______________________________________________________________________________________________________________ INTERNATIONAL CONFERENCE ON ARBITRATION DISCOURSE AND PRACTICE IN ASIA 2015,

KUALA LUMPUR, MALAYSIA____________________________________________________________________________________________________

_______________________________________________________________________________________________________________ “PRODUCTION AND DISCOVERY OF DOCUMENTS IN ARBITRATION IN INDIA

- A COMPARATIVE ANALYSIS ”

PAPER PRESENTED BY:

MR. ASHOK KUMAR SINGH, SENIOR ADVOCATE – INDIAMS. NISHTHA SHARMA, ADVOCATE, A.K.SINGH & CO - INDIA

_______________________________________________________________________________________________________________

DATE : 20 -21 AUGUST 2015

VENUE : KUALA LUMPUR REGIONAL ARBITRATION CENTRE, KUALA LUMPUR, MALAYSIA

TABLE OF CONTENTS

INTRODUCTION

GENERAL BACKGROUND OF DEVELOPMENT OF LAW OF ARBITRATION IN INDIA

LAWS ON DISCOVERY AND PRODUCTION OF DOCUMENTS IN ARBITRATION IN OTHER JURISDICTIONS

LAWS ON DISCOVERY AND PRODUCTION OF DOCUMENTS IN INDIA UNDER THE ACT OF 1996

JUDICIAL PRONOUNCEMENTS OF INDIAN COURTS

CONCLUSION

RECOMMENDATION

INTRODUCTION

It is settled proposition of law that a witness may lie but documents will not. The production of the relevant documents in any arbitration proceedings is very important. It enables the arbitral tribunal to arrive at a right decision. In some cases it may cut short the complex process of leading oral evidences. Arbitral tribunal thus, should have access to all relevant documents while deciding any

dispute submitted to it. It may be possible that a party to the proceedings may refuse to produce them on request of

the other party.

INTRODUCTION (Contd.)

In such a situation the aggrieved party may make a request to the arbitral tribunal for discovery and production of documents.

Arbitral tribunal in such circumstances may order for discovery and production of documents. 

Keeping in view significance of discovery and production of documents in arbitration proceedings, various specific laws have been made in different countries to deal with the foregoing aspect.

This presentation is an attempt to comparatively analyze the laws relating to discovery and production of documents in arbitration in India and other jurisdictions.

 

GENERAL BACKGROUND OF DEVELOPMENT OF LAW OF ARBITRATION IN INDIA

 

The first codified law on arbitration in India was the Indian Arbitration Act, 1899. This was followed by the Code of Civil Procedure, 1908 where the Second Schedule was

completely devoted to arbitration. The aforementioned Act and the Second Schedule of Code of Civil Procedure, 1908 were

repealed by The Arbitration Act, 1940 (Act of 1940) which was based on the (English) Arbitration Act, 1934.

To enforce the Geneva Convention awards, the Arbitration (Protocol and Convention) Act was introduced and to enforce the New York Convention awards, the Foreign Awards (Recognition and Enforcement) Act, 1961 was introduced.

After the UNCITRAL Model Law on International Commercial Arbitration, 1985, to provide a consolidated legislation, The Arbitration and Conciliation Act 1996 (Act of 1996) was introduced, which repealed all the previous arbitration statutes.

GENERAL BACKGROUND OF DEVELOPMENT OF LAW OF ARBITRATION IN INDIA (CONTD.)

 

The Act of 1996 was brought into existence mainly to provide an effective, fair and expeditious arbitral procedure in respect of international commercial arbitration seated in India and domestic arbitration. 

The Act of 1996 is divided in four parts:

Part I : Arbitration,

Part II : Enforcement of certain Foreign Awards,

Part III: Conciliation, and

Part IV: Supplementary Provisions In this presentation the presenters will deal only with few of the relevant provisions of Part –I

related to the present issue.

LAWS ON DISCOVERY AND PRODUCTION OF DOCUMENTS IN ARBITRATION IN OTHERJURISDICTIONS:

- SINGAPORE- MALAYSIA- UNITED KINGDOM- HONG KONG

SINGAPORE

Section 28 (2) (b) of the Singapore Arbitration Act, 2001 and Section 12 (1) (b) of The International Arbitration Act, empower arbitral tribunal to make orders or directions to any party for discovery of documents and interrogatories.

Rule 24 (g) of the Arbitration Rules of Singapore International Arbitration Centre, 2013 (SIAC Rules) empowers the tribunal to order any party to produce to the tribunal and to the other parties for inspection and to supply copies of any document in their possession or control which the tribunal considers relevant to the case and material to its outcome.

MALAYSIA

In Malaysia, the arbitration proceedings are governed under Arbitration Act 2005.

Section 19(1) (b) and Section 21(3) (f) of the said Act empower the arbitral tribunal to order the discovery and production of documents or materials within the possession and power of a party.

As per Article 27(3) of Kuala Lumpur Regional Centre for Arbitration UNCITRAL Rules, (as revised in 2010), the arbitral tribunal may require the parties to produce documents, exhibits or other evidences within such a period of time as the arbitral tribunal shall determine.

UNITED KINGDOM

In United Kingdom the governing arbitration legislation is Arbitration Act 1996.

Section 34(2) (d) of the said Act confers on the tribunal the power to decide whether any and if so which documents or classes of documents should be disclosed between and produced by the parties and at what stage.

Article 22.1 (v) of the London Court of International Arbitration (LCIA) Rules, 2014 grants arbitral tribunal power to order any party to produce to the arbitral tribunal and to other parties documents or copies of documents in their possession, custody or power which the arbitral tribunal decides to be relevant.

HONG KONG

In Hong Kong, a new Arbitration Ordinance came into effect in 2011 reforming the arbitration law of Hong Kong, based on Model Law.

Section 56(1) (b) of the said Act entrusts power to arbitral tribunal to make an order directing the discovery of documents or the delivery of interrogatories.

Rule 6.7 of the Hong Kong International Arbitration Centre Domestic Arbitration Rules, 2014 permits the tribunal, at any stage of proceedings, to order the parties to produce any additional document which the tribunal may specify.

Similarly, in Article 22.3 of the Hong Kong International Arbitration Centre Administered Arbitration Rules, 2013, the arbitral tribunal is vested with the power, to require a party to produce documents, exhibits or other evidence that the arbitral tribunal determines to be relevant to the case and material to its outcome at any time during the arbitration.

LAWS ON DISCOVERY AND PRODUCTION OF DOCUMENTS IN INDIA UNDER THE ACT OF 1996

In the Arbitration Act of 1940 (repealed), Para 6 of the First Schedule, required the parties to the reference and all persons claiming under them to produce before the arbitrators or umpire all books, deeds, papers, accounts, writings and documents within their possession or power respectively, which may be required or called for. The parties were also required to do all other things which during the proceedings on the reference, the arbitrators or umpire may require.

Unlike Para 6 of the First Schedule of the Act of 1940, there is no specific provision in the Act of 1996 regarding discovery and production of documents.

  The only provision which deals with taking evidence is Section 27 of the Act of 1996.

Court assistance in taking evidence.—(1) The arbitral tribunal, or a party with the approval of the arbitral tribunal, may apply to the Court for assistance in taking evidence.(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

  

Contd.

(c) the evidence to be obtained, in particular,— (i) the name and address of any person to be heard as witness or expert witness and a statement of the

subject-matter of the testimony required; (ii) the description of any document to be produced or property to be inspected. (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.(4) The Court may, while making an order under sub-section (3), issue the same processes to witnesses

as it may issue in suits tried before it. (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 arbitral 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.

(6) In this section the expression “Processes” includes summonses and commissions for the examination of witnesses and summonses to produce documents.”

Contd.

This section does not give any specific provision giving the powers to the arbitral tribunal to order for discovery and production of the documents.

The other provision of the Act of 1996 which gives power to the arbitral tribunal is Section 19.“Determination of rules of procedure.-

(1) The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872.

(2) Subject to this Part, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its proceedings.

(3) Failing any agreement referred to in sub-section (2), the arbitral tribunal may, subject to this Part, conduct the proceedings in the manner it considers appropriate.

(4) The power of the arbitral tribunal under sub-section (3) includes the power to determine the admissibility , relevance, materiality and weight of any evidence”.

Contd.

This section also does not give powers to arbitral tribunal to order for discovery and production of documents.

When there is no specific provision under the Act of 1996, giving the powers to the Arbitral Tribunal to order for Discovery and Production of documents, can the arbitral tribunal issue such directions to the parties?

This question becomes more important when the Act of 1996, deals with Domestic and International Commercial Arbitration seated in India.

The reply to the foregoing question is “YES”.

The tribunal has the power to give such directions to the parties under :(i) Section 27(1) of the Act of 1996(ii) Section 19(3) of the Act of 1996

 

JUDICIAL PRONOUNCEMENTS BY INDIAN COURTS

HINDUSTAN PETROLEUM CORPORATION V. ASHOK GARG AIR2006DELHI365

The Delhi High Court had an opportunity to examine the role of arbitral tribunal while

adjudicating an application moved under Section 27 of the Act of 1996 and held:

“Section 27 envisages an application to be made to the court for seeking assistance to take

evidence. Such an application can be made either by the arbitral tribunal or a party with

the approval of the arbitral tribunal. Thus, in case of an application by a party, the

legislature itself envisaged an approval of the arbitral tribunal. This in turn puts an

obligation on the arbitral tribunal to apply its mind and not to mechanically direct an

application to be filed before the court.”

THYSSEN KRUPP WERKSTOFFEE GMBH V STEEL AUTHORITY OF INDIA168(2010)DLT250

Delhi High court in this landmark judgment held :- “Discovery is extremely important but it should be used by a contesting party to either contest

its case or demolish the case of the opposite party. In majority of situations early production of relevant documents would not only cut cost and time but would also ensure a fair outcome.”

- “Under the Arbitration Act 1940, the arbitrator had the power to direct discovery by virtue of Para 6 of the first schedule which provided that a party shall produce before the arbitrators or umpire all books, deeds, papers, accounts, writings, documents within their possession or power. There is nothing in the Act which suggests any limitation or any curtailment of this power.”

THYSSEN KRUPP WERKSTOFFEE GMBH V STEEL AUTHORITY OF INDIA168(2010)DLT250 (CONTD.)

Though there is no specific provision in the Act, 1996 which specifically confers power on the Arbitrator to direct discovery, the Arbitrator has absolute power and flexibility by virtue of Section 19 of Act, 1996 to conduct the proceedings in the manner it considers appropriate without being bound by the rules of the Indian Evidence Act, 1872 and Code of Civil Procedure, 1908.

Section 27 of Act, 1996, in my view, only deals with third party discovery and not with regard to discovery of parties before the arbitral tribunal. This inherent power of discovery, in my view, is found in Section 19(3) of Act, 1996.”

DELTA DISTILLERIES LIMITED V UNITED SPIRITS LIMITED AIR 2014 SC 113

The Hon’ble Supreme Court of India in Delta Distilleries Limited v United Spirits limited held, “It cannot be ignored that the tribunal is required to make an award on the merits of the claim placed before it. For that purpose, if any evidence becomes necessary the tribunal ought to have the power to get the evidence”.

The Supreme Court further interpreted that the term “any person” in Section 27(2) (c) of the Act of 1996 is wide enough to cover not merely the witnesses, but also the parties to the proceeding.

SILOR ASSOCIATES S.A. V BHARAT HEAVY ELECTRICAL LIMITED 213(2014)DLT312

“There is nothing in the Act to contra indicate the existence of jurisdiction/power in the tribunal to require the parties to produce documents, exhibits or other evidence, as the arbitral tribunal may determine.

The aforesaid provision has the effect of vesting the tribunal with much greater autonomy in the matter of regulating its procedure for conduct of the arbitration proceedings, than that exercised by a civil court-which is bound by the rigour of the Code of Civil Procedure (CPC) and the Indian Evidence Act.

The scheme contained in Section 19 of the Act is not to denude the arbitral tribunal of its power to regulate its procedure for effective and expeditious conduct of the arbitration proceedings in a transparent and fair manner.

On the contrary, the legislative intent appears to be vest the arbitral tribunal with autonomy and flexibility in the matter of conduct of its proceedings so as to expedite the proceedings and cut the procedural wrangles witnessed in courts - which are governed by the CPC and the Evidence Act.”

SILOR ASSOCIATES S.A. V BHARAT HEAVY ELECTRICAL LIMITED 213(2014)DLT312 (Contd.)

“Therefore, it is evident that the arbitral tribunal is empowered on its own, without taking resort to Section 27 of the Act, to direct, a party to produce documents, and upon the failure to comply with the tribunals direction to produce documents, the aggrieved party-who is aggrieved by the non production of documents, may either require the arbitral tribunal to draw an adverse inference against the defaulting party, or may choose to require the arbitral tribunal to enforce the direction to produce the relevant document with the assistance of the court by resort to Section 27 of the Act.”

Bharat Heavy Electrical Limited v Silor Associates S.A2014(3)ARBLR522(Delhi)

Bharat Heavy Electrical Limited v Silor Associates S.A., the Division Bench of Delhi High Court while concurring with the view taken by the Ld, Single Judge held, “thus, if an application is filed before a tribunal requiring a party before the tribunal to produce a document in its power and possession, the tribunal would be competent to deal with the same without any reference being made to a court.”

CONCLUSION

The Supreme court of India in FCI v Joginderpal Mohinderpal (1989)2 SCC 347, held, “we should make the law of arbitration simple, less technical and more responsible to the

actual realities of the situation, but must be responsive to the canons of justice and fair play and make the arbitrator adhere to such process and norms which will create confidence, not only by doing justice between the parties, but by creating a sense that justice appears to have been done”.

The successive interpretations of the relevant provisions of the Act of 1996 by the Supreme Court of India and various High Courts imply that the arbitral tribunal has power to direct the parties for discovery and production of the documents despite there being no specific provision under the Act of 1996.

This interpretation is in the direction to achieve the aforementioned goal and to create confidence among the international community that Indian laws relating to arbitration are at par with the corresponding international arbitration laws and practice.

RECOMMENDATION

It is recommended that the Indian legislators should consider making specific provisions under the Act of 1996 empowering the arbitral tribunal, to issue directions for discovery and production of the documents to the parties instead of leaving this issue open for judicial interpretation.

THANK YOU