DR.

RAM MANOHAR LOHIA NATIONAL

LAW UNIVERSITY

2021-2022

Project Topic :

Compelling Witness Evidence in Support of Arbitration

Proceedings as per Common Law

PRESENTED TO:
MR. PRASENJIT KUNDU
ASSISTANT PROFESSOR (LAW)

PRESENTED BY:
SIDDHANT GUPTA
ENROLL NO. - 180101135
 Table of Contents
ACKNOWLEDGEMENT ......................................................................................................... 3
INTRODUCTION ..................................................................................................................... 4
WITNESSES IN ARBITRATION ............................................................................................. 6
COMPELLING THE TAKING OF EVIDENCE UNDER COMMON LAW .......................... 7
COURT’S ASSISTANCE IN CONDUCT OF ARBITRAL PROCEEDINGS IN INDIA ........ 9
CONCLUSION ........................................................................................................................ 11
 ACKNOWLEDGEMENT

I have taken efforts in this project. However, it would not have been possible without the kind
support and help of many individuals and organizations. I would like to extend my sincere
thanks to all of them.

I am highly indebted to Mr. Prasenjit Kundu for his guidance and constant supervision as well
as for providing necessary information regarding the project & also for his support in
completing the project.

I would like to express my gratitude towards my parents & members of ‘Dr. Ram Manohar
Lohia National Law University’ for their kind cooperation and encouragement which helped
me in completion of this project.

My thanks and appreciation also go to my colleagues in developing the project and people who
have willingly helped me out with their abilities.

SIDDHANT GUPTA
 INTRODUCTION

Arbitration is based on consent. An arbitral tribunal derives its powers from an agreement
between the parties. Whilst this grants procedural flexibility, it can pose difficulties if
witnesses need to be compelled to attend hearings, or if crucial documents are in the hands of
a non-party. Obvious problems exist if a key employee no longer works for a party and cannot
be directed to assist, or if a party employed an independent contractor who is unwilling to
become involved in the arbitration.

The Arbitration Act 1996 (the “Act”) provides some ways to redress this balance. Two
sections of the Act allow the English Court to compel witnesses to give evidence and/or to
produce documents for hearings. This power is not just confined to arbitrations with their seat
in England. Section 2(3) of the Act provides that these powers can apply to an arbitration with
its seat outside England & Wales or Northern Ireland. In some cases, where a witness is
unwilling to give evidence, this can be addressed by either :

(1) obtaining similar evidence from another source (witness or documentary);

(2) if the witness is under the control of another party to the arbitration, an application
to the arbitral tribunal (which can be invited to draw adverse inferences if the
other party fails to call that witness); or

(3) drawing attention to the other party’s failure to call a particular witness whose
evidence would clearly have been relevant (and inviting the tribunal to draw
adverse inferences on that basis).

Sometimes, however, critical evidence can only be obtained from a particular witness,
and if that witness is unwilling to provide evidence voluntarily, the arbitral tribunal’s powers
to assist are limited. In such cases, the party seeking to obtain the evidence may wish to
consider an application for the witness to be compelled to give evidence, made by the party or
the arbitral tribunal either :

(1) directly to the relevant court of the country in which the witness is located (the
‘requested court’), where this is possible as a matter of that country’s local law; or

(2) more typically, indirectly to the requested court via a court located in the seat of the
arbitration (the ‘requesting court’), where the requesting court has powers to ask for
 the assistance of the courts of the country in which the witness is located to take his
or her witness evidence by compulsion.

Given London’s position as a global financial and legal hub as well as a home for the
world’s elite, it is highly likely that witnesses and documents which may be required for
arbitral proceedings may be present in England. These powers are therefore not just relevant
to those conducting arbitrations in London. They should be considered by practitioners
worldwide. This article explores the various methods for parties to arbitral proceedings to
apply to the courts in the above circumstances.

In particular, it looks at the powers of the English courts pursuant to sections 43 and 44
of the Arbitration Act 1996 (‘the 1996 Act’). It is based on successful experience of making
an application to the English courts to compel evidence from a number of witnesses located in
Germany. Although the English courts’ powers pursuant to section 44 exist in relation to
arbitrations regardless of where they are seated, this article focuses on the use of those powers
to compel evidence from witnesses located abroad in support of arbitrations seated in London;
it addresses some of the practical considerations in making such an application, and it
considers future developments in this area.
 WITNESSES IN ARBITRATION

In India and in many other countries, arbitration does not allow the usage of either Code
of civil procedure or Evidence Act to avoid rigid and complex procedures, like the ones used
in the courts. When there is a bar to use the evidence Act in arbitrations, a question arises, how
examination of witnesses was made a part of the Arbitration procedure. The origin of
examination of oral witnesses, is the party autonomy to select the procedure of arbitration.
This is because parties to the arbitration have all the powers to decide the procedure of
arbitration, and when they do not decide, either the Rules of the chosen Arbitral Institution or
the Arbitral tribunal will decide the arbitration procedure. Even if the arbitral tribunal decides
the procedure, it cannot decide the necessity of a witness examination procedure. So, parties
have the responsibility to choose the types of proof they require to prove their case, including
examination of fact witness, examination of expert witness, independent witness, discovery,
production of documents etc., The cross examination is a part of the witness examination
process, which is there to ensure equal opportunity to both the parties. Some critics question
whether witness testimony can ever be reliable and argue that the arbitral award must be based
on the documentary evidence produced by the parties.

What this means is that a party to an arbitration can obtain a witness summons (formerly known
as a subpoena) from the English Court to:

• require a witness in England to attend to give oral evidence at an arbitral hearing;

and/or

• require such a witness to produce documents for an arbitral hearing.

It is not a requirement that the seat of the arbitration is in England, only that the arbitration
is being conducted in England. A sensible practice would therefore be to convene an arbitration
hearing in England in order to receive evidence and documents from the witness in question,
if this is permitted by the relevant arbitral rules.

A party to arbitral proceedings conducted in England, Wales, or Northern Ireland may

(with the permission of the arbitral tribunal or the agreement of the other parties) apply to the
English courts pursuant to section 43 of the 1996 Act for an order to secure the attendance
before the arbitral tribunal of witnesses located in the United Kingdom, in order to give oral
testimony or to produce documents or other material evidence.
The Act refers to the Court’s powers in litigation. These powers are limited to securing
evidence or documents for use at trial. They do not give the Court power to allow wideranging
depositions and document production for pre-trial discovery. Arbitral proceedings may not
allow for neat procedural labelling of matters as relevant to discovery or a final hearing, but
the basic distinction has to be borne in mind in establishing the limits of the assistance that the
English Court can provide.

COMPELLING THE TAKING OF EVIDENCE UNDER COMMON

LAW

Where the attendance of a witness, whether located within or outside of the jurisdiction of the
English court, is not required before the tribunal, section 44 of the 1996 Act provides that,
unless otherwise agreed by the parties, the English court has for the purposes of and in relation
to arbitral proceedings the same power of making orders about, inter alia, the taking of witness
evidence as it has for the purposes of and in relation to legal proceedings, also empowers the
court to make orders about

(1) preservation of evidence.

(2) inspection, photographing, preservation, custody, or detention of, taking samples from,
observation of or conducting experiments on property which is the subject of arbitration
proceedings or as to which any question arises in those proceedings.

(3) the sale of any goods the subject of the proceedings; and
(4) the granting of an interim injunction or the appointment of a receiver, but those powers
are not discussed further in this article.

Section 44 therefore allows for the taking of witness evidence by compulsion. However,
the English courts have no jurisdiction to provide any relief under section 44 in respect of
arbitrations carried out pursuant to the rules under the Convention on the Settlement of
Investment Disputes between States and Nationals of Other States (“ICSID”)
 Strictly speaking, the powers conferred by Sections 43 and 44 of the 1996 Act are also
exercisable in respect of witnesses located within the English jurisdiction if the seat of the
arbitration is outside England and Wales or Northern Ireland, or if no seat has been designated
or determined. However, the English court may refuse to exercise its discretionary powers
under those provisions if, in its opinion, the fact that the seat of the arbitration is (or is likely
to be) outside England and Wales or Northern Ireland makes it inappropriate to do so.

An arbitration tribunal has the power to permit a party to call witnesses, either to rely on
their evidence or to cross-examine them. The obligation of a party to comply with that power
comes under the general duty under Section 40 of the Arbitration Act, 1996 to “do all things
necessary for the proper and expeditious conduct of the arbitral proceedings1”.

However, permission to call a witness for cross-examination is unusual. It is not

appropriate for a tribunal to permit a party to call a witness from the opposing party for
crossexamination on a speculative basis, for the purpose of causing embarrassment, or for a
witness of minor importance. If a party refuses to produce a witness who is within its power,
such as an employee, the tribunal can sanction that party in accordance with its powers: for
example, by drawing adverse inferences, by giving cost consequences or, in extreme examples,
by making it a condition of that party’s continued participation in the arbitration.

This may only be done with the permission of the tribunal or the agreement of the parties;
and the procedure may only be used if the witness is in the United Kingdom and the arbitral
proceedings are being conducted in England and Wales or Northern Ireland. A party cannot
be compelled to produce documents or any material which they could not be compelled to
produce in legal proceedings, for example, privileged communications. Similarly, it is not
appropriate for a party to attempt to use this power speculatively or to obtain disclosure from
third parties.

Upon urgent applications by parties to arbitral proceedings, the English court may make
such orders as it thinks necessary to preserve evidence or assets. In non-urgent cases, however,
the court will act only on the application of a party to the arbitral proceedings (upon notice to
the other parties and to the tribunal) made with the permission of the tribunal or the agreement

1
Arbitration and Conciliation Act, Section 40 of 1996 (London), § 40
in writing of the other parties. The English court will act only if or to the extent that the arbitral
tribunal has no power or is unable for the time being to act effectively.

COURT’S ASSISTANCE IN CONDUCT OF ARBITRAL

PROCEEDINGS IN INDIA

Section 27 of the Indian Arbitration and Conciliation Act, 1996 [“1996 Act”] deals with
applications for court assistance in taking evidence in arbitration proceedings. The tribunal, or
a party with the approval of the tribunal, may apply to the court to seek such assistance.

The expression ‘court’ under Section 27 means a court as defined under Section 2(1)(e) of the
1996 Act. Section 17(2) of the 1996 Act was introduced by way of enactment of the Arbitration
and Conciliation (Amendment) Act, 2015 [the “Amendment Act”].

Section 27 is based on Article 27 of the UNCITRAL Model Law on International

Commercial Arbitration. In addition to allowing court assistance in taking evidence, Section
27(5)2 covers non-compliance with any order of the court/tribunal, refusal to give evidence,
and contempt of the tribunal as well as any other default like refusal to produce documents
directed to be produced, refusal to allow inspection of properties, etc. Such persons shall be
subject to “like disadvantages, penalties and punishment” as may be incurred for like offences
committed in suits tried before the court.

Before the enactment of the Amendment Act, a court’s assistance in this regard was
necessary, as no power had been conferred under the 1996 Act on the arbitral tribunal to
summon a witness or to issue a process. Since a tribunal cannot force (a) unwilling witnesses
to appear before it3 or (b) unwilling parties to produce documents and allow their inspection,
the parties approached the arbitral tribunal to seek the court’s assistance under Section 27 of
the 1996 Act.

2
Arbitration and Conciliation Act, No. 26 of 1996 (India), § 27(5)
3
RUSSELL ON ARBITRATION 207-208 (22 ed. 2002)
 However, before applying to a court or allowing for an application to be filed before a
court, the arbitral tribunal (while adjudicating upon an application for assistance in taking
evidence) is required to apply its mind and cannot act mechanically.4

Upon an application under Section 27 being allowed by the arbitral tribunal, the court is
empowered to issue the same ‘processes’ as it may issue in suits before it.6 These ‘processes’,

to procure the evidence as sought by the arbitrator/tribunal, are in the nature of directions under
Section 31 of CPC7 for the following:

(a) Issuance of summons to witnesses (akin to Order XVI Rule 1 of CPC).

(b) Orders for production of documents in custody of third parties (akin to Order XVI Rule 6
read with Order XI of CPC).

(c) Orders for inspection of documents (akin to Order XI Rule 15 of CPC).

(d) Issue commission for examination of witness (akin to Order XXVI Rule 1-2 of CPC).

(e) Issue commission for local/scientific investigation, performance of ministerial acts, sale of
movable property, examination of accounts (akin to Order XXVI Rule 9, 10A, 10B, 10C,
11, 13 onwards of CPC).

The legislative purpose of Section 27 is to ensure that parties do not suffer due to the
inherent limitations of a tribunal, as tribunals do not have the power to issue witness summons
or compel the attendance of a witness or production of documents.

The Division Bench of the Delhi High Court in National Highway Authority of India v.
Oriental Structure Engineers Ltd. held that provisions of CPC can be invoked in an application
under Section 27(3) which empowers the court to issue the same processes as it may to
witnesses before it, in a suit being tried before the court. Consequently, upon failure of
‘persons’ to comply with such processes, committing a default or refusing to give evidence
before the tribunal, ‘they’ would be subject to such like disadvantages, penalties and

4
Hindustan Petroleum Corporation v. Ashok Kumar Garg, 2007 (1) ARBLR 368 (Del).
punishments, upon a representation by the arbitral tribunal, which the court may ordinarily
impose.

Under the Arbitration Act 1899, the arbitrator had no power to summon witnesses and
procure their attendance. If the parties went in for private arbitration under the Act, it was for
them to produce witnesses before the Arbitrators. The fact that under private arbitration under
the Arbitration Act, 1899 the court had no power to summon witnesses was a grave defect in
law. Hence the legislature changed the law while it was enacting the 1940 Act.

CONCLUSION

There exist a variety of laws, rules and regulations worldwide on this debatable issue of
whether the Arbitral Tribunal has the jurisdiction to direct production of documentary
evidence, or it must go via the channel of the Court of Law. In India, the legislators have
chosen and deliberately drifted from the provisions of the Arbitration Act, 1940 which vested
power in the Arbitral Tribunal to direct production of documentary evidence.

The Tribunal does not possess any remedial measure against defaulting parties, persons
or authority. When a person is directed by the Tribunal to produce any evidence and such
person acts in contempt, the Tribunal does not have any authority to compel such production,
leaving the proceedings stalled and the Tribunal helpless, effectively resorting to the Court to
take action against such contempt.

When Sections 19 and 27 of the Arbitration and Conciliation Act, 1996 are read together,
it is obvious and apparent that the Statute drafters intended for the Arbitral Tribunal to not
have any power with respect to directing production of evidence barring the application made
to the Court of Law, either on its own motion or on a request made to it by the parties.
Therefore, it is an absolute withdrawal of powers from the hands of the Tribunal that limits its
jurisdiction to matters of quality and quantity of evidence alone and not extending to
production of the evidence.
 The 1996 Act of England allows the tribunal to give permission to a party to apply to
court for an order compelling a non-party to give evidence. The processes of obtaining such
evidence for use in arbitral proceedings from non-parties are broadly similar to the powers that
may be invoked in litigation. The powers conferred by Sections 43 and 44 of the 1996 Act are
also exercisable in respect of witnesses located within the English jurisdiction if the seat of the
arbitration is outside England and Wales or Northern Ireland, or if no seat has been designated
or determined. However, the English court may refuse to exercise its discretionary powers
under those provisions if, in its opinion, the fact that the seat of the arbitration is (or is likely
to be) outside England and Wales or Northern Ireland makes it inappropriate to do so.