Court Assistance in Taking Evidence
Why is court assistance necessary or relevant in arbitration proceedings?
There may be situations when parties do not cooperate with the tribunal during the evidence stage. For example, they may not produce a document, or a witness may not appear before the Tribunal despite being summoned multiple times.
Although the Tribunal is not bound to follow the rules of the Code of Civil Procedure and the Evidence Act, there is no provision under the Arbitration and Conciliation Act that gives the tribunal the power to compel production of documents and summon witnesses in the same way that a civil court can. In contrast, there are several other bodies (not connected with arbitration) such as Lok Adalats or Internal Complaints Committee of an organization under Sexual Harassment of Women at Workplace (Prevention, Prohibition or Redressal) Act, 2013, or regulatory bodies which have the power to compel attendance of witnesses and production of documents.
The arbitral tribunal has the power to issue orders to parties to call a witness or produce a document, but where something is not directly in control of the parties, the tribunal cannot compel its production or attendance of a witness.
Hence, in such situations, for an arbitral tribunal, assistance of the court may be necessary to obtain evidence.
Section 27 of the A & C Act states the procedure that one has to follow for asking the Court for assistance in taking evidence in an arbitration proceeding. Either the Arbitral Tribunal or any party after taking approval of the Tribunal may apply to the court for assistance in taking evidence.
Note that this procedure cannot be utilized by a party alone if the arbitral tribunal considers a document or a witness irrelevant, because the approval of the tribunal is mandatory.
Powers of the Court upon receiving an application under Section 27
After the application is made, the Court may:
- accept the application and conduct all evidence taking procedures by itself
- consider passing the same authority to a neutral administrator
- order that the evidence be provided directly to the Arbitral Tribunal
- decide on the procedure that the Tribunal and the parties have to abide by, but
the execution of the procedure has to be done by the Tribunal itself.
Once the court decides on the above, any subsequent non compliance or default may attract similar penalties, punishment as they can attract in a court of law (perjury, contempt etc.).
This section helps the arbitrators by facilitating a fair procedure for them to receive documents and testimonies of witnesses through summons by court of law, which otherwise was made difficult by non-cooperative parties in arbitration.
The application must be made to a “court” which has civil jurisdiction over the subject matter of the terms of reference. If the arbitration clause specifies jurisdiction exclusivity to a specific city, then the appropriate court of that city should be approached. If the same has not been specified, then the Court of law of the city where the documents lie or the witness lives, must be approached. The court where the seat of the arbitration is situated can also be approached for any such ancillary applications facilitating the arbitration procedure.
In the 1940 Act, the arbitrator was equipped only to take help of the Court in sending summons to non cooperative witnesses or the parties, but the 1996 Act has made it possible for the courts to even record and appreciate the evidence.
This section is also beneficial in situations where the Arbitrators might be unequipped to adjudicate an issue. Consequences where any sense of bias or prejudice may be visible in connection to the evidence that may be supplied, the court can turn out to be a neutral adjudicator for the same.
For example, in an arbitration where the arbitrator’s relative is appointed as an Independent Expert by the parties and there is a risk that the arbitrator’s bias might come into place, then the tribunal itself, or a party with the approval of the tribunal may approach the court to record evidence.
Similarly in situations where the arbitrator is not equipped to judge the evidence provided by the parties, then he can approach the Court to record and appreciate the evidence.
This section can also be used where certain authorities of the government are called as witnesses in the course of the arbitration and asked to produce confidential documents. For the sake of trust and confidence in the court in such situations, the court can send summons to the respective party to produce such documents. The government officers cannot be forced to produce confidential documents but the parties relying on it can be summoned to do the same. Hence court intervention can provide a sense of trust to the parties.
It must be noted that the summons by the court only apply to the witnesses and not to the parties in evidence taking.
For example, an arbitrator cannot use this section to compel parties to attend hearings. The arbitrator can only use this section for assistance of court to send summons for examination or cross examination of the witness.
While sending summons by the court, contrary to Section 19, CPC will be applicable. The Court shall obviously be required to follow the method provided under CPC and hence all the summons will be issued in accordance with Order 5 of CPC.
This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being.