ADMISSIBILITY OF EVIDENCE IN ARBITRATION 

 In arbitration proceedings in India, the admissibility of evidence is governed by the
Arbitration and Conciliation Act, 1996, along with general principles of law and rules of
procedure. The key aspects of admissible evidence in Indian arbitration proceedings are as
follows:

 

1. Arbitration and Conciliation Act, 1996

  •  The Act does not explicitly lay down rules on evidence but provides the framework for
    arbitrators to conduct proceedings, including the power to admit or exclude evidence.
  • Section 19 of the Arbitration and Conciliation Act gives the arbitral tribunal the
    discretion to determine the procedure to be followed, which includes the manner of
    receiving evidence.

 

2. Principles of Evidence

  •  Indian Evidence Act, 1872: While the provisions of the Indian Evidence Act are not
    directly applicable to arbitration proceedings, they provide useful guidance on the
    admissibility of evidence, particularly where the parties have agreed to follow the rules
    of evidence. Some provisions may be applicable depending on the nature of the
    arbitration (for example, documentary evidence).
  • Arbitrators are generally expected to apply principles of fairness and justice, and can
    take a more relaxed approach than the formal courts in accepting evidence.

3. Types of Evidence in Arbitration

  •  Oral Evidence: Testimony given by witnesses. Though the procedures are more
    flexible, witnesses may be called to testify, and their testimony can be heard in person,
    or sometimes in writing.
  • Documentary Evidence: Documents are the most common form of evidence in
    arbitration. These may include contracts, correspondence, invoices, reports, and other
    records.
  •  Expert Evidence: In cases requiring specialized knowledge, expert witnesses may be
    called to provide their opinions or analyses.
  • Electronic Evidence: Electronic records, such as emails, text messages, and data, can
    be admitted as evidence if they comply with the requirements of authenticity and
    relevance.

 

4. Standards for Admissibility

  • Relevance: Evidence must be relevant to the issues at hand.
  • Authenticity: Documentary evidence must be genuine, and the party submitting
    evidence must demonstrate its authenticity. In the case of electronic records, it must be
    proved that the evidence is not tampered with.
  • Confidentiality: Certain types of evidence, especially business-sensitive documents,
    may be subject to confidentiality agreements. Arbitral tribunals often manage
    confidentiality through appropriate orders.

 

5. Role of the Arbitral Tribunal

  • The arbitral tribunal has broad discretion in determining the rules of evidence, including
    whether to accept or reject certain evidence.
  •  Arbitrators are not bound by the strict rules of evidence that apply in court, though they
    must ensure the fairness of proceedings.
  • The tribunal can decide whether evidence must be presented in writing, whether
    witnesses should appear in person, and whether documents should be submitted as part
    of the case.
  • If evidence is disputed, arbitrators can rule on whether it can be admitted, and the
    weight to be given to it.
    .

 

6. Hearing and Presentation of Evidence

 

  • Arbitration hearings can be held in a formal setting, or more informally, depending on
    the preferences of the parties and the nature of the dispute.
  • Parties generally submit written statements, which may include evidence, prior to
    hearings.
  • Oral submissions and presentations of evidence may be made during hearings. The
    arbitral tribunal may request specific evidence from the parties if necessary.

7. Documentary Evidence Rules

  •  Parties are generally required to exchange documents at the outset of the arbitration
    process.
  • The tribunal may establish deadlines for the submission of documents and may decide
    to exclude documents submitted late unless justified.

 

8. Exclusion of Evidence

  • Non-compliance with Procedural Orders: If a party fails to comply with procedural
    orders on evidence, the tribunal may exclude such evidence.
  • Irrelevant or Inadmissible Evidence: Arbitrators have the discretion to exclude
    evidence that is irrelevant, not authenticated, or otherwise inadmissible.

9. Flexibility and Informality

  • Arbitration proceedings in India allow for flexibility and a degree of informality in the
    presentation and admission of evidence. The rules governing arbitration in India are
    designed to ensure that evidence is presented in a manner that is fair and equitable to
    both parties.

10. Role of the Courts

  • Indian courts generally do not intervene in the arbitral process regarding the
    admissibility of evidence unless there is a challenge to the award or procedural fairness
    (Section 34 of the Arbitration and Conciliation Act).
  • Courts may intervene if they find that the tribunal acted beyond its powers or violated
    natural justice principles when admitting or excluding evidence.
    In conclusion, admissible evidence in Indian arbitration follows broad principles laid out in the
    Arbitration and Conciliation Act, general evidentiary principles, and the procedural
    discretion of the arbitral tribunal. Evidence must be relevant, authentic, and in line with the
    tribunal’s procedures, ensuring fairness for both parties involved in the arbitration.

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