Arbitration, Mediation and Conciliation · Arbitral Proceedings, Pleadings and Evidence

Experts, Court Assistance and Evidence in Arbitral Proceedings

Updated 11 October 2026 · Fact-checked

Under Section 26, an arbitral tribunal may appoint experts to report on specific issues, unless parties agree otherwise. Under Section 27, the tribunal, or a party with its approval, can ask the Court for help in taking evidence, including compelling witnesses. Section 19 says the tribunal is not bound by the CPC or the Evidence Act.

Understand Experts, Court Assistance and Evidence

An arbitral tribunal decides facts and law, but it does not have the machinery of a civil court. It may need technical help, and it cannot itself punish a witness who refuses to appear. The Act fills both gaps with Sections 26 and 27.

Start with the base rule in Section 19. The tribunal is not bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872. Parties are free to agree on the procedure. Failing agreement, the tribunal conducts the proceedings as it considers appropriate. That power includes deciding the admissibility, relevance, materiality and weight of any evidence.

Section 26 deals with experts. Unless the parties have agreed otherwise, the tribunal may appoint one or more experts to report on specific issues that it decides. It may require a party to give the expert relevant information, or to produce documents, goods or property, or give access to them for inspection. Note that the expert reports to the tribunal, not to a party.

After the report, the expert must take part in an oral hearing if a party asks, or if the tribunal thinks it necessary (again, unless parties agree otherwise). At that hearing parties can put questions and present their own expert witnesses. On a party's request, the expert must also make available the documents, goods or property he was given to prepare the report.

Section 27 is the court-assistance route. The tribunal, or a party with the tribunal's approval, may apply to the Court. The Court may order that evidence be provided directly to the tribunal. It can issue the same processes to witnesses as in suits. A person who defaults, refuses to give evidence or commits contempt of the tribunal faces the same penalties as in a suit, on the tribunal's representation.

Key rules to remember

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)).

How to solve Experts, Court Assistance and Evidence questions

Use this order for any problem on experts, evidence or court help. Always tie each point to the facts.

1Identify what is asked: expert, tribunal's own evidence powers, or court assistance.
2State the base rule: under Section 19 the tribunal is not bound by the CPC or the Evidence Act, and it judges admissibility, relevance, materiality and weight.
3Check whether the parties have agreed anything different. Sections 19 and 26 operate subject to party agreement.
4For an expert, apply Section 26: appointment on specific issues, power to require information or access, oral hearing, and access to the expert's materials.
5For a witness who will not attend or a document that cannot be obtained, apply Section 27: who applies, what the application must contain, and the Court's powers.
6Apply the facts to the provisions one by one, and note who may act (tribunal or party) in each.
7Conclude clearly with the outcome, and add a practical drafting or compliance point.

Quickest way: Three-question check

When to use it: Use when time is short and the question is a short fact pattern.

Who wants help: the tribunal or a party? A party needs the tribunal's approval before going to Court under Section 27.
Is it technical input or compulsion? Technical input is Section 26. Compelling witnesses or documents is Section 27.
Did the parties agree otherwise? If yes, Section 26 gives way to the agreement; if not, the default rule applies.
Write the conclusion with section numbers.

Common mistakes in Experts, Court Assistance and Evidence

Saying the Indian Evidence Act strictly binds the tribunal.
Students carry over civil court habits.
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.
Students remember only that the Court helps with evidence.
Fix: Say the tribunal may apply, or a party with the tribunal's approval.
Treating the expert as a party's witness.
Confusion with expert witnesses presented by parties.
Fix: The Section 26 expert is appointed by the tribunal and reports to it. Parties may present their own expert witnesses at the oral hearing.
Ignoring the words 'unless otherwise agreed by the parties' in Section 26.
Students memorise the powers and skip the condition.
Fix: Open every Section 26 answer with the condition. If the agreement excludes experts, the tribunal cannot use this power.
Saying the tribunal itself punishes a defaulting witness.
Students assume the tribunal has contempt powers like a court.
Fix: Under Section 27(5), penalties are imposed by the Court on the tribunal's representation.

Worked examples

Example 1

Meridian Infra Ltd and Kaveri Constructions are in arbitration over defective piping in a plant in Pune. Their agreement is silent on experts. The tribunal wants a technical opinion on whether the piping met the contract specifications. Kaveri objects, saying only the Court can appoint experts. Advise.

Show the solution

Provision: Section 26(1) allows the tribunal, unless the parties have otherwise agreed, to appoint one or more experts to report on specific issues it determines.
Facts: the agreement is silent, so there is no contrary agreement. The issue, conformity of piping to specifications, is a specific technical issue.
Analysis: the power belongs to the tribunal, not the Court. Kaveri's objection has no basis in Section 26.
Further powers: the tribunal can require Meridian to give the expert relevant information and access to the piping for inspection (Section 26(1)(b)).
Safeguards: after the report, if a party requests or the tribunal considers it necessary, the expert must attend an oral hearing where parties can question him and present their own expert witnesses (Section 26(2)). On request, he must make available the documents and property he received (Section 26(3)).
Practical point: define the issues for the expert in a written order.

Answer: The tribunal may appoint the expert itself under Section 26(1). Kaveri's objection fails. Both parties keep the right to question the expert and to see his materials.

Example 2

In an arbitration seated in Mumbai, Rohan Mehta, a former finance manager of the respondent, refuses to attend the hearing as a witness. The claimant, Aarav Traders, wants his evidence. What can be done, and what must be filed?

Show the solution

Provision: Section 27(1) allows the tribunal, or a party with the tribunal's approval, to apply to the Court for assistance in taking evidence.
Facts: Aarav Traders is a party, so it must first obtain the tribunal's approval. Alternatively the tribunal may apply itself.
Application contents (Section 27(2)): names and addresses of parties and arbitrators; general nature of the claim and relief sought; and the evidence required, here Rohan Mehta's name and address and the subject-matter of his testimony.
Court's powers: it may order that the evidence be provided directly to the tribunal and issue the same processes to witnesses as in suits, such as summonses (Section 27(3), (4)).
Consequence of default: if Rohan fails to attend or refuses to give evidence, the Court can impose the same penalties as in suits, on the tribunal's representation (Section 27(5)).
Conclusion: the route is Section 27, not any power of the tribunal to punish him directly.

Answer: Aarav Traders should get the tribunal's approval and apply to the Court under Section 27 with the details in Section 27(2). The Court can summon Rohan and penalise default on the tribunal's representation.

Exam tips

Begin evidence answers with Section 19: the tribunal is not bound by the CPC or the Evidence Act, and decides admissibility, relevance, materiality and weight.
Write 'unless otherwise agreed by the parties' whenever you cite Section 26, since the examiner looks for this condition.
For Section 27 questions, list the Section 27(2) contents of the application as a short checklist and state who may apply.
Separate the roles clearly: expert (tribunal's technical help), expert witnesses (called by parties), and Court (compulsion).
Conclude with a practical step, such as a written order defining the expert's issues or a draft application to the Court.

Practice questions from Arbitral Proceedings, Pleadings and Evidence

Experts, Court Assistance and Evidence: frequently asked questions

Is the Indian Evidence Act binding on an arbitral tribunal?

No. Section 19(1) says the tribunal is not bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872. It decides admissibility, relevance, materiality and weight of evidence under Section 19(4). It must still follow Part I and any procedure the parties agree.

Can parties stop the tribunal from appointing an expert?

Yes. Section 26 applies unless the parties have otherwise agreed. If their agreement excludes experts, the tribunal cannot use this power.

Who can apply to the Court under Section 27?

The arbitral tribunal can apply. A party can apply only with the approval of the tribunal. The application must contain the details listed in Section 27(2).

Can a tribunal compel a witness to attend?

Not by itself. It must seek the Court's help under Section 27. The Court can issue summonses and commissions, and can penalise default or contempt on the tribunal's representation.