COURT ASSISTANCE IN ARBITRATION

Is it necessary to the court to assist the Arbitration

Yes, it is necessary sometimes, to assist the arbitration proceedings because, sometimes, parties don’t cooperate with the Arbitral Proceedings. Whether in the step of evidence, they don’t produce documents, or proofs regarding to the case or dispute or they don’t come to the tribunal, due to this, summons are called multiple times.

Even though the arbitral tribunal need not to follow the rules of evidence act and CPC  [civil procedure code], and also there is no particular provisions to follow [or] to compel to produce the documents [or] proofs. In difference, somebodies that are not connected with arbitration, they are Lok Adalat,  prohibition act 2013, ICC[Internal complaints committee] ICC is an organization under sexual harassment of women at workplace, these bodies have power to compel to produce the documents [or] proofs. So, sometimes, arbitration needs the court assistance to get evidence from parties.

Powers of court on receiving application for the assistance to given evidence to tribunal section 27 in arbitration and conciliation act 1996, It gives court assistance in taking evidence from parties.

  • Section 27[1]- party [or] arbitral tribunal is with approval of arbitral tribunal then they can apply for the assistance of court to get evidence from party.
  • Section 27[2] – it applies specifically in section 27[2][a] – names and addresses of arbitrators and parties. Section 27[2][b] – nature of claim. Section 27[2[c] –evidence is to be obtained in, section 27[2][c][ i]  – address and name of any person to be heard as witness and statement of subject matter of testimony is required. Section 27[2][c][ii] – to produce the description of any document or property can be inspected.
  • Section 27[3] – court may take evidence according to its rules and as per request by ordering the evidence to give it, directly to the arbitral tribunal.
  • Section 27[4] – while the court making an order under section 27[3], issue the same process to witnesses as it can also issue in suits that tried before it.
  • Section 27[5] – persons i.e. parties are failing to attend in observing the process, or refusing to give their evidences or guilty of any contempt to the arbitral tribunal or making any contempt to the arbitral tribunal or making any default during the arbitral proceedings, it will be subject to the punishments, penalties, disadvantages by order of the court to represent the arbitral tribunal
  • Section 27[6] – in this sub- section, “processes” is the expression that includes summons to produce the documents and also summons for the examination of witnesses. Section 27 deals with assistance of courts to the arbitral tribunal in evidentiary matters, to get evidence from parties.

In the jurisdiction of arbitral tribunal, it derives the agreement of arbitration between parties, as result, tribunals has lack of power to compel to get evidence like documents [or] proofs. So, some national laws allows the arbitral tribunal to get a court assistance in taking evidence.

In this arbitral proceedings, arbitrator is a relative of one party, so, there is risk that the arbitrator shows the bias on behalf of party. So, the other party goes to the court to get assistance from it and get record evidence through the court. This section helps and used in defined authorities of government are called as witness in the process of arbitration. To get trust and confidence in the court in some particular situations, so, the court give summons to respective party to produce the proofs [or] documents. So, the party has a trust on the proceeding can be done in correct manner.

Arbitrator cannot use this section to compel the parties, but, arbitrator seeks the court to assist to send summons for examination of parties and get evidence from party. It must be prominent, that summons given by court, i.e.  only apply to the witnesses and to the parties in the evidence taking in proceedings of arbitral tribunal.

Under section 27, arbitral tribunal seeks assistance from court to get evidence from party through witness [or] documents. But, while court giving summons it shall be required to follow the method under CPC and issued the summons in observing with order 5 of CPC.

Even though the international arbitration is widely, confidential, efficient and  flexible way to way resolve the commercial disputes or issues, the arbitral tribunal has a lack of power thrown in to particular relief and it comes to the evidence taking from the third party outside the arbitral proceedings. If they don’t comply voluntarily with request of arbitration process to test the witness [or] documents, assistance must take from the state courts.

When the case is success on the evidence that a party can acquired. It is difficult to understand to acquired evidence through state courts. State courts may offer assistance in international arbitral proceedings. With special focus on Switzerland and comparative aspects, this is the book ,it can be helpful for the arbitrators around the world.

CASES IN COURT ASSISTANCE IN TAKING EVIDENCE

  1. Thiess lviiinecs India Vs NTPC limited and another, this case seeks assistance from Delhi high court on 28 march, 2016.
  2. Manoharlal Vs  Vinesh Anand and others, this case seeks assistance from supreme court of India on 9th April,2001.
  3. M/S. BJ – Techno Has [JV] Vs NHPC limited, this case seeks assistance from Punjab Haryana court on 24th may, 2019.
  4. Sundaram brake linings limited Vs Kotak Mahindra bank limited, this case seeks assistance from madras high court on  5th January,2007.
  5. Hari Narayan G. Bajaj Vs share deal financial consultants, this case seeks assistance from Bombay high court on 13th December,2002.
  6. Silor associates Sa Vs Bharat heavy electronical limited, this case seeks assistance from Delhi high court on 1st July, 2014.
  7. Delta distilleries limited Vs united spirits limited and another, this case seeks assistance from supreme court of India on 23rd September, 2013.
  8. National insurance company Vs M/SS.A. enterprises, this case seeks assistance from Bombay high court on 16th October, 2015.
  9. These applications are filled Vs Raunaq International limited.2009…., this case seeks assistance from madras high court on 19th October, 2010.
  10. Sri Kumar textiles [P] limited, N Vs Sundaram finance limited, this case seeks assistance from madras high court on 31st may, 2007.

REFERENCES

https://www.google.com/url?sa=t&source=web&rct=j&url=https://ibclaw.in/section-27-court-assistance-in-taking-evidence/&ved=2ahUKEwjN8qqg1Zr5AhXB1jgGHfd0DDsQFnoECEYQAQ&usg=AOvVaw2RGpPDf3QXpJy0DZxHJSFZ

https://www.google.com/url?sa=t&source=web&rct=j&url=https://library.oapen.org/handle/20.500.12657/42651&ved=2ahUKEwjN8qqg1Zr5AhXB1jgGHfd0DDsQFnoECD8QAQ&usg=AOvVaw1q4-XYBAbvJO0jGWdp-MDo

https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.cambridge.org/core/books/uncitral-model-law-on-international-commercial-arbitration/court-assistance-in-taking-evidence/BC27D1FE11970434C9F0B9EE19B3AAFA&ved=2ahUKEwjN8qqg1Zr5AhXB1jgGHfd0DDsQFnoECCYQAQ&usg=AOvVaw3I8nY5YuuQHa1ZLPEy3YGD

https://www.google.com/url?sa=t&source=web&rct=j&url=https://viamediationcentre.org/readnews/MTA0NQ%3D%3D/Court-Assistance-in-Taking-Evidence&ved=2ahUKEwjN8qqg1Zr5AhXB1jgGHfd0DDsQFnoECFAQAQ&usg=AOvVaw2cl5-9HjBUGfQF-rHlnO5x

https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.advocatekhoj.com/library/bareacts/arbitration/27.php%3FTitle%3DArbitration%2520Act,%25201940%26STitle%3DCourt%2520Assistance%2520in%2520taking%2520evidence&ved=2ahUKEwjN8qqg1Zr5AhXB1jgGHfd0DDsQFnoECAYQAQ&usg=AOvVaw1TmknPhGrRvY9I8psuGkCT

https://app.leg.wa.gov/RCW/default.aspx?cite=7.05.380

Aishwarya Says:

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