Alternative Dispute Resolution

Module V
CONDUCT OF ARBITRAL PROCEEDINGS
Semester VI, Section C
Class Summary
Mr. S.K.Sinha
Faculty of Law, HNLU

Equal Treatment of Parties
The parties are free to agree on the date of commencement of arbitral
proceedings in respect of their dispute. If the agreement is silent 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
[ Section 21].
Section 18 advocates that the parties shall be treated with equality and each
party shall be given a full opportunity to present his case.



Determination of rules of procedure
Section 19 of the Act advocates that the arbitral tribunal shall not be bound by the Code of Civil
Procedure, 1908 or the Indian Evidence Act, 1872. That means, it is optional to the arbitral tribunal
to adopt the Civil Procedure Code and the Evidence Act, of course, subject to the agreement of the
parties. The parties are at freedom to decide the procedure. If they do not formulate the procedure,
the arbitral tribunal can conduct the proceedings in the manner it considers appropriate [Section
19(3)]. In such a case the arbitral Tribunal has the power to determine the admissibility, relevance,
materiality and weight of any evidence [Section - 19 (4)]. One significant point for consideration is
that Section 19 advocates that the arbitral tribunal shall not be bound by the Code of Civil
Procedure and the Evidence Act and it does not state that these Statute shall not apply. Thus, the
arbitral tribunal cannot ignore evidence of the case which is essential for adjudication and rendering
of the award. It is left to the discretion of the arbitral tribunal subject to the consent of the parties
either to adopt or do away with the application of these statutes. The arbitral tribunal or the parties
can formulate a simpler procedure. Adducing evidence in whatever form it may be, cannot be
avoided totally as the arbitral tribunal has to necessarily decide the issued based on the evidence
presented. Basically the procedure for adducing evidence and the categorization of evidence as
primary evidence and secondary evidence and such other things need not be followed. Same is the
case in following Code of Civil Procedure. The arbitral tribunal can conduct the proceedings as
informally as possible.

Place of arbitration
As provided under Section 20 of the Act, the parties are at liberty to agree on
the place of arbitration. Failing any such agreement, the arbitral tribunal shall
decide the place, of arbitration. While determining the place the arbitral tribunal
should give proper consideration to the circumstances of the case including the
convenience of the parties [ Section 20 (2)].
Notwithstanding the provisions under Sub- section (1) and (2) to Section 20,
the arbitral tribunal may, unless otherwise agreed by the parties, meet at any
place it considers appropriate for consultation among its members, for hearing
witnesses, experts or the parties, or for inspection of documents, goods or other
property.


Language of Arbitral Proceedings
As provided under Section 22 of the Act, the parties are free to agree upon the
language or languages to be used. Otherwise, the arbitral tribunal shall
determine the language issue [Section 22(2)].
The determination of language pertains to written statement by a party, any
hearing and any arbitral award, decision or other communication by the arbitral
tribunal [ Section 22(3)]. The arbitral tribunal is empowered to order that any
documentary evidence shall be accompanied by a translation into the language
or languages agreed upon by the parties or determined by the arbitral tribunal.

Statement of Claim and Defence
In arbitral proceedings the most important documents are statement of claim filed by
claimant and the statement of defence filed by the respondent. The party who moves
for arbitration and sets out claims is called claimant and the person against whom
the claim is filed is called the Respondent or the Opposite Party. While the
claimant files a claim statement which contains the details of his grievance, the
dispute and the evidence thereof, the respondent meets the statement of claim with
his statement of defence. He counters the claim with the details given in the
statement of defence. Further both the parties also may file the necessary documents
in support of their respective claim/ defence statements. The respondent may also
set a counter claim against the claimant. The contentions of the respective parties
obviously must be supported by proper evidence.
Under the provisions of Section 23 of the Act, 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 of each issue and the relief or remedy sought, and
the respondent shall state his defence in respect these particulars, unless the parties
have otherwise agreed as to the required elements of those statements.
Section 23 (2) of the Act states that 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. 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.
Hearing and written proceedings
After filing of the necessary papers the next important part of arbitral proceedings
is hearing of the case and considering the documentary evidence. The normal
procedure adopted is that after presentation of claim statement and the defence
statement, the arbitral tribunal hears the parties and receive written arguments.
Adducing of oral evidence depends upon the agreement failing which the arbitral
tribunal is empowered to decide on the permissibility of adducing oral evidence.
Section 24 of the Act contains the relevant provisions pertaining to hearings and
written proceedings.
Under these provisions, unless otherwise agreed by the parties, the arbitral tribunal
shall 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 [Section 24 (1)]. However, Unless the parties have
agreed that no oral hearing shall be held, the arbitral tribunal shall hold oral
hearings, at an appropriate stage of the proceedings, on a request by a party
[Section 24 (1)].
The parties should 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 [Section 24 (2)].
Further, 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 hall be communicated to the parties [Section 24(3)].
Expert Appointment by Arbitral Tribunal
Under the provisions of Section 26 of the Act, the parties are free to agree on
the issue of appointing any expert by the arbitral tribunal. Otherwise
(a) One or more experts may be appointed to report on specific issues to be
determined by the arbitral tribunal;
(b) And further the arbitral tribunal may 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;
(c) the expert who delivers his report can be subjected to cross examination by
any of the parties.
Section 26(2) provides that 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
witness in order to testify on the points at issue. 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. So, by
virtue of the provisions under Section 26 of the Act, the arbitral tribunal can
take the assistance of an expert to effectively adjudicate the matter before it.
Thank you for your time
soumyakanti.lws@gmail.com
www.hnlu.ac.in