INDIA Law and Practice Contributed by: Amit Mishra and Mitakshara Goyal, Svarniti Law Offices
Pleadings Stage Parties typically submit all relevant documents and evi - dence along with their statement of claim or defence. The burden of proof lies with the party asserting a claim or defence (as per DIAC Rule 25.1). The tribunal can require parties to produce additional documents, exhibits or evidence at any stage, and may also under - take site visits if necessary. Hearing Stage The tribunal decides whether to hold oral hearings for evidence and arguments, unless the parties agree otherwise. Witness evidence may be presented via written statements, which are then confirmed by direct examination and may be subject to cross-examina - tion. The tribunal has discretion to allow, refuse or limit the number of witnesses, restrict oral testimony time, and determine the manner of examination (including remote hearings). The tribunal may appoint experts to report on spe - cific issues, with parties being given the opportunity to question the expert. Discovery, Disclosure and Privilege There is no formal discovery process as in common law courts. However, the tribunal can direct parties to make specific disclosures or produce documents relevant to the dispute. Sensitive documents may be subject to special disclo - sure terms by tribunal order (DIAC Rule 26.4). Privilege issues are generally respected as per party agreement or tribunal discretion. Court Assistance If a party refuses to comply with the tribunal’s direction to produce evidence, the tribunal or a party (with the tribunal’s approval) may seek court assistance under Section 27 of the ACA. The court can then compel the production of evidence or witnesses, similar to its
dence as prescribed under national law, but they are nonetheless expected to evaluate all evidence impar - tially and with due diligence. Furthermore, arbitral tribunals must ensure that wit- nesses are treated fairly during examination. This includes protecting witnesses from unnecessary pres - sure or discomfort, and maintaining the integrity of the proceedings. The tribunal’s approach should bal - ance flexibility with fairness, ensuring that the process remains just and equitable for all parties involved. 8.3 Powers of Compulsion Section 27 of the ACA empowers arbitral tribunals – or parties with the tribunal’s consent – to request assistance from courts in collecting evidence dur - ing arbitration. Courts may be approached to sum - mon witnesses, order the production of documents, or otherwise help gather evidence, using the same procedures as in regular litigation. In certain cases, courts have even appointed commissions to record testimony from witnesses based outside India. This provision applies to both domestic and interna - tionally seated arbitrations, unless the parties have agreed to exclude it. Before seeking judicial assis - tance, a party must obtain approval from the arbitral tribunal. The court will then assess whether it has the authority to act and whether the request is appropriate before granting any assistance. Orders issued by the court under Section 27 are binding; failure to com - ply can result in penalties similar to those imposed in standard court proceedings. A Redfern Schedule is a structured table used in inter - national arbitration to manage and organise requests for the production of documents. It typically includes columns for the requesting party to specify the docu - ments sought and the reasons for their relevance, the responding party’s objections, and the arbitral tribu - nal’s decision on each request
powers in civil litigation. 8.2 Rules of Evidence
9. Confidentiality 9.1 Extent of Confidentiality
Please see 8.1 Collection and Submission of Evi- dence regarding the applicability of the Indian Evi - dence Act to arbitral proceedings. Arbitral tribunals are not bound by the strict and formal rules of evi -
Following the 2019 amendments to the ACA, Indi - an law expressly mandates that all parties involved
334 CHAMBERS.COM
Powered by FlippingBook