Validity and admissibility of evidence in an arbitration proceeding – what law?

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      Anonymous
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      Under which provisions of law, an arbitral tribunal can determine the validity and admissibility of evidence in an arbitration proceedings? Are the provisions of Civil Procedure Code and Evidence Act applicable fully to the arbitration proceedings?

    • #1355

      The relevant provision for determining the validity and admissibility of evidence is under Section 19 of the Arbitration and Conciliation Act, 1996.

      As per this provision, the following important aspects may be noted in this regard:

      • The parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its proceedings.
      • If there is no agreement between the parties, then subject to the provisions of the said Act, the arbitral tribunal may conduct the proceedings in the manner it considers appropriate.
      • For this purpose, the arbitral tribunal may also determine the admissibility, relevance, materiality and weight of any evidence.
      • It is pertinent to note that the arbitral tribunal is not bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872, in this regard. This means that the arbitral tribunal need not be constrained by the technicalities of these two Acts, i.e., the CPC and Evidence Act. However, generally speaking, the spirit of these laws may be followed in arbitration proceedings even though arbitration tribunal is not bound by them (this is so because these two Act lay down the basic procedures for a fair and just trial).

      It may further be noted that in the case of Sohan Lal Gupta v. Asha Devi Gupta, (2003) 7 SCC 492, the Supreme Court has held that there cannot be any dispute with regard to the proposition of law that the parties would be entitled to a reasonable opportunity of putting their case. A reasonable opportunity would mean that a party must be given an opportunity to explain his arguments before the arbitration tribunal and to adduce evidence in support of his case.

      The Supreme Court further held that for constituting a reasonable opportunity, the following conditions are required to be observed:

      1. Each party must have notice that the hearing is to take place.
      2. Each party must have a reasonable opportunity to be present at the hearing, together with his advisers and witnesses.
      3. Each party must have the opportunity to be present throughout the hearing.
      4. Each party must have a reasonable opportunity to present evidence and argument in support of his own case.
      5. Each party must have a reasonable opportunity to test his opponent’s case by cross-examining his witnesses, presenting rebutting evidence and addressing oral argument.
      6. The hearing must, unless the contrary is expressly agreed, be the occasion on which the parties present the whole of their evidence and argument.

      Section 19 of the Arbitration and Conciliation Act, 1996, is reproduced below:

      19. Determination of rules of procedure.—(1) The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (V 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.”

           


      Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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