19BBL055

Institute of Law,

Nirma University

Arbitration, Conciliation &

Alternate Dispute Redressal System

Methods of adducing evidence before the arbitral

tribunal.
2022 – 2023

Semester VII

19bbl055- Shreyansh Ransingh

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Methods of adducing evidence before the arbitral tribunal.

INTRODUCTION

Arbitration proceedings, unlike court proceedings are not predominantly judged by the CPC. Despite the same
principles being applied as a sort of a general rule, the arbitral proceedings are subject to any rules agreed to in the
arbitration agreement subject to some reasonable restrictions. Due to this while there may be distinctions on a case
to case basis, the methods for adducing evidence is chiefly guided by any relevant clauses in the agreement, section
19 of the arbitration and conciliation act and other supporting provision of the CPC.

This does not, however, entail that the arbitrators are free from the requirements of natural justice and the norms of
proof. The Andhra Pradesh High Court has expressly declared that parties are free to agree on the process to be
followed by the Arbitral Tribunal in "Hindustan Shipyard Limited Vs. Essar Oil Limited and Ors." 1 When such a
procedure is not predetermined, the Arbitral Tribunal must follow the statutory procedure, which requires it to fairly
assess all of the evidence in the record and reach a decision that is consistent with the terms of the dispute.

It has been ruled that the principles of natural justice, fair play, equal opportunity for both parties, and to pass an
order, interim or final, based upon the material or evidence placed by the parties on the record and after due analysis
and/or appreciation of the same by giving the terms of the contract a proper and correct interpretation, subject to the
laws, simply cannot be overlooked. Furthermore, it has been ruled that parties may choose their own arbitration
process with their cooperation. The same has also been reiterated by the Bombay HC in the case of “vinayak vishu
sahasrabudhe v BG Gadre and ors”2

Facts before an arbitral tribunal may be admitted by either party or may be established using oral evidence,
documentary evidence, affidavits, etc. There are broadly two methods to record evidence in arbitration proceedings.
They are in the form of admission/denial documents by the parties and the witness statement evidence and the expert
statement evidence. Despite CPC not being strictly followed, general principles followed in arbitral proceedings still
mimic that of those found in the CPC. Assuming that the arbitration agreement specifically provides for any rules
that may provide for any additional methods and that such rules do not directly breach the principles of natural
justice, such alterations may be considered by the arbitral panel.

Evidence may also be differentiated into-

1
Hindustan Shipyard Limited Vs. Essar Oil Limited and Ors 2005 (1) ALD 421, 2005 (1) ALT 264, 2005 (1)
ARBLR 454 AP
2
Vinayak Vishnu Sahasrabudhe vs B.G. Gadre And Ors AIR 1959 Bom 39, ILR 1959 Bom 87
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Extrinsic evidence

Admitted by the tribunal to determine any issues in regards of excessive jurisdiction and is admitted to resolve any
ambiguities.

Fresh evidence

May be admitted when evidence such that-

could not have been obtained for trial with reasonable diligence.

Might influence the outcome of the decision.

Must be credible.

Expert evidence

Opinions on issue provided by experts in their respective fields.

When no oral hearings are held-

Section 29(B) (3a) of the arbitration and conciliation act provides for a fast track procedure which takes says-

“The arbitral tribunal shall decide the dispute on the basis of written pleadings, documents and submissions filed by
the parties without any oral hearing”

In situations like these any evidence and all facts of the case are to be determined via documentary evidence that are
themselves confirmed by the affidavit of any relevant signatories.

Relevant parts from section 23 of the same act talks about statements of claim and defense. They also state –

(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.
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When oral hearings are held-

Even when hearings are held, documentary evidence and affidavits (which are basically signed statements claiming
the information provided to be the truth and free from any embellishment) form a major chunk of adduced evidence.

For example, affidavits are required to prove fact witnesses. The purpose being that the affidavit remains as a
statement that reinforces and encourages the witness to speak only truth with complete honesty.

When experts are called to provide statements that may be crucial in determining a case, they too do so via affidavits
which are constituted by facts related to the issue and their opinion regarding the same.

As arbitration matters are not necessarily ruled over by the CPC there is no compulsion to attach affidavits. But the
stage at which evidence is produced in one of the last and thus most quintessential stages of the proceedings to make
ones claim. Arbitrators often encourage clients to provide affidavits to gain the trust of the tribunal. Thus it usually
in the legal interests of a party to provide evidence along with affidavits.

This is also reinforced by the fact that the supreme court in Canara Nidhi Limited vs M. Shashikala 3 determined that
under section 34, cases may be decided only on the basis of pleadings and evidence already placed before the
tribunal and that additional evidence may only be provided for in exceptional circumstances.

The arbitration and conciliation act also provides under section 19(4) that -

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

This section under the clause also in a way empowers the evidence act in terms of arbitration proceedings due to the
fact that affidavits cannot be relied upon until the witness who gave it is available for cross-examination.

While cpc does not put any compulsion on arbitration proceedings, in the lack of any specified measures in the
arbitration agreement, general rules from the civil procedure code are still followed. Thus any evidence provided by
a party can be refuted by the opposing party too. But they may not simply refuse the evidence but state their reasons
for doing so and provide further evidence if any (with an affidavit) to prove their case. This is because of the burden
placed by sub rule 3 of Rule 4 of Order XI of the CPC.

3
Canara Nidhi Ltd. v. M. Shashikala, (2019) 9 SCC 462
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Evidence via court

Section 27 of the arbitration and conciliation act also provides for court assisted methods of collecting evidence. It
provides-

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 heard 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.

Any person who refuses to give such evidence or refuses to cooperate with the proceedings may be made subject to
any of the disadvantages or penalties in the proceedings or by the court subject to jurisdiction.

Through various judgments, it has been determined that discretion available to courts while considering an
application under section 25 is minimal.

This doesn’t imply that the arbitration tribunal may grant approvals arbitrarily even when there is no case made by
the facts and circumstances of the case. The tribunal is to apply itself, come to a conclusion about the given facts and
evidences and only if satisfied as the master of the case, may they approve any such additional evidence.