Experts Appointed by the Tribunal, and Court Assistance in Taking Evidence
Chapter Thirty-Three
Syllabus topic 2.1, "The Arbitration and Conciliation Act, 1996"
Pages 166 to 169 of 377
In one line
The tribunal can appoint its own expert, and where it needs a witness or a document it cannot itself compel, it borrows the court's power.
In exam wording: section 26 empowers the arbitral tribunal, unless otherwise agreed, to appoint experts to report on specific issues, and section 27 permits the tribunal, or a party with its approval, to apply to the Court for assistance in taking evidence.
Section 26: the tribunal's own expert
Section 26(1): unless otherwise agreed by the parties, the tribunal may:
- (a) appoint one or more experts to report to it on specific issues to be determined by the tribunal; and
- (b) require a party to give the expert any relevant information, or to produce or provide access to any relevant documents, goods or other property for his inspection.
Note the difference from a court. In a suit each side calls its own expert and the judge chooses between them. Here the tribunal appoints an expert of its own, on issues it identifies, and can compel the parties to give that expert access. In a construction or engineering dispute this is often the fastest route to the truth.
Section 26(2): unless otherwise agreed, if a party so requests or if the tribunal considers it necessary, the expert shall, after delivering 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 to testify on the points at issue.
This is the fairness safeguard, and it is the reason section 26 does not offend section 18. A party can insist that the tribunal's own expert be questioned, and can call its own expert against him.
Section 26(3): unless otherwise agreed, the expert shall, on the request of a party, make available to that party for examination all documents, goods or other property in his possession with which he was provided in order to prepare his report.
So a party can see the material the expert worked from. Read sections 26(2) and (3) with section 24(3), under which any expert report the tribunal may rely on must be communicated to the parties. Together they mean a tribunal cannot decide on an expert's view that a party has not been able to test.
Section 27: borrowing the court's coercive power
Here is the gap the section fills. A tribunal can order the parties to do things, because they agreed to its authority. It has no authority at all over a stranger: the bank that holds the account, the government office that holds the file, the eyewitness who never signed anything.
Section 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.
Experts Appointed by the Tribunal, and Court Assistance in Taking Evidence
Note who may apply: the tribunal itself, or a party with the tribunal's approval. A party cannot go to court on its own.
Section 27(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 be obtained, in particular (i) the name and address of any person to be heard as a witness or expert witness and a statement of the subject matter of the testimony required, and (ii) a description of any document to be produced or property to be inspected.
That list is exactly the sort of thing a clinical paper can ask a student to draft, so learn it as a checklist.
Section 27(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.
Note "directly to the arbitral tribunal". The court does not take the evidence and then relay it; it directs that the evidence go straight to the tribunal. The court is lending its coercive power, not taking over the case.
Section 27(4): the Court may issue the same processes to witnesses as it may issue in suits tried before it. By section 27(6), "processes" includes summonses and commissions for the examination of witnesses and summonses to produce documents.
Section 27(5): persons failing to attend in accordance with such process, or making any other default, or refusing to give their evidence, or guilty of any contempt to the arbitral tribunal during the conduct of the 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.
Sub-section (5) is the one to notice, and it is wider than its heading suggests. It is not confined to witnesses who ignore a summons. It reaches a person guilty of any contempt to the arbitral tribunal during the proceedings, and it makes the court the enforcer, acting on the representation of the arbitral tribunal.
So the answer to "can an arbitrator punish for contempt?" is: no, but the court can, on his representation, under section 27(5).
A worked example
An arbitration concerns a fire at a warehouse. The tribunal wants three things: an independent view of what caused the fire; the fire brigade's incident file, which is with a public office that is not a party; and evidence from a former employee of the respondent who has since left and will not co-operate.
Experts Appointed by the Tribunal, and Court Assistance in Taking Evidence
The cause of the fire. Section 26(1)(a): the tribunal may appoint its own expert to report on that specific issue, and under clause (b) require the parties to give him information and access to the site.
Can the claimant question that expert? Yes. Under section 26(2), on a party's request the expert must take part in an oral hearing where the parties may put questions to him and present their own expert witnesses. Under section 26(3) the claimant may also require the expert to make available the documents he was given.
The fire brigade's file. The tribunal has no power over a public office. Section 27 is the route: the tribunal, or a party with the tribunal's approval, applies to the Court, specifying under section 27(2)(c)(ii) a description of the document to be produced. The Court may issue a summons to produce documents, which section 27(6) confirms is a "process", and may order that the evidence be provided directly to the tribunal under section 27(3).
The former employee. Same route, under section 27(2)(c)(i): his name and address and a statement of the subject matter of the testimony required. The Court may issue the same process it would in a suit.
He is summoned and does not come. Section 27(5): he is subject to the like disadvantages, penalties and punishments by order of the Court, on the representation of the arbitral tribunal, as he would incur for the like default in a suit tried before that Court.
And if he attends but abuses the arbitrator? Also section 27(5), which covers a person guilty of any contempt to the arbitral tribunal during the conduct of the proceedings.
What beginners get wrong
A tribunal cannot summon a stranger. Its authority comes from the arbitration agreement, which binds only the parties. Section 27 exists because of that.
A party cannot apply under section 27 on its own. The tribunal must approve.
The court does not take over the evidence. Under section 27(3) it orders that the evidence be provided directly to the tribunal.
Section 27(5) is not limited to absent witnesses. It covers any other default, refusal to give evidence, and contempt to the tribunal.
A tribunal-appointed expert is not the tribunal's private adviser. Sections 26(2) and (3) and section 24(3) make his report and his materials open to the parties.
Quick revision
- 26(1): the tribunal may appoint experts on specific issues and require a party to give information or provide access to documents, goods or property.
- 26(2): on a party's request or if the tribunal thinks it necessary, the expert takes part in an oral hearing and the parties may question him and call their own experts.
- 26(3): on request, the expert makes his materials available to a party.
- 27(1): the tribunal, or a party with the tribunal's approval, may apply to the Court for assistance in taking evidence.
- 27(2): the application specifies parties and arbitrators; the nature of the claim and relief; and the evidence, with names, addresses and the subject matter of testimony, or a description of the document or property.
- 27(3): the Court may order the evidence be provided directly to the tribunal. 27(4) and (6): the same processes as in suits, including summonses and commissions.
- 27(5): default, refusal to give evidence, or contempt to the arbitral tribunal, attracts the like penalties by order of the Court on the tribunal's representation.
Experts Appointed by the Tribunal, and Court Assistance in Taking Evidence
Test yourself
1. Can an arbitral tribunal summon a witness who is not a party? No. Its authority derives from the arbitration agreement and binds only the parties. It must use section 27, applying to the Court, or approving a party's application, for assistance in taking evidence.
2. What must a section 27 application contain? The names and addresses of the parties and the arbitrators; the general nature of the claim and the relief sought; and the evidence to be obtained, in particular the name and address of any person to be heard as a witness or expert witness with a statement of the subject matter of the testimony required, and a description of any document to be produced or property to be inspected.
3. Who punishes a witness who ignores the summons? The Court, under section 27(5), on the representation of the arbitral tribunal, imposing the like disadvantages, penalties and punishments as the person would incur for a like default in a suit tried before that Court.
4. The tribunal appoints its own expert. What rights does a party have? Under section 26(2) it may request that the expert participate in an oral hearing where the parties may put questions to him and present their own expert witnesses; under section 26(3) it may require the expert to make available the documents, goods or property he was provided with; and under section 24(3) any expert report the tribunal may rely on must be communicated to the parties.
5. Can a party apply to court under section 27 without telling the tribunal? No. Section 27(1) permits an application by the arbitral tribunal, or by a party with the approval of the arbitral tribunal.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself for the same subject.