December 6, 2020

CONDUCT OF ARBITRAL PROCEEDING: SECTION 26 and 27

S. 26-Expert appointment by arbitral tribunal

STATEMENT: (1) Unless otherwise agreed by the parties, the arbitral tribunal may-

a) Appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal, and

b) Require a party to give the expert any relevant information or to produce, or to provide access to, any relevant documents, goods or other property for his inspection.

(2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert shall, after delivery of his written or oral report, participate in an oral hearing where the parties have the opportunity to put questions to him and to present expert witnesses in order to testify on the points at issue.

(3) Unless otherwise agreed by the parties, the expert shall, on the request of a party, make available to that party for examination all documents, goods or other property in the possession of the expert with which he was provided in order to prepare his report.

APPOINTMENT OF EXPERT:

In the absence of an agreement between the parties on part or whole of the subject-matter of the dispute, the arbitral tribunal may:

· Appoint one or more experts

· Ask such experts to determine specific issues

· Deliberate upon such issues

Further, the tribunal to facilitate the expert may direct the party to:

· Give the expert any relevant information

· Produce and provide access to all relevant information/documents/goods etc. for inspection

EVIDENCE AND EXPERT:

If the parties have failed to devise an agreement, the tribunal on request of written or oral request of expert shall:

· Ask the expert to participate in the oral arbitral proceedings

· Permit the parties to put questions to such experts who had made the report

· Permit the parties to present their own expert witnesses to have viewpoints over the issue.

Expert advice is almost invariably given in the form of a written report which is produced prior to the hearing and on which the expert is cross examined at the hearing. As with factual witnesses, the direction should specify a date on which the reports are to be produced or the date should be capable of being precisely determined by reference to other events in the arbitration.

It is permissible to an arbitrator to take assistance in technical matters, in so far as such assistance is necessary, for the discharge of his duties.in the case of Abdul Halim vs. Ismail Momim (1925), it was observed by the court that, if an arbitrator had asked some persons about the questions of law, or if he had consulted them as to the style, syntax or grammar of is award, he was quite within his rights to do so, but if he arrived at any findings of fact by consulting outsiders and allowed the persons sitting with him to affect his decision as assessors, then it must be held that there had been misconduct. In the case of Ramesh Chandra Agrawal vs. Regency Hospital Ltd. (2009), the Supreme Court held that, in the cases where science involved is highly specialized, expert’s role can’t be disputed. Expert has to be put before court all materials with necessary scientific criteria for resting accuracy of conclusions together with reasons, so that court, although not an expert, may form its own independent judgement.

S. 27-Court assistance in taking evidence

STATEMENT:

(1) The arbitral tribunal, or a party with the approval of the arbitral tribunal, may apply to the court for assistance in taking evidence.

(2) The application shall specify-

a) The names and addresses of the parties and the arbitrators;

b) The general nature of the claim and the relief sought;

c) The evidence to be obtained, in particular, –

i. The name and address of any person to be beard as witness or expert witness and a statement of the subject-matter of the testimony required;

ii. The description of any document to be produced or property to be inspected.

(3) The court may, within its competence and according to its rules on taking evidence, execute the request by ordering that the evidence be provided directly to the arbitral tribunal.

(4) The court may, while making an order under sub-section (3), issue the same processes to witnesses as it may issue in suits tried before it.

(5) Persons failing to attend in accordance with such process, or making any other default, or refusing to give their evidence, or guilty of any contempt to the arbitral tribunal during the conduct of arbitral proceedings, shall be subject to the like disadvantages, penalties and punishments by order of the court on the representation of the arbitral tribunal as they would incur for the like offences in suits tried before the court.

(6) In this section the expression “Processes” includes summonses and commissions for the examination of witnesses and summonses to produce documents

EVIDENCE RECORD:

The assistance of the court for recording can be availed of in arbitral proceedings when:-

(i) The arbitral tribunal desires so

(ii) A party wishes so and the request is acceded to by the arbitral tribunal.

A request to the court for recording evidence may be made by:

(i) The arbitral tribunal

(ii) Any of the parties with the approval of the arbitral tribunal

If any witnesses is guilty of any contempt to the arbitrator he can be punished by the court. There is no prescribed procedure for service of notice through the court under the act and thus it should be served as prescribed in Civil Code. A tribunal doesn’t have the power to require the attendance of a witness who refuses to attend and give evidence and then the tribunal may be justified in making the adverse inference from his failure to do so. A party is free to use courts procedure to compel his attendance.

PARTICULARS REQUIRED:

The arbitral tribunal of its own motion, or at request of the parties to the arbitration, desirous of taking the assistance of the court in recording of evidence and shall specify as follows:

(a) Names and addresses of the parties and the arbitrators

(b) General nature of claim and relief sought

(c) Evidence to be obtained including the names, addresses of the person and other document relation to property etc.

PERMISSION OF ARBITRATOR FOR COURT APPROACH:

As per subsection (3), court assistance is only for the executing for the recording of the evidence as the court has no power to direct evidence to be produced or recorded. It would be not proper on the part of an arbitrator to disallow the request of a party for moving the court to take out summons for the appearance of the witnesses, especially when it is very important for the case has been stated in case of Lilit Madhvan vs. Building Committee, Council of Institute of Company Secretaries of India (1995). The remedy available to the petitioner if the arbitral refuses, is that he can file the objection under section 34. Rest, the Act is totally silent in the situation on such refusal.

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Author Details: Vaibhav Goyal (BA LLB Student, Panjab University)

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