Pleadings, Hearings, and What Happens When a Party Does Not Turn Up

In one line

Each side puts its case in writing, the tribunal decides whether to hold hearings, and a party who stays away does not automatically lose.

In exam wording: section 23 governs the statements of claim and defence, section 24 the holding of oral hearings and written proceedings, and section 25 the consequences of a party's default.

Section 23: the pleadings

Section 23(1): within the time agreed by the parties or determined by the 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 those particulars, unless the parties have agreed otherwise as to the required elements.

Three ingredients in a statement of claim, and they are worth remembering as a list because they are what a student would have to draft on a clinical paper: the facts, the points at issue, and the relief sought.

Section 23(2): the parties may submit with their statements all documents they consider relevant, or may add a reference to the documents or other evidence they will submit.

Section 23(2A), inserted by the 2015 amendment: the respondent 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.

This settled a real doubt. Before it, a respondent with a cross-claim was sometimes told to start a separate arbitration. Note the condition: the counterclaim or set-off must fall within the scope of the arbitration agreement.

Counterclaim and set-off are not the same. A set-off is a defence: it reduces or extinguishes what the claimant can recover. A counterclaim is an independent claim that can exceed the claim and produce an award in the respondent's favour.

Section 23(3): unless otherwise agreed, either party may amend or supplement his claim or defence during the proceedings, unless the tribunal considers it inappropriate having regard to the delay in making it.

Section 23(4), inserted by the 2019 amendment: the statement of claim and defence shall be completed within a period of six months from the date the arbitrator or all the arbitrators, as the case may be, received notice in writing of their appointment.

Section 23(4) is what makes section 29A workable. Chapter 360 explains: the twelve month period for making the award runs from the completion of pleadings, and section 23(4) puts an outer limit of six months on that stage. Six plus twelve is the intended shape of an Indian arbitration.

Section 24: hearings

Section 24(1): unless otherwise agreed, the 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.