Many practitioners in major domestic commercial arbitrations bring the habits of civil litigation with them. They come to the initial preliminary hearing with long lists of witnesses whose depositions they want to take. They are surprised and disappointed to learn that at least in the U.S. Court of Appeals for the Second and Third circuits, the arbitrators do not have the power to summon third-party witnesses for depositions, but they retain their enthusiasm for taking the depositions of numbers of employees of the opposing party.
Like most arbitrators, I share the view that the role of the arbitrators is to decide what the parties cannot agree on. When both parties want depositions, the arbitrators may try to persuade them to limit the number, but ultimately are unlikely to require that they do so.
