Arbitral Proceedings, Pleadings and Evidence: formula sheet

Key formulas

Equal treatment (section 18)

Equality of parties + full opportunity to present case

Both limbs apply to each party. It is a mandatory duty of the tribunal.

Non-application of civil procedure and evidence law (section 19(1))

Tribunal is not bound by the CPC, 1908 or the Indian Evidence Act, 1872

This means not strictly bound. It does not mean the tribunal may ignore fairness.

Party autonomy (section 19(2))

Parties free to agree procedure, subject to Part I

Agreement cannot override mandatory provisions such as section 18.

Tribunal discretion (section 19(3))

No agreement → tribunal conducts proceedings as it considers appropriate, subject to Part I

Discretion arises only when parties have not agreed.

Evidence power (section 19(4))

Power under 19(3) includes admissibility, relevance, materiality and weight of evidence

The tribunal decides all four aspects of evidence.

Commencement of arbitration (Section 21)

Commencement date = date the respondent receives the request to refer the dispute to arbitration

Applies unless parties agree otherwise. It is dispute-specific. Date of sending is not the test.

Place of arbitration (Section 20)

Parties agree → if no agreement, tribunal decides (circumstances + convenience of parties)

Section 20(3): tribunal may meet elsewhere for consultation, hearings or inspection, unless parties agree otherwise.

Language (Section 22)

Parties agree → if no agreement, tribunal determines

Applies to written statements, hearings, awards and tribunal communications unless otherwise specified.

Translation of evidence (Section 22(4))

Tribunal may order documents to be accompanied by a translation

Translation is into the language agreed or determined. It is a power, not an automatic duty.

Limitation link (Section 43)

Limitation Act, 1963 applies; arbitration deemed commenced on the Section 21 date

Section 43(4): if the court sets aside an award, the time from commencement to the court order is excluded.

Place stated in award (Section 31(4))

Award states its date and the place of arbitration under Section 20; deemed made there

Links Section 20 to the award.

Contents of pleadings, Section 23(1)

Claim = facts + points at issue + relief or remedy sought; Defence = reply on the same particulars

Filed within the period agreed by the parties or fixed by the tribunal, unless the parties agree otherwise on the required elements.

Documents, Section 23(2)

File relevant documents OR refer to documents or evidence to be submitted later

Both options are open to the parties.

Counterclaim and set-off, Section 23(2A)

Respondent may counterclaim or plead set-off, if within the scope of the arbitration agreement

The tribunal must adjudicate it when it is within scope.

Amendment, Section 23(3)

Either party may amend or supplement, unless agreed otherwise or tribunal finds it inappropriate due to delay

Delay in making the amendment is the stated ground for refusal.

Time limit, Section 23(4)

Pleadings completed within 6 months from receipt of written notice of appointment by the arbitrator(s)

Starts when the arbitrator, or all the arbitrators, received written notice of appointment.

Link to award time, Section 29A(1)

Award within 12 months from completion of pleadings under Section 23(4)

For domestic arbitration. For international commercial arbitration, the award may be made as expeditiously as possible, with an endeavour to dispose of it within 12 months.

Default, Section 25(a) and (b)

Claimant defaults: proceedings terminated. Respondent defaults: proceedings continue, no deemed admission

Applies unless otherwise agreed and where no sufficient cause is shown. The tribunal has discretion to treat the respondent's right to file the defence as forfeited.

Mode of hearing (S.24(1))

Unless parties agree otherwise: tribunal decides oral hearing or documents only

Proviso: tribunal must hold an oral hearing on a party's request, unless parties agreed no oral hearing shall be held.

Day-to-day hearings (second proviso to S.24(1))

As far as possible, day-to-day hearings; no adjournment without sufficient cause

Tribunal may impose costs, including exemplary costs, on a party seeking adjournment without sufficient cause.

Notice (S.24(2))

Sufficient advance notice of every hearing and every inspection meeting

Covers inspection of documents, goods or other property.

Communication (S.24(3))

All statements, documents, applications and expert reports relied on must reach the other party

This is the natural-justice safeguard in written proceedings.

Claimant's default (S.25(a))

No statement of claim under S.23(1) without sufficient cause → tribunal shall terminate proceedings

Termination is mandatory, subject to contrary agreement.

Respondent's default (S.25(b))

No statement of defence without sufficient cause → proceedings continue; not an admission in itself

Tribunal has discretion to treat the right to file the defence as forfeited.

Party's default at hearing (S.25(c))

Fails to appear or produce documents without sufficient cause → tribunal may continue and make award on evidence before it

The word is 'may', so it is discretionary.

Section 19: rules of evidence

Tribunal not bound by CPC, 1908 or Indian Evidence Act, 1872; it decides admissibility, relevance, materiality and weight

Parties may agree on procedure; failing agreement the tribunal decides, subject to Part I.

Section 26(1): appointment of expert

Unless otherwise agreed, tribunal may (a) appoint expert(s) to report on specific issues, and (b) require a party to give information, documents or access

The tribunal decides the issues; the expert reports to the tribunal.

Section 26(2): expert at oral hearing

Unless otherwise agreed, on party's request or if tribunal considers it necessary, expert participates in oral hearing after his report

Parties may question him and present expert witnesses.

Section 26(3): expert's materials

On a party's request, expert makes available all documents, goods or property provided to him for the report

Subject to contrary agreement of the parties.

Section 27(1): who may apply to Court

Tribunal, or a party with the approval of the tribunal

A party cannot apply alone without the tribunal's approval.

Section 27(2): contents of application

Names and addresses of parties and arbitrators; nature of claim and relief; evidence sought (witness name, address, subject-matter; document or property description)

Use this as a drafting checklist.

Section 27(3)-(5): Court's powers

Court may order evidence be given directly to tribunal; issue same processes as in suits; punish default or contempt on tribunal's representation

Processes include summonses, commissions for examining witnesses and summonses to produce documents (Section 27(6)).

Section 17(1): who and when

Party applies to the arbitral tribunal during the arbitral proceedings

The words covering the period after the award but before enforcement were omitted in 2019.

Section 17(2): enforceability

Tribunal's interim order = deemed order of the Court, enforceable under the CPC, 1908

Subject to any orders in an appeal under section 37.

Section 17(1)(ii) heads

(a) goods; (b) securing the amount in dispute; (c) detention, preservation, inspection of property; (d) interim injunction or receiver; (e) other just and convenient measure

Learn the five heads in this order. Clause (i) is the guardian for a minor or person of unsound mind.

Section 9(3): court after tribunal is constituted

Court will not entertain a section 9 application once the tribunal is constituted, unless section 17 remedy may not be efficacious

Section 9(2): if a court grants interim relief before arbitration begins, arbitration must commence within 90 days of the order or such further time as the Court determines.

Section 28(1): substantive law

Domestic (seat in India): substantive law in force in India. International commercial: rules of law designated by parties; failing designation, rules the tribunal considers appropriate

A designated country's law means its substantive law, not its conflict of laws rules, unless otherwise expressed.

Section 28(2) and (3)

Ex aequo et bono or amiable compositeur only if expressly authorised; always consider contract terms and trade usages

Express authorisation is the test for deciding on equity.

Section 30: settlement

Settlement → tribunal terminates proceedings → on request and no objection, award on agreed terms (section 31 form, states it is an award) with same status as any other award

Section 30(1): mediation, conciliation or other procedures need the agreement of the parties.

Core rule

Conciliation material in s. 81(a) to (d) cannot be relied on or introduced as evidence in arbitral or judicial proceedings

Applies whether or not the later proceedings relate to the conciliated dispute.

The four protected items

(a) other party's views or suggestions on settlement; (b) other party's admissions in conciliation; (c) conciliator's proposals; (d) other party's indicated willingness to accept a conciliator's proposal

Learn them in this order and cite the clause letters.

Where it bites

Section 34(2) Explanation 1(i): an award made in violation of section 81 conflicts with the public policy of India

The section 34 text also mentions section 75, which you should link to confidentiality in conciliation.

Related bar

Section 80: conciliator cannot act as arbitrator, representative or counsel, or be presented as a witness, unless parties agree otherwise

Section 81 bars the material; section 80 bars the person.

Quick revision

• Section 18: parties are treated with equality and each gets a full opportunity to present the case.
• Section 20: parties are free to agree the place; failing that, the tribunal decides, having regard to the convenience of the parties.
• Section 20(3): unless parties agree otherwise, the tribunal may meet anywhere it considers appropriate for consultation, hearing witnesses or inspecting documents.
• Section 22: parties agree the language; failing that, the tribunal decides, and it may order translations of documents.
• Section 23(1): claim states the facts, the points at issue and the relief sought; the respondent states the defence.
• Section 23(2A): a counterclaim or set-off is adjudicated only if it falls within the scope of the arbitration agreement.
• Section 23(4): claim and defence must be completed within six months from the arbitrator's receipt of written notice of appointment.
• Section 24: an oral hearing must be held on a party's request unless the parties agreed on no oral hearing; adjournments need sufficient cause and costs may be imposed.
• Section 25: no claim means termination; no defence means proceedings continue without treating it as an admission; non-appearance means the tribunal may decide on the evidence before it.
• Section 27: the tribunal, or a party with its approval, may apply to the Court for help in taking evidence.
• Section 9(2) and (3): arbitration must start within 90 days of a pre-arbitral court order; after the tribunal is constituted the Court entertains section 9 applications only if section 17 is not efficacious.
• Section 81: views, admissions, proposals and willingness to accept a proposal in conciliation cannot be relied on as evidence in other proceedings.

Common mistakes

• Saying the tribunal must follow the CPC and the Evidence Act. Fix: Quote section 19(1): the tribunal is not bound by either law.
• Treating tribunal discretion as unlimited. Fix: Add 'subject to Part I' and bring in section 18 every time.
• Treating the date the notice was sent as the commencement date. Fix: Section 21 says the date the request is received by the respondent. Always find the receipt date in the facts.
• Saying the tribunal must hold all hearings at the place of arbitration. Fix: Section 20(3) lets the tribunal meet at any place it considers appropriate for consultation, hearing witnesses, experts or parties, or inspecting documents, goods or property, unless parties agree otherwise.
• Saying the six months run from the date of the arbitration agreement or the dispute. Fix: Remember it runs from the date the arbitrator, or all the arbitrators, received written notice of appointment.
• Saying a counterclaim is always allowed. Fix: Add that it must fall within the scope of the arbitration agreement.
• Saying the respondent's failure to file a defence means the claim is admitted. Fix: State that Section 25(b) says the failure is not in itself an admission. The tribunal continues and decides on the evidence.
• Saying the tribunal can refuse an oral hearing even when a party asks for one. Fix: Add that the tribunal must hold an oral hearing on request, unless the parties have agreed that no oral hearing shall be held.
• Saying the Indian Evidence Act strictly binds the tribunal. Fix: Quote Section 19(1): the tribunal is not bound by the CPC or the Evidence Act, and decides admissibility, relevance, materiality and weight under Section 19(4).
• Stating that a party can apply directly to the Court under Section 27. Fix: Say the tribunal may apply, or a party with the tribunal's approval.

Exam tips

• Cite sections 18 and 19 together in any procedure answer. Examiners look for both.
• Use the sequence: agreement, tribunal discretion, subject to Part I and section 18.
• In case questions, state the provision, apply it to the facts and then give a firm conclusion.
• Quote key phrases from the Act, such as 'full opportunity to present his case' and 'admissibility, relevance, materiality and weight'.
• Link this topic to hearings and fast track procedure when facts mention written proceedings.
• Quote the section number and the exact trigger words: received by the respondent, convenience of the parties, failing any agreement.
• In case studies, underline dates. Commencement questions are usually answered by finding the receipt date.
• Always state the order: party agreement first, tribunal decision second. This gains easy marks.