially relevant evidence but are unwilling to give evidence voluntarily.
