When is evidence by affidavit adduced?
Unless the other party admits certain facts, they will need to be established before the tribunal. Facts can be established using oral evidence, documentary evidence and affidavits.
Arbitration where oral hearings are excluded
In certain arbitrations, the parties decide not to keep any oral hearings at all. For example, the A&C Act itself provides for fast track arbitration under Section 29B where all the arguments and evidence is provided by way of written pleadings and documents.
In such situations, all facts must ideally be established by documentary evidence (of the actual documents) or by affidavit. The documents themselves are confirmed by the affidavit of the relevant signatories. It becomes imperative for the Tribunal to ask for evidence by way of affidavits since there shall be no examination or cross examination of witnesses or documents.
Arbitrations with oral hearings
Evidence by affidavit can also be applicable when oral hearings are conducted. Affidavits are basically declarations that the provided information is truthful and based on the knowledge of the person giving testimony. Parties and arbitrators are free to choose their own procedure. But arbitrators, in order to gain trust and confidence may ask for the parties to submit evidence alongwith affidavits. The Tribunal, while in an oral hearing, may also ask for certain additional documents to be submitted on the next day/hearing to further clarify the issue at hand. These documents may be submitted along with an affidavit, if so asked.
Primarily, evidence by affidavit is provided to record the statement of a ‘fact witness’. A fact witness is someone who proves the claim by relying on facts of what happened in that particular situation.
The witness statement to be taken on an affidavit serves the purpose of the witness being completely honest and true about the facts that he is trying to prove. A common mistake made in most domestic arbitrations is the reproduction of all claims already mentioned in the statement of claims to the evidence affidavit.
For example, if one of the parties is alleging a payment default, whereas the other party has argued that the first party had clearly communicated a waiver of its rights (or condoned the delay). The second party may state this on affidavit.
Taking another situation in consideration, if one of the parties allege late payment of interest at 30% rate. But the other party produces a witness who claims that in the meetings before the dispute arose, the representatives of the opponent had agreed on an 18% interest. This witness can be called a fact witness and his testimony can be submitted on affidavit so that the truthfulness of the witness is not questioned.
This makes the affidavit very lengthy and the process extremely strenuous. Such long affidavits also put unnecessary pressure on the other party in cross examination of the witness. With the 12 month strict timeline imposed by the 2015 Amendment Act, one hopes that such aversions are done away with in domestic arbitrations.
Similarly, in technical and complicated arbitrations, the statement of an expert witness is also provided by way of affidavit. The affidavit normally contains the facts associated to the specific issue that the witness is proving, coupled with their scholarly expert opinion on the same. The arbitrators also have a right to question the expert witnesses and clarify their technical doubts on the subject of the dispute. In such cases, the expert report affidavit comes in handy because the Tribunal can refer to it in order to gain clarity on the subject, in consequence to the dispute.
In certain arbitrations, the Tribunal comes across as very rigid when they expect the Parties to submit every declaration, application, statement etc. in the form of affidavit. If they are overused, since these procedures come from the application of court procedure into arbitration, they make arbitration highly time consuming and unwieldy.
It is not necessary to submit evidence by affidavit in all circumstances. Arbitrators may accept evidence without affidavit as well. It is for the parties’ counsel to sense whether certain facts need to be asserted through affidavit. Depending on the situation and gaging the Tribunal’s conduct, it would be advisable to submit evidence along with an affidavit/verification that the submitted information is true to the best of one’s knowledge. As a legal strategy, neither of the parties want to rub the Tribunal the wrong way. It is also important to gain the Tribunal’s trust and confidence. Hence submitting all the evidence by affidavit can be considered one of the options to instill confidence to the Tribunal.
If the documentary evidence is not submitted by affidavit, then only the document including a cover page describing and summarising it is submitted. It is advisable to substantiate the issue at hand for which the particular document is going to be referred, when additional documents are submitted as evidence.
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.