CONDUCT OF ARBITRAL TRIBUNAL(S 18 to 27)

1. EQUAL TREATMENT OF PARTIES

2. DETERMINATION OF RULES OF PROCEDURE
3. PLACE OF ARBITRATION
4. COMMENCEMENT OF ARBITRAL TRIBUNAL
5. LANGUAGE
6. STATEMENT OF CLAIM AND DEFENCE
7. HEARING AND WRITTEN PROCEEDINGS
8. POWERS OF ARBITRAL TRIBUNAL TO ENFORCE ITS ORDERS PASSED U/S
17,23 AND 24
9. POWERS OF COURT FOR ENFORCEMNT OF THE PREEMPTORY ORDERS
OF THE ARBITRAL TRIBUNAL
10. DEFAULT OF A PARTY
11. EXPERT APPOINTMENT BY ARBITRAL TRIBUNAL
12. COURT ASSISTANCE IN TAKING EVIDENCE

EQUAL TREATMENT OF PARTIES (sec 18)

The parties shall be treated with equality and each party shall be given a full opportunity to
present his case.

This section casts some duties on the Arbitral Tribunal:

- It must be independent and impartial

- Must mete out equal treatment to each party.
- Must give each party a full opportunity to present their case

The Principle of natural justice must be followed.

- Nemo judex in causa sua

- Audi Alteram Partem

There was no specific provision in the Arbitration Act, 1940, corresponding to section 18.

This section is in pattern of A.18 of the Model Law.

DETERMINATION OF RULES OF PROCEDURE (section 19)

19. Determination of rules of procedure.—

(1) The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (5 of 1908)
or the Indian Evidence Act, 1872 (1 of 1872).

(2) Subject to this Part, the parties are free to agree on the procedure to be followed by the
arbitral tribunal in conducting its proceedings.
(3) Failing any agreement referred to in sub-section (2), the arbitral tribunal may, subject to
this Part, conduct the proceedings in the manner it considers appropriate.

(4) The power of the arbitral tribunal under sub-section (3) includes the power to determine
the admissibility, relevance, materiality and weight of any evidence.

The provisions of CPC and Evidence Act must not be applied in arbitration proceedings
where mere procedure is likely to hinder speedy justice, but there should be no hesitation to
invoke them if they may be helpful in rendering justice.

Conditions under this section:

- Not bound by CPC or Evidence Act

- Freedom to parties to decide the procedure of Arbitral Tribunal
- In absence of any agreement between the parties, the Tribunal can decide its own
procedure.
- Power of tribunal- admissibility, relevance, materiality and weight of evidence.

PLACE OF ARBITRATION (section 20)

1. The parties are free to agree on the place of arbitration.

2. Failing any agreement, the place of arbitration shall be determined by the tribunal.
Regard must be given to the circumstances of the case and convenience of parties.
3. The tribunal may meet at any place for-
- Consultation among its members
- Hearing of witnesses
- Hearing of Experts or the parties
- Inspection of documents, goods or other property.

Shin satellite public co. Ltd vs Jain studios Ltd (2006)

One of the parties to the arbitration submitted that the matter should be referred to arbitration
either in London or Singapore when other arbitrations were already in progress between the
same parties. But the court said that because the arbitration agreement provided Delhi as the
venue and that part of the agreement being enforceable, the power for reference at a place
outside Delhi could not be granted.

COMMENCEMENT OF ARBITRAL PROCEEDINGS (S. 21)

Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular
dispute commence on the date on which a request for that dispute to be referred to arbitration
is received by the respondent.

The date of commencement of arbitral proceedings does not relate to arbitrators entering on
the reference or having been called upon to act as arbitrator but on receipt of request by the
respondent that the dispute be referred to arbitration for settlement. Therefore, once the
request is received by the opposite party, it is immaterial whether he assents to the request for
arbitration or not.
The date of service of notice to appoint an arbitrator will not be the date of commencement of
the proceedings.

Particulars of all disputes taken together should be referred to arbitration. If some of the
disputes arising under the terms of agreement between the parties are omitted, they cannot be
raised subsequently through another reference.

LANGUAGE

It is open to the parties by agreement to decide what language or languages are to be used in
the proceedings. If there is no such agreement, the Tribunal shall determine the language or
languages to be used.

The language finalised shall be applicable to:

- Any written statement, including a claim and a defence by a party

- Any hearing
- Any arbitral award, decision or other communication by the tribunal.

All pleadings, all applications, all statements, all orders, etc would have to be in the language
agreed upon or determined.

STATEMENT OF CLAIM AND DEFENCE (s.23 to 27)

Sections 23 to 27 lays down the procedure to be followed in arbitration proceedings.

The claimant has to file his claim stating the facts supporting his claim, the point at issue and
the relief or remedy sought. The respondent, on receiving the claim papers, has to state his
defence in respect of the particulars enumerated in the claim. The parties may agree to any
other method of bringing the elements of the dispute to the notice of the tribunal. The time for
filing papers may be fixed under the parties agreement or by the tribunal.

Claim and defence (s.23)

(1)Within the period of time agreed upon by the parties or determined by the arbitral
tribunal, the claimant shall state the facts supporting his claim, the points at issue and the
relief or remedy sought, and the respondent shall state his defence in respect of these
particulars, unless the parties have otherwise agreed as to the required elements of those
statements.

(2) The parties may submit with their statements all documents they consider to be relevant
or may add a reference to the documents or other evidence they will submit.

(2A) The respondent, in support of his case, may also submit a counterclaim or plead a set-
off, which shall be adjudicated upon by the arbitral tribunal, if such counterclaim or set-off
falls within the scope of the arbitration agreement.

(3) Unless otherwise agreed by the parties, either party may amend or supplement his claim
or defence during the course of the arbitral proceedings, unless the arbitral tribunal
considers it inappropriate to allow the amendment or supplement having regard to the delay
in making it.

The claim and defence filed by the parties within the time agreed upon by the parties or fixed
by the tribunal.

In the absence of such agreement the claimant has to state:

- The facts supporting the claim

- The points at issue
- The relief or remedy sought.

The statement of defence has to state the defence in respect of these particulars.

Counter- claim

An arbitrator should receive a counter claim as a part of the pleadings of the parties and take
into account in deciding the dispute on its merits. He should not refuse to take the cc by
saying that it is outside the agreement.

Documentary evidence

Along with their statement of claim and defence, the parties may submit all relevant
documents. They may also add references to the documents and other evidence which would
be submitted later.

Amendment of statement.

The parties, may, during the arbitral proceedings, amend or supplement their claim or defence
unless:

- The parties have agreed otherwise

- The tribunal considers it inappropriate to allow the amendment or supplement due to
the delay in making it.

HEARING OR WRITTEN PROCEEDINGS (S. 24)

(1) Unless otherwise agreed by the parties, the arbitral tribunal shall decide whether to
hold oral hearings for the presentation of evidence or for oral argument, or whether
the proceedings shall be conducted on the basis of documents and other materials:
Provided that the arbitral tribunal shall hold oral hearings, at an appropriate stage
of the proceedings, on a request by a party, unless the parties have agreed that no
oral hearing shall be held
[Provided further that the arbitral tribunal shall, as far as possible, hold oral
hearings for the presentation of evidence or for oral argument on day-to-day basis,
and not grant any adjournments unless sufficient cause is made out, and may impose
costs including exemplary costs on the party seeking adjournment without any
sufficient cause.]
 (2) The parties shall be given sufficient advance notice of any hearing and of any
meeting of the arbitral tribunal for the purposes of inspection of documents, goods or
other property.
(3) All statements, documents or other information supplied to, or applications made
to, the arbitral tribunal by one party shall be communicated to the other party, and
any expert report or evidentiary document on which the arbitral tribunal may rely in
making its decision shall be communicated to the parties.

Oral hearing

It is open to the parties to agree whether any oral hearing should be held by the Arbitral
Tribunal or not. If there is no such agreement, it is for the tribunal to decide:

- Whether to hold oral hearings for the presentation of evidence or for oral arguments,
or
- Whether the proceedings shall be conducted on the basis of documents and other
materials.

If oral hearing has not been excluded by agreement the Tribunal has to hold oral hearings at
an appropriate stage if a request is made by the parties.

Notice to the parties

The tribunal must give to the parties sufficiently advance notice:

- Of any hearing
- Of any meetings of the tribunal for the purpose of inspection of documents, goods or
other property.

Supply of documents

An Arbitral tribunal can use only such material of which both the parties are aware and which
they have an opportunity to counter. In order to achieve this end, section 23(3) makes two
provisions;

- That the tribunal shall communicate to the other party all the materials, including
statements, documents, information and applications supplied to the tribunal by one
party
- That the tribunal shall communicate to all the parties any expert report or evidentiary
material on which it seeks to rely.

DEFAULT OF PARTY (S.25)

Unless otherwise agreed by the parties, where, without showing sufficient cause,—

(a) The claimant fails to communicate his statement of claim in accordance with sub-section
(1) of section 23; the arbitral tribunal shall terminate the proceedings;
 (b) the respondent fails to communicate his statement of defence in accordance with sub-
section (1) of section 23, the arbitral tribunal shall continue the proceedings without treating
that failure in itself as an admission of the allegations by the claimant and shall have the
discretion to treat the right of the respondent to file such statement of defence as having been
forfeited;

(c) A party fails to appear at an oral hearing or to produce documentary evidence; the
arbitral tribunal may continue the proceedings and make the arbitral award on the evidence
before it.

Clause (a)- Failure to submit claim

If the claimant fails to submit the statement of his claim in accordance with the provision of
s.23 (1), the tribunal shall terminate the proceedings. The reference will be dismissed.

A decision under clause (a) is an order for termination of proceedings. The court
distinguished an order for an award. An order under this section is a termination of
proceedings without any decision on merits. An award is a termination after considering
merits of the matter under dispute.

Clause (b) - Failure to submit defence

If the respondent fails to submit the statement of defence in accordance with the requirements
of the section, the proceedings will be continued, and the award will be made on the material
and evidence before the tribunal, and the failure will not be treated as an admission of the
allegations made by the claimant.

Section 2(9) provides that a claim would include a counter-claim.

Clause (c)- Failure to appear

This clause empowers the tribunal to continue the proceedings and to give its award where a
party fails to appear at an oral hearing, or fails to produce documentary evidence.

EXPERT APPOINTED BY ARBITRAL TRIBUNAL (S.26)

(1) Unless otherwise agreed by the parties, the arbitral tribunal may—

(a) Appoint one or more experts to report to it on specific issues to be determined by the
arbitral tribunal, and

(b) Require a party to give the expert any relevant information or to produce, or to provide
access to, any relevant documents, goods or other property for his inspection.

(2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal
considers it necessary, the expert shall, after delivery of his written or oral report, participate
in an oral hearing where the parties have the opportunity to put questions to him and to
present expert witnesses in order to testify on the points at issue.
 (3) Unless otherwise agreed by the parties, the expert shall, on the request of a party, make
available to that party for examination all documents, goods or other property in the
possession of the expert with which he was provided in order to prepare his report.

COURT ASSISTANCE IN TAKING EVIDENCE (S.27)

(1) The arbitral tribunal, or a party with the approval of the arbitral tribunal, may apply to
the Court for assistance in taking evidence.

(2) The application shall specify—

(a) The names and addresses of the parties and the arbitrators.

(b) The general nature of the claim and the relief sought;

(c) The evidence to the obtained, in particular,—

(i) The name and address of any person to be heard as witness or expert
witness and a statement of the subject-matter of the testimony required;

(ii) The description of a document to be produced or property to be inspected.

(3) The Court may, within its competence and according to its rules on taking evidence,
execute the request by ordering that the evidence be provided directly to the arbitral tribunal.

(4) The Court may, while making or order under sub-section (3), issue the same processes to
witnesses as it may issue in suits tried before it.

(5) Persons failing to attend in accordance with such process, or making any other fault, or
refusing to give their evidence, or guilty of any contempt to the arbitral tribunal during the
conduct of arbitral proceedings, shall be subject to the like disadvantages, penalties and
punishments by order of the Court on the representation of the arbitral tribunal as they
would incur for the like offences in suits tried before the Court.

(6) In this section the expression “Processes” includes summonses and commissions for the
examination of witnesses and summonses to produce documents.