Evidence in Arbitral Proceedings
Arbitration is a mechanism in which a dispute is resolved by a impartial third party whose decision is final and binding upon the parties.
Kinds of Arbitration
The kinds of arbitration are as follows:-
- Domestic Arbitration
- International Arbitration
- International Commerical Arbitration
- Ad hoc arbitration
- Institutional arbitration
- Fast track arbitration
Indian Evidence Act ,1872
According to this act , all the statements which the court permits or requires to be made before it by witnesses , in relation to matters of fact under inquiry , such statements are called oral evidence.
All documents including electronic records produced for the inspection of the court , such documents are called documentarty evidence.
Section 5 of this act states that Evidence may be given of facts in issue and relevant facts : Evidence may be given in any suit or proceedings of the existence or non existence of every fact in issue and of such other facts as are hereinafter declared to be relevant , and of no others .
Section 62 of this act states the primary evidence : Primary evidence means the document itself produced for the inspection of the court.
Section 65 of this act states the cases in which secondary evidence relating to documents may be given .
Secondary evidence is evidence that has been reproduced from an original document or substituted for an original item.
Section 65 B of this act states the admissibility of electronic records . The electronic evidence includes email , text messages, files and documents extracted from hard drives , audio and video files .
Arbitration and Concillation Act , 1996
Section 19(1) in this act states that the arbitral tribunal shall not be bound by the Code of Civil Procedure , 1908 or the Indian Evidence Act, 1872.
Section 23 in this act states the Statement of Claims and defences.
Section 27 in this act states the court assistance in taking evidence.
Section 28 in this act states the rules applicable to substance of dispute
1) Where the place of arbitration is situate in India ;
a) in an arbitration other than an international commerical arbitration the arbitral tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in India.
Role of arbitrator while taking evidence.
- The arbitrator and parties are not bound to follow the strict rule of CPC , parties are allow to follow the rules which will be relevant and convenient.
- The arbitrator has to see that the rules framed should not be in violation of public policy.
- The award will become invalid and inoperative , if there is violation of principle of natural justice.
Evidence to be presented during the arbitral proceedings
Parties are required to present those evidence only which can support their claims . Irrelevant proofs are inadmissible by the arbitrator . The evidence can be electronic evidence . The evidence given should be labelled in a certain order.
Two method of recording evidence in an arbitral proceedings
- Admission and denial of document by the parties.
- Witness Statement Evidence
In admission and denial of document by the parties : The Arbitral Tribunal shall be entitled to determine the admissibility , relevancy and evidentiary value of documents and matter filed by parties having regard to all the document material and evidence.
In witness statement evidence : It is a signed document recording the evidence of a witness. And this should be confirmed via direct examination or cross examination.
When can an evidence be submitted by the Arbitrator?
An evidence can be presented any time either with or without any notice also. And can be submitted in between the arguments of an arbitration or before the stage of an order also.
Hence , there is no application of evidence act to the arbitral proceedings . In India ,the arbitrator is bound to only follow the rules of evidence so that there may not be any violation of the principle of natural justice in the proceedings.