IN INTERNATIONAL TRADE LAW

(Project towards partial fulfillment of the assessment in the subject of International Trade Law)

PROJECT SUBMITTED BY:

AYUSHMAN KISORE
B.B.A LL.B (Hons.)
Roll No. 2015
SUBMITTED TO: Mr. Hrishikesh Manu
Faculty – Alternative Dispute Resolution

CHANAKYA NATIONAL LAW UNIVERSITY

MITHAPUR, PATNA – 800001

 ACKNOWLEDGEMENT

I , hereby express my heartfelt gratitude to Mr. Hrishikesh Manu for his

guidance and supervision. This project topic has instilled in us a unique thirst
for knowledge in the subject. It could not have achieved completion without the
aegis of Mr. Hrishikesh Manu.
CONDUCT OF ARBITRAL TRIBUNAL(S 18 to 27)

1. EQUAL TREATMENT OF PARTIES

2. DETERMINATION OF RULES OF PROCEDURE
3. PLACE OF ARBITRATION
4. COMMENCEMENT OF ARBITRAL TRIBUNAL
5. LANGUAGE
6. STATEMENT OF CLAIM AND DEFENCE
7. HEARING AND WRITTEN PROCEEDINGS
8. POWERS OF ARBITRAL TRIBUNAL TO ENFORCE ITS ORDERS PASSED U/S
17,23 AND 24
9. POWERS OF COURT FOR ENFORCEMNT OF THE PREEMPTORY ORDERS
OF THE ARBITRAL TRIBUNAL
10. DEFAULT OF A PARTY
11. EXPERT APPOINTMENT BY ARBITRAL TRIBUNAL
12. COURT ASSISTANCE IN TAKING EVIDENCE

EQUAL TREATMENT OF PARTIES (sec 18)

The parties shall be treated with equality and each party shall be given a full
opportunity to present his case.

This section casts some duties on the Arbitral Tribunal:

- It must be independent and impartial

- Must mete out equal treatment to each party.

Must give each party a full opportunity to present their case

The Principle of natural justice must be followed.

- Nemo judex in causa sua

- Audi Alteram Partem

There was no specific provision in the Arbitration Act, 1940, corresponding to

section 18.

This section is in pattern of A.18 of the Model Law.

DETERMINATION OF RULES OF PROCEDURE (section 19)

19. Determination of rules of procedure.—

(1) The arbitral tribunal shall not be bound by the Code of Civil Procedure,
1908 (5 of 1908) or the Indian Evidence Act, 1872 (1 of 1872).

(2) Subject to this Part, the parties are free to agree on the procedure to be
followed by the arbitral tribunal in conducting its proceedings.

(3) Failing any agreement referred to in sub-section (2), the arbitral tribunal
may, subject to this Part, conduct the proceedings in the manner it considers
appropriate.

(4) The power of the arbitral tribunal under sub-section (3) includes the power
to determine the admissibility, relevance, materiality and weight of any
evidence.

The provisions of CPC and Evidence Act must not be applied in arbitration
proceedings where mere procedure is likely to hinder speedy justice, but there
should be no hesitation to invoke them if they may be helpful in rendering
justice.

Conditions under this section:

- Not bound by CPC or Evidence Act

- Freedom to parties to decide the procedure of Arbitral Tribunal
- In absence of any agreement between the parties, the Tribunal can decide
its own procedure.
- Power of tribunal- admissibility, relevance, materiality and weight of
evidence.
PLACE OF ARBITRATION (section 20)

1. The parties are free to agree on the place of arbitration.

2. Failing any agreement, the place of arbitration shall be determined by the
tribunal. Regard must be given to the circumstances of the case and
convenience of parties.
3. The tribunal may meet at any place for-
- Consultation among its members
- Hearing of witnesses
- Hearing of Experts or the parties
- Inspection of documents, goods or other property.

Shin satellite public co. Ltd vs Jain studios Ltd (2006)

One of the parties to the arbitration submitted that the matter should be referred
to arbitration either in London or Singapore when other arbitrations were
already in progress between the same parties. But the court said that because the
arbitration agreement provided Delhi as the venue and that part of the
agreement being enforceable, the power for reference at a place outside Delhi
could not be granted.

COMMENCEMENT OF ARBITRAL PROCEEDINGS (S. 21)

Unless otherwise agreed by the parties, the arbitral proceedings in respect of a

particular dispute commence on the date on which a request for that dispute to
be referred to arbitration is received by the respondent.

The date of commencement of arbitral proceedings does not relate to arbitrators

entering on the reference or having been called upon to act as arbitrator but on
receipt of request by the respondent that the dispute be referred to arbitration for
settlement. Therefore, once the request is received by the opposite party, it is
immaterial whether he assents to the request for arbitration or not.
The date of service of notice to appoint an arbitrator will not be the date of
commencement of the proceedings.

Particulars of all disputes taken together should be referred to arbitration. If

some of the disputes arising under the terms of agreement between the parties
are omitted, they cannot be raised subsequently through another reference.

LANGUAGE

It is open to the parties by agreement to decide what language or languages are

to be used in the proceedings. If there is no such agreement, the Tribunal shall
determine the language or languages to be used.

The language finalised shall be applicable to:

- Any written statement, including a claim and a defence by a party

- Any hearing
- Any arbitral award, decision or other communication by the tribunal.

All pleadings, all applications, all statements, all orders, etc would have to be in
the language agreed upon or determined.

STATEMENT OF CLAIM AND DEFENCE (s.23 to 27)

Sections 23 to 27 lays down the procedure to be followed in arbitration

proceedings.

The claimant has to file his claim stating the facts supporting his claim, the
point at issue and the relief or remedy sought. The respondent, on receiving the
claim papers, has to state his defence in respect of the particulars enumerated in
the claim. The parties may agree to any other method of bringing the elements
of the dispute to the notice of the tribunal. The time for filing papers may be
fixed under the parties agreement or by the tribunal.

Claim and defence (s.23)

(1)Within the period of time agreed upon by the parties or determined by the
arbitral tribunal, the claimant shall state the facts supporting his claim, the
points at issue and the relief or remedy sought, and the respondent shall state
his defence in respect of these particulars, unless the parties have otherwise
agreed as to the required elements of those statements.

(2) The parties may submit with their statements all documents they consider to
be relevant or may add a reference to the documents or other evidence they will
submit.

(2A) The respondent, in support of his case, may also submit a counterclaim or
plead a set-off, which shall be adjudicated upon by the arbitral tribunal, if such
counterclaim or set-off falls within the scope of the arbitration agreement.

(3) Unless otherwise agreed by the parties, either party may amend or
supplement his claim or defence during the course of the arbitral proceedings,
unless the arbitral tribunal considers it inappropriate to allow the amendment
or supplement having regard to the delay in making it.

The claim and defence filed by the parties within the time agreed upon by the
parties or fixed by the tribunal.

In the absence of such agreement the claimant has to state:

- The facts supporting the claim

- The points at issue
- The relief or remedy sought.

The statement of defence has to state the defence in respect of these

particulars.

Counter- claim

An arbitrator should receive a counter claim as a part of the pleadings of the

parties and take into account in deciding the dispute on its merits. He should not
refuse to take the cc by saying that it is outside the agreement.

Documentary evidence

Along with their statement of claim and defence, the parties may submit all
relevant documents. They may also add references to the documents and other
evidence which would be submitted later.

Amendment of statement.
The parties, may, during the arbitral proceedings, amend or supplement their
claim or defence unless:

- The parties have agreed otherwise

- The tribunal considers it inappropriate to allow the amendment or
supplement due to the delay in making it.

HEARING OR WRITTEN PROCEEDINGS (S. 24)

(1) Unless otherwise agreed by the parties, the arbitral tribunal shall decide
whether to hold oral hearings for the presentation of evidence or for oral
argument, or whether the proceedings shall be conducted on the basis of
documents and other materials:
Provided that the arbitral tribunal shall hold oral hearings, at an
appropriate stage of the proceedings, on a request by a party, unless the
parties have agreed that no oral hearing shall be held
[Provided further that the arbitral tribunal shall, as far as possible, hold
oral hearings for the presentation of evidence or for oral argument on
day-to-day basis, and not grant any adjournments unless sufficient cause
is made out, and may impose costs including exemplary costs on the
party seeking adjournment without any sufficient cause.]
(2) The parties shall be given sufficient advance notice of any hearing
and of any meeting of the arbitral tribunal for the purposes of inspection
of documents, goods or other property.
(3) All statements, documents or other information supplied to, or
applications made to, the arbitral tribunal by one party shall be
communicated to the other party, and any expert report or evidentiary
document on which the arbitral tribunal may rely in making its decision
shall be communicated to the parties.

Oral hearing

It is open to the parties to agree whether any oral hearing should be held by the
Arbitral Tribunal or not. If there is no such agreement, it is for the tribunal to
decide:
 - Whether to hold oral hearings for the presentation of evidence or for oral
arguments, or
- Whether the proceedings shall be conducted on the basis of documents
and other materials.

If oral hearing has not been excluded by agreement the Tribunal has to hold oral
hearings at an appropriate stage if a request is made by the parties.

Notice to the parties

The tribunal must give to the parties sufficiently advance notice:

- Of any hearing
- Of any meetings of the tribunal for the purpose of inspection of
documents, goods or other property.

Supply of documents

An Arbitral tribunal can use only such material of which both the parties are
aware and which they have an opportunity to counter. In order to achieve this
end, section 23(3) makes two provisions;

- That the tribunal shall communicate to the other party all the materials,
including statements, documents, information and applications supplied
to the tribunal by one party
- That the tribunal shall communicate to all the parties any expert report
or evidentiary material on which it seeks to rely.

DEFAULT OF PARTY (S.25)

Unless otherwise agreed by the parties, where, without showing sufficient

cause,—

(a) The claimant fails to communicate his statement of claim in accordance

with sub-section (1) of section 23; the arbitral tribunal shall terminate the
proceedings;

(b) the respondent fails to communicate his statement of defence in accordance

with sub-section (1) of section 23, the arbitral tribunal shall continue the
proceedings without treating that failure in itself as an admission of the
allegations by the claimant and shall have the discretion to treat the right of the
respondent to file such statement of defence as having been forfeited;

(c) A party fails to appear at an oral hearing or to produce documentary

evidence; the arbitral tribunal may continue the proceedings and make the
arbitral award on the evidence before it.

Clause (a)- Failure to submit claim

If the claimant fails to submit the statement of his claim in accordance with the
provision of s.23 (1), the tribunal shall terminate the proceedings. The reference
will be dismissed.

A decision under clause (a) is an order for termination of proceedings. The court
distinguished an order for an award. An order under this section is a termination
of proceedings without any decision on merits. An award is a termination after
considering merits of the matter under dispute.

Clause (b) - Failure to submit defence

If the respondent fails to submit the statement of defence in accordance with the
requirements of the section, the proceedings will be continued, and the award
will be made on the material and evidence before the tribunal, and the failure
will not be treated as an admission of the allegations made by the claimant.

Section 2(9) provides that a claim would include a counter-claim.

Clause (c)- Failure to appear

This clause empowers the tribunal to continue the proceedings and to give its
award where a party fails to appear at an oral hearing, or fails to produce
documentary evidence.

EXPERT APPOINTED BY ARBITRAL TRIBUNAL (S.26)

(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.

COURT ASSISTANCE IN TAKING EVIDENCE (S.27)

(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 the obtained, in particular,—

(i) The name and address of any person to be heard as witness or

expert witness and a statement of the subject-matter of the
testimony required;

(ii) The description of a 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 or 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 fault, 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.