Section 26 and 27 of Arbitration and Conciliation Act | Law Optional Notes for UPSC PDF Download

Section 26 of Arbitration and Conciliation Act - Expert appointment by arbitral tribunal

Statement

• In the absence of any agreement between the parties, the arbitral tribunal has the authority to:
  (a) Select one or more experts to provide reports on specific matters determined by the tribunal, and
  (b) Require a party to provide the expert with relevant information or to produce, or allow access to, any pertinent documents, goods, or other property for inspection.
• If requested by a party or deemed necessary by the arbitral tribunal, the expert must, following the submission of their written or oral report, participate in an oral hearing where parties can pose questions and present their own expert witnesses to address the issues in question.
• In the absence of any agreement to the contrary between the parties, the expert must, upon request of a party, provide access to all documents, goods, or other property provided to them for the preparation of their report.

Appointment of Expert

If there's no agreement between the parties regarding the subject matter of the dispute, the arbitral tribunal has the authority to:

• Select one or more experts
• Task these experts with resolving specific issues
• Consider the findings of these experts in their deliberations

Additionally, the tribunal may instruct the party involved to:

• Provide the expert with any pertinent information
• Produce and grant access to all relevant documents, goods, or other materials for inspection to facilitate the expert's work.

Evidence and Expert

If the parties haven't reached an agreement, the arbitral tribunal, upon the expert's written or oral request, shall:

• Allow the expert to participate in the oral arbitration proceedings
• Permit the parties to question the expert who provided the report
• Allow the parties to present their own expert witnesses to offer their perspectives on the issue.

Expert advice typically comes in the form of a written report, which is produced before the hearing, and the expert is subject to cross-examination during the hearing. The tribunal's direction should specify a deadline for the submission of reports or a date that can be determined precisely based on other events in the arbitration.
Arbitrators are permitted to seek technical assistance as necessary to fulfill their duties. However, they must avoid allowing outside individuals to influence their decisions on matters of fact. In cases involving highly specialized fields, the role of an expert cannot be disputed. It's essential for the expert to provide all relevant materials and scientific criteria to the court so that it can form an independent judgment, even if it lacks expertise in the subject matter.

Section 27 of Arbitration and Conciliation Act-Court assistance in taking evidence

Statement

1. The arbitral tribunal, or a party with the approval of the arbitral tribunal, may seek assistance from the court in obtaining evidence.
2. The application to the court must include:
   (a) The names and addresses of the parties and arbitrators involved.
   (b) The general nature of the claim and the relief sought.
   (c) Details of the evidence to be obtained, including:
   i. The names and addresses of witnesses or expert witnesses and the subject matter of their testimony.
   ii. Description of any documents to be produced or property to be inspected.
3. The court, within its jurisdiction and in accordance with its evidence-taking procedures, may execute the request by ordering the evidence to be provided directly to the arbitral tribunal.
4. When issuing such an order, the court may use the same processes for summoning witnesses as it does in lawsuits before it.
5. Individuals who fail to comply with the court's processes, commit any other default, refuse to provide evidence, or engage in contemptuous behavior towards the arbitral tribunal during proceedings, may face penalties similar to those imposed for similar offenses in court trials.
6. The term "Processes" in this section includes summonses and commissions for witness examination, as well as summonses to produce documents.

Evidence Record

The court's assistance in recording evidence during arbitral proceedings can be sought under the following circumstances:
(i) If requested by the arbitral tribunal.
(ii) If a party requests it and the arbitral tribunal approves the request.
A request for recording evidence may be initiated by:
(i) The arbitral tribunal itself.
(ii) Any party with the consent of the arbitral tribunal.
If a witness is found guilty of contempt towards the arbitrator, the court has the authority to impose punishment.
The Arbitration Act does not specify a procedure for serving notices through the court, so the process should follow the procedure outlined in the Civil Code.
If a witness refuses to attend and give evidence, the tribunal cannot compel their attendance. However, the tribunal may draw adverse inferences from their failure to appear. A party can resort to using court procedures to compel the witness's attendance if necessary.

Particulars Required

The arbitral tribunal, either on its own initiative or upon the request of the parties involved in the arbitration, may seek the aid of the court in recording evidence, and it must provide specific details, including:
(a) The names and addresses of all parties and arbitrators involved.
(b) The general nature of the claim being made and the relief being sought.
(c) Details regarding the evidence to be obtained, including the names and addresses of individuals involved, as well as any relevant documents or property related to the matter.

Permission of Arbitrator for Court Approach

According to subsection (3), the role of the court is limited to assisting in the execution of recording evidence, and it does not possess the authority to directly order the production or recording of evidence. Therefore, if a party believes it necessary to obtain summonses for the appearance of witnesses, the arbitrator should not deny this request, especially if it is crucial to the case, as highlighted in the case of Lilit Madhvan vs. Building Committee, Council of Institute of Company Secretaries of India (1995). If the arbitrator refuses such a request, the aggrieved party can file an objection under section 34 of the Act. However, the Act does not provide further guidance or procedures in the event of such refusal.