Exploring the Use of UNCITRAL’s Arbitration Rules and Materials in Indian Ad Hoc Arbitrations


A.   Introduction


This article explores the use of United Nations Commission on International Trade Law (UNCITRAL) materials[1] like UNCITRAL Arbitration Rules, Notes on Organising Arbitral Proceedings, Model Law on International Commercial Arbitration, or a new adaptation of these materials for use in ad hoc arbitrations in India. In particular, the article explores the possibilities of mandating or encouraging the use of UNCITRAL arbitration materials in arbitrations or to create a new set of rules based on the existing UNCITRAL arbitration materials for ad hoc arbitrations in India.

 

Ad hoc arbitrations depend on the parties and the arbitrators to set the procedural norms. Only in some ad hoc arbitrations, parties mutually agree to or the arbitrators set out detailed procedural rules. It is impractical to expect that a similar effort can be done in most ad hoc arbitrations. UNCITRAL Arbitration Rules are a popular solution to the lack of arbitral rules for ad hoc commercial arbitrations, though their popularity is high in investment treaty arbitrations.

 

The Central Government has not exercised its rule-making power under Section 84 of the Arbitration and Conciliation Act, 1996 (A&C Act, 1996) to prescribe any rules for ad hoc arbitrations. This article also highlights the heavy influence of UNCITRAL Model Law on International Commercial Arbitration and UNCITRAL Arbitration Rules on the A&C Act, 1996 for the procedural aspects of ad hoc arbitrations in India. Hence, this article explores whether rules can be formed under Section 84 of the A&C Act, 1996 to give UNCITRAL materials or their adaptation in the form of new ad hoc arbitration rules an optional or a mandatory status in India. If that may not be done then other possible alternatives are discussed.

 


B.   A Summary of UNCITRAL Arbitration Rules


UNCITRAL Arbitration Rules, originally endorsed by the United Nations General Assembly in 1976, have multiple versions. But the present rules (last modified in 2013 with expedited arbitration rules coming into force in 2021) mandate that parties to an “arbitration agreement concluded after 15-8-2010 shall be presumed to have referred to the 2013 Rules”[2]. This article’s discussion is based on the UNCITRAL Arbitration Rules as revised in 2013.  The UNCITRAL Arbitration Rules are structured in four sections:

 

Section 1: Introductory rules (Articles 1-6)

Section 2: Composition of the Arbitral Tribunal (Articles 7-16)

Section 3: Arbitral proceedings (Articles 17-32)

Section 4: The award (Articles 33-43).

 

UNCITRAL’s website in its “frequently asked questions” section explains the difference between the UNCITRAL Model Law on International Commercial Arbitration and UNCITRAL Arbitration Rules as being their intended users and uses. The UNCITRAL Model Law on International Commercial Arbitration provides guidance to States enacting an arbitration law, while parties to an ad hoc arbitration can choose UNCITRAL Arbitration Rules to regulate ad hoc, arbitral proceedings. UNCITRAL itself explains the difference as:

 

“The UNCITRAL Model Law provides a pattern that lawmakers in National Governments can adopt as part of their domestic legislation on arbitration. The UNCITRAL Arbitration Rules, on the other hand, are selected by parties either as part of their contract or after a dispute arises, to govern the conduct of an arbitration intended to resolve a dispute or disputes between themselves. Put simply, the Model Law is directed at States, while the Arbitration Rules are directed at potential (or actual) parties to a dispute.”[3]

 

UNCITRAL Arbitration Rules provide a rule-based procedural framework, yet they are flexible enough to support party autonomy in arbitration. They allow parties to override the rules by an agreement[4].  UNCITRAL Arbitration Rules preserve party autonomy by allowing modification of the rules for specific needs of the parties.

 

Very recently, UNCITRAL Expedited Arbitration Rules have come into force. Expedited Arbitration Rules that were adopted by the UNCITRAL on 21-7-2021 entered into force on 19-9-2021[5]. These expedited rules apply as a voluntary choice of parties. As A&C Act, 1996 has its own “fast track procedure” in Section 29-B that pre-dates the UNCITRAL Expedited Arbitration Rules coming into force, a detailed comparison is not undertaken in this article’s scope.

 


C.   India’s Arbitration and Conciliation Act, 1996 and the UNCITRAL Arbitration Rules


The Law Commission in its 246th Report recognised the key source of India’s A&C Act, 1996’s text being the UNCITRAL Model Law on International Commercial Arbitration. The Law Commission’s 246th Report notes, “The 1996 Act is based on the UNCITRAL Model Law on International Commercial Arbitration, 1985 and the UNCITRAL Conciliation Rules, 1980.”[6] As the UNCITRAL Model Law on International Commercial Arbitration and the UNCITRAL Arbitration Rules have a functional overlap, the A&C Act, 1996 also has deep linkages with the UNCITRAL Arbitration Rules. Further in this article the deep relationship of the A&C Act, 1996’s procedural provisions and the UNCITRAL Arbitration Rules are discussed in detail. At adoption of A&C Act, 1996, its provisions were rooted in the UNCITRAL Model Law on International Commercial Arbitration.

 


D.  UNCITRAL Notes on Organising Arbitral Proceedings


A relatively lesser known UNCITRAL document is titled, UNCITRAL Notes on Organising Arbitral Proceedings (UNOAP). While the UNCITRAL Arbitration Rules are a definitive, rule-based framework for ad hoc arbitrations, UNCITRAL noted a further need existed to assist Arbitral Tribunals with practical guidance to organise arbitral proceedings. This led to the adoption of UNOAP in 1996[7]. The UNOAP are structured as discussions that the Arbitral Tribunal and parties can have to structure, operate and smoothen the international commercial arbitration process. But the ideas underlying UNOAP are equally suitable for ad hoc Indian arbitrations due to the linkages of UNOAP with UNCITRAL Arbitration Rules, which in turn have a functional linkage to the A&C Act, 1996.

 


E.   Need for Rules in Indian Ad hoc Arbitrations


The Government and the arbitration community in India would like to see a growth in institutional arbitration. In a vast country like India, there is ample space for both ad hoc and institutional arbitration to grow. The stark reality is that ad hoc arbitrations will continue to dominate the count in arbitrations for some years to come. This situation will remain so until institutional arbitration expands across India. Hence, there is a clear and present need to think about rules for ad hoc arbitrations in India.

 

A major handicap in conducting ad hoc arbitrations in the author’s experience, whether as a counsel or as an arbitrator, is the absence of any procedural guidance apart from provisions in the A&C Act, 1996. For example, there are no norms for admission and denial of documents. Whatever local norms prevail for admission and denial of documents in court trials are followed in ad hoc arbitrations. The other challenge is that Section 19 (determination of rules of procedure) is vague. It neither rules out nor specifies in what way Civil Procedure Code, 1908 or Evidence Act, 1872 will apply in arbitrations. Section 19 merely says, “The Arbitral Tribunal shall not be bound … [CPC, 1908 and Evidence Act, 1872].” Different arbitrators apply this “shall not be bound…” mandate as chancellor’s foot – sometimes CPC and evidence law is followed too strictly and sometimes too loosely. This is not to argue that CPC or any evidence law should be made applicable to arbitrations. But some definite guidance as rules for ad hoc arbitrations for evidentiary procedure would be very useful. This article proposes a solution to this problem based on UNOAP’s guidance.

 


F.    Comparing UNCITRAL Arbitration Rules and Arbitration and Conciliation Act, 1996’s Procedural Provisions


UNCITRAL Arbitration Rules provide basic mechanics of conducting arbitration by giving simple, clear procedural rules that can be applied in an arbitration. Several provisions of UNCITRAL Arbitration Rules are already present in pari materia form in the A&C Act, 1996. For example, Article 19 of UNCITRAL Arbitration Rules enables the arbitrator to determine language of the arbitration, subject to the choice of the parties. Article 19 of the UNCITRAL Arbitration Rules is effectively mirrored in Article 22 of the UNCITRAL Model Law on International Commercial Arbitration and hence also in Section 22 of the A&C Act, 1996. But not all the rules in the UNCITRAL Arbitration Rules have same or similar linkages to the provisions of the A&C Act, 1996 as discussed next.

 

            In ad hoc arbitrations in India, the A&C Act, 1996 provides minimal guidance regarding how statement of claim (SOC) and statement of defence (SOD) can be structured. Section 23 of the A&C Act, 1996 prescribes requirements for SOC and SOD. The details required by Section 23 of the A&C Act, 1996 for SOC and SOD are: “… 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 these particulars, unless the parties have otherwise agreed as to the required elements of those statements….” A&C Act, 1996’s Section 23’s cryptic guidance is rooted in Article 23 of the UNCITRAL Model Law on International Commercial Arbitration, which merely prescribes that the claimant in its SOC shall state “… facts supporting his claim, the points at issue and the relief or remedy sought”.

 

In contrast to Section 23 of the  A&C Act’s limited guidance regarding contents of SOC, Article 20 of the UNCITRAL Arbitration Rules provides very specific guidance to parties in arbitration.  Article 20(2) specifies that SOC shall include the following particulars:

(a)  the names and contact details of the parties;

(b)  a statement of the facts supporting the claim;

(c)  the points at issue;

(d)  the relief or remedy sought; and

(e)  the legal grounds or arguments supporting the claim.

 

As can be seen, the A&C Act, 1996 in Section 23 adopts UNCITRAL Arbitration Rules’ Article 20(2)’s clauses (b), (c), (d) but somehow omits clauses (a) and (e), which are critical in any arbitration. This is so because Article 23 of the UNCITRAL Model Law on International Commercial Arbitration also does not include UNCITRAL Arbitration Rules’ clauses (a) and (e), hence the omission of those same clauses can be seen in Section 23 of the A&C Act, 1996. Further, Section 23 of the A&C Act, 1996 and Article 23 of the UNCITRAL Model Law on International Commercial Arbitration make elements of SOC subject to parties’ agreement, but UNCITRAL Arbitration Rules’ Article 20 does not do so by stating that SOC “shall include” the specified elements. Hence, for specific issues UNCITRAL Arbitration Rules provide more definitive procedural guidance than UNCITRAL Model Law on International Commercial Arbitration or even its adaptations in the A&C Act, 1996’s provisions.

 

UNCITRAL Arbitration Rules’ Article 20(3) also requires that a copy of the contract or legal instrument out of which the arbitration arises along with the arbitration agreement shall be annexed to SOC. Section 23 of the A&C Act, 1996 has no such requirement, although this would be a basic need in any arbitration. Article 20(4)’s requirement is that SOC should, as far as possible, be accompanied by all documents or references to those documents that are relied upon by the claimant, while Section 23 of the A&C Act, 1996 states that parties “may” submit with their statements all documents or references to documents with their statements.

 

UNCITRAL Arbitration Rules’ Article 20 specifies requirements for SOC and Article 21 specifies SOD’s requirements. In contrast, A&C Act, 1996’s Section 23 merges requirements for SOC and SOD into one single rule. Article 21(2) specifically requires replies to Article 20’s SOC elements viz. statement of the facts supporting the claim and legal grounds, points at issue, relief or remedy sought and arguments supporting the claim, while Section 23 has no such specificity of response in the SOD. Both Section 23 and Article 21 provide for set-off and counterclaim.

 

One unique aspect of UNCITRAL Arbitral Rules’ Articles 20 and 21 is that they allow adoption of notice of arbitration or its reply as party’s pleadings provided they comply with the specified requirements of contents of SOC and SOD. A&C Act, 1996 does not contain such a provision. A&C Act, 1996’s Section 23(3) permits SOD and SOC to be supplemented or amended, similarly Article 22 allows the same. Section 23(3) enables the Arbitral Tribunal to reject the amendment or supplement having regard to delay. While Article 22 has a similar provision as Section 23(3), it goes further by not allowing amendments that extend claim or defence beyond the jurisdiction of the Arbitral Tribunal.

 

As regarding challenge to the Arbitral Tribunal jurisdiction and the Tribunal’s power to determine the same is in Article 23 and has also been enacted in Section 16 of the A&C Act, 1996. Both provisions are substantially similar in terminology and scope.

Article 24 has a specific provision for further written statements at the discretion of the Arbitral Tribunal, but A&C Act, 1996 has no such provision, particularly in Section 23 that provides for statements of claim and defence.

 

Article 25 specifies periods of time for the communication of written statements that should not exceed 45 days unless the Arbitral Tribunal extends the time period. A&C Act, 1996 does not specify time for filing SOD or SOC but specifies by Section 23(4) an outer limit of six months for completing pleadings from the date notice of arbitration has been received by the arbitrator(s).

 

A&C Act, 1996’s scheme for interim relief is different from Article 26. A&C Act, 1996 seeks to grant the Tribunal with powers that are pari materia to a civil court’s interim relief powers while trying a civil suit. Article 26 is generally worded to balance equities in granting interim relief.

 

For evidence, A&C Act, 1996’s Section 19(4) provides guidance similar to UNCITRAL Arbitration Rules’ Article 27(4) that the Tribunal shall determine admissibility, relevance, materiality and weight of any evidence. Further, Section 19(1) provides cryptic guidance that in an arbitration under the A&C Act, 1996, the Arbitral Tribunal shall not be bound by the Code of Civil Procedure, 1908 (5 of 1908) or the Evidence Act, 1872 (1 of 1872). Does “not be bound by” civil procedure or evidence law, mean that they have to be followed but can be ignored at will or a tribunal can be totally free to decide rules of civil procedure and evidence? Article 27 puts burden of proof on the parties asserting facts that support claim or defence, but A&C Act, 1996 has not such counterpart regarding burden of proof. Article 27 allows witnesses including experts who are related to the party or the arbitration to testify and also give their evidence through a signed written statement.

 

A&C Act, 1996’s Section 26 has a provision for a tribunal appointed expert but there is no mention of a bar on being an expert witness being a related party similar to Article 27. The process for appointment of an expert is consultative under Article 29, while in Section 26 the power to appoint an expert is with the Arbitral Tribunal but subject to an agreement by the parties.

 

Article 27(3) enables the Arbitral Tribunal to order document production by the parties within a time frame, but A&C Act, 1996 grants no such specific time-bound document production powers to the Arbitral Tribunal.

 

Equal treatment of the parties is mandated both by Article 17(1) and Section 18, A&C Act, 1996.

Joinder of parties is possible under Article 17(5) provided that the party to be joined was a signatory to the arbitration agreement. In Section 2(1)(h), “party” is defined as a party to the arbitration agreement. But in A&C Act, 1996 there is no specific provision for the powers of Arbitral Tribunal to join parties.

 

By recent amendment, A&C Act, 1996 has included a specific provision of Section 42-A for maintenance of confidentiality in arbitration by the arbitrator, the arbitral institution and the parties, only exception being disclosure of the award for implementation and enforcement purpose. The UNCITRAL Arbitration Rules have no specific provision for confidentiality of the arbitration proceedings, but Article 28(3) states that hearings will be in camera unless parties agree otherwise.

 

Article 28 requires adequate notice of hearings to the parties, a requirement also mirrored in Section 24(2). Under the UNCITRAL Arbitration Rules, only the hearings are to be held in camera as mandated by Article 28(3) unless the parties agree otherwise. Under Article 34(5), an award may be made public either by the consent of all the parties, under a legal duty or to pursue proceedings before courts or authorities. There is no general duty of confidentiality under the UNCITRAL Arbitration Rules. On the contrary, under the related UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration, there are transparency provisions subject to a few exceptions.

 

Under Article 16, the parties waive all their claims against arbitrators, appointing authority and anyone appointed by the Arbitral Tribunal except for intentional wrongdoing. Recently, the A&C Act, 1996 has added Section 42-B for protection of actions taken by an arbitrator in good faith by barring any suit or legal proceedings against the arbitrator.

 

The form and effect of award is quite similar under both the A&C Act, 1996 and the UNCITRAL Arbitration Rules. As per Article 34(2), the award is final and binding between the parties. Similarly, under Section 35 the award is final and binding on the parties and anyone claiming under them. There is further similarity in laws and rules applicable to the substance of the dispute in Article 35 and Section 28. For ad hoc arbitrations in India, the A&C Act, 1996’s Section 28(1)(a) specifically applies Indian law as substantive law. For international commercial arbitrations seated in India, Section 28(1)(b) mirrors the provisions of Articles 35(1) and (2) where substantive law is one designated by parties and in the alternative it is to be decided by the Arbitral Tribunal to be appropriate.

 

Interestingly, A&C Act, 1996 only by an amendment in 2019 included in Section 28(3)  Article 35(3)’s requirement that the Arbitral Tribunal shall decide the dispute in accordance with the terms of the contract, if any, and shall take into account any usage of trade applicable to the transaction. This indicates that the Central Government and the Parliament are constantly referring to UNCITRAL Arbitration Rules to improve the A&C Act, 1996. This is being done by including some aspects, e.g., Article 28(3) that mirrors Article 35(3) of the UNCITRAL Arbitration Rules into the A&C Act, 1996 that were not earlier included.

 

Provisions for default under Article 30 are present similarly in Section 25. Under Article 30, upon a claimant’s default in communicating its statement of claim, the Arbitral Tribunal shall terminate the arbitral proceedings unless any other matter needs to be determined. Section 25(a) also mandates the same effect of termination of arbitral proceedings. On respondent’s default in communicating its statement of defence, both Section 25(b) and and Article 30(1)(b) provide for continuation of proceedings without considering such default as an admission of the claimant’s claim.

 

Curiously, Section 25(b) does not include a similar effect for claimant’s failure to file a defence to respondent’s counterclaim, while in contrast Article 25(b) has a specific provision for the same. This omission can perhaps be explained as A&C Act, 1996 included provision to file a counterclaim as an amendment to Section 23. This amendment in the form of Section 23(2-A) came on the statute by the 2016 amendment (with effect from 23-10-2015). Hence, perhaps the effect of not filing a defence to counterclaim is not yet considered by the statutory draftsperson. Both Section 25(c) and Article [30(2) and (3) read together] provide that if a party that fails to appear at hearings, the Arbitral Tribunal may continue the proceedings and make the award with the evidence before it.

 

Provisions for awards, interim awards, correction of awards, finality, termination, settlements and substantive law are broadly similar in UNCITRAL Arbitration Rules. For example, Articles 33 (decisions), 34 (form and effect of the award), 35 (applicable law, amiable compositeur), 36 (settlement or other grounds for termination), 37 (interpretation of award), 38 (correction of the award) and 39 (additional award). These articles of UNCITRAL Arbitration Rules are pari materia with A&C Act, 1996’s Sections 28 (rules applicable to substance of disputes), 29 (decision making by panel of arbitrators), 30 (settlement), 31 (form and contents of arbitral awards), 32 (termination of proceedings) and 33 (correction and interpretation of awards; additional award).

 

A&C Act, 1996’s costs and related provisions are in Section 31(8), which links to Sections 31-A (regime for costs), 38 (deposits) and 39 (lien on arbitral award and deposit as to costs). In comparison, UNCITRAL’s cost provisions are in Articles 40 (definition of costs), 41 (fees and expenses of arbitrators), 42 (allocation of costs) and 43 (deposit of costs). The heads of cost claims are broadly similar in Article 40 and Section 31-A(1). While Arbitral Tribunal’s fees are components of costs under both the UNCITRAL Arbitration Rules and A&C Act, 1996, both contain different approaches for determining the quantum of Arbitral Tribunal fees.

 


G.  Application to Indian Ad hoc Arbitrations


There is a common thread of UNCITRAL Model Law on International Commercial Arbitration underlying both the UNCITRAL Arbitration Rules and the A&C Act. Hence, the differences and similarities between UNCITRAL Arbitration Rules and the A&C Act, 1996 are but natural to occur. UNCITRAL Arbitration Rules are not the best choice as a suggested new set of rules for ad hoc arbitrations in India. The reason for UNCITRAL Arbitration Rules not being the best option for ad hoc arbitrations in India is that the A&C Act, 1996 text has several overlaps and omissions compared to the text of UNCITRAL Arbitration Rules. Therefore, if the UNCITRAL Arbitration Rules are recommended as the rules in ad hoc arbitrations in India, there will be endless debates during the challenge to the award arising from the differences or similarities between the UNCITRAL Arbitration Rules and the A&C Act, 1996. Hence, there is a need to carry the improved provisions in the UNCITRAL Arbitration Rules into any arbitration rules for ad hoc arbitrations in India.

 

The author does not support any mandatory set of rules being enacted for ad hoc arbitrations under Section 84, A&C Act, 1996’s rule-making power or otherwise. But given the benefits of a set of rules in ad hoc arbitrations, there are two possible options:

(1) Parties can choose from a set of one or more rules that can be enacted or recognised under Section 84 as a non-binding recommendation; or

(2) design a voluntary code with simple but defined rules that are championed by users of arbitrations to cover most beneficial aspects of the UNCITRAL Arbitration Rules, UNOAP and any other ideas from institutional rules that can be used in ad hoc arbitrations.

 

Either of the above options can be beneficial for ad hoc arbitrations, because they retain the procedural flexibility and party autonomy while providing definite procedural guidance. With non-statutory nature of a voluntary set of rules for ad hoc arbitrations, they can be amended easily. The State and Central Governments can recommend adoption of such a set of rules in their own arbitrations to make them popular.


H.  Features of Any Future Rules for Ad Hoc Arbitrations


A few concepts to include in any set of rules for ad hoc arbitrations are described next. A major issue to consider in any proposed rules for ad hoc arbitration is the evidentiary procedure. Arbitral Tribunals in India fall back on procedure of providing proof of contents of documents as per the Evidence Act, 1872. The A&C Act, 1996’s Section 19 provides vague guidance that neither fully applies nor completely exempts application of the Evidence Act, 1872. Further, Section 1 of the Evidence Act, 1872 makes that law inapplicable to proceedings before arbitrator. Yet, invariably, the same procedure used in trials is used to “mark” documents as admitted in evidence. Proof of contents of each document needs to be proved with primary evidence i.e. the original document itself or by alternate methods applicable to secondary evidence. Further, electronic evidence has to be admitted via a certificate method (Section 65-B of the Evidence Act, 1872). The highly adversarial process of proving contents of documents as practised in trials is not suitable for arbitrations, which are supposed to be more efficient than trials. In some in arbitration in India, the arbitrators with the consent of the parties now mark everything in evidence unless specific objections are taken. But there is no uniform guidance or practice available to arbitrators and parties to admit documentary evidence in arbitrations.

 

Next there are challenges of document production or discovery. While Civil Procedure Code, 1908 has provisions for discovery under Order 11, the process is strongly judge-centric and time consuming. Any future rules for ad hoc arbitrations should widen the scope of discovery inter se between the parties.

 

One solution for evidentiary issues in ad hoc arbitrations would be to adopt the guidance of UNOAP for evidence in any future rules for ad hoc arbitrations. Item 13 of UNOAP provides guidance for documentary evidence.

 

Document production guidance in UNOAP is under Note 77 on the lines of popular, “Redfern Schedule”:

“77. Requests for disclosure of documents may be made in various ways but are typically recorded in a schedule that is provided to the other party and sets out not only the documents requested, but also the reasons for the request and often, as well, a statement as to why the requested documents are believed to be in the possession of the other party and are not otherwise available to the requesting party. The other party may then state in the schedule whether it agrees with the request and if not, the reasons. Usually, the parties first exchange the disclosed documents only among themselves and then they determine which of the disclosed documents to submit as evidence.”

 

UNOAP Note 78 gives guidance when document production is contested:

“78. Where requests for disclosure of documents are contested, the requesting party may decide to submit the contested requests to the Arbitral Tribunal for its determination whether to order either or both parties to disclose documents. The Arbitral Tribunal will often add to the schedule a record of its decision whether to order disclosure on any contested requests.”

 

Further guidance is provided in Notes 80 and 81 when authenticity of a document is questioned:

“(d) Assertions about the provenance and authenticity of documentary evidence

    1. At an early stage of the arbitral proceedings, the Arbitral Tribunal will often specify that unless a party raises objections to any of the following conclusions within a specified period of time, it will be understood that: (a) documentary evidence is accepted as having originated from the source indicated in it; (b) a dispatched communication is accepted without further proof that it has been received by the addressee; and (c) a copy is accepted as a faithful reproduction of the original. A statement by the Arbitral Tribunal to this effect can simplify the introduction of evidence and discourage unfounded and dilatory objections.
    2. If there are issues regarding the provenance, authenticity or completeness of documentary evidence, the Arbitral Tribunal may require verification thereof; it may further require that the evidence in its original form remain accessible to the parties and the Arbitral Tribunal.”

 

More guidance for presenting documentary evidence to avoid duplication is given in Notes 82, 83, 84, 7 and 10. In a gist, these UNOAP notes provide for the following issues: (i) avoiding duplicate production of a document by making it sufficient if one side produces it; (ii) preparing a joint set of common documents; (iii) preparing a set of core or working document (called “convenience compilations” in India at times); (iv) expert summaries; (v) flow of communications; and (vi) practical methods of handling the document sets.

 

As can be seen almost none of the above-discussed documentary evidence handling practices are commonly used in India (exceptions apply) in trials or arbitrations. The UNOAP guidance has substantial due process safeguards built into the process without diluting the arbitration system’s famed procedural flexibilities and party autonomy intact. Hence, any future set of rules for ad hoc arbitrations can incorporate the guidance in UNOAP for evidentiary issues as a practical utility.

 

Guidance in the form of suggestions, hints, notes, recommendations, etc. depend on parties mutually agreeing to follow them. Then it is left to the arbitrator to form effective procedural norms in an arbitration with no real power of sanctions for violation of even mutually agreed procedural norms. There is a need in Indian ad hoc arbitrations for a set of clear, simple rules on the lines of UNCITRAL Arbitration Rules for evidentiary and other procedures. Any such rules for ad hoc arbitrations need to give more sanctioning powers to the Arbitral Tribunal on lines of A&C Act, 1996’s Section 24(1)’s second proviso that enables the Arbitral Tribunal to impose even exemplary costs for seeking adjournments without any sufficient cause. The arbitrator in an ad hoc arbitration can then enforce such rules, which the parties choose in their arbitration agreement or later.

 


I.     Conclusion


To make ad hoc arbitrations more effective in India, a need exists for a set of simple, easy to implement and well-thought-out procedural rules. Such rules should include present best practices in international commercial arbitrations for handling documentary evidence rather than relying on Evidence Act, 1872 or Civil Procedure Code, 1908. The provisions of such ad hoc arbitration rules should enable arbitrators to better control the arbitration proceedings with more effective provisions for costs and sanctions. Such ad hoc arbitration rules, mutually chosen by the parties in arbitration agreements or later, should be available as a non-binding option through a recommendation via enacted list of one or more optional rules under Section 84.

 


† Hasit B. Seth practices as a counsel in the Bombay High Court, India and in arbitrations.

[1]All UNCITRAL materials referred in this article are freely available at <www.uncitral.un.org>, hence their sources are not referred repeatedly.

[2]Art. 1(2), UNCITRAL Arbitration Rules (2013 Revision).

[3]Frequently Asked Questions – Arbitration, UNCITRAL (25-10-2021, 6.42 p.m.), <HERE>.

[4]Art. 1(1), UNCITRAL Arbitration Rules (2013 Revision).

[5]UNCITRAL Press Release dated 16-9-2021, UNIS (26-10-2021, 12.09 p.m.) <HERE>.

[6]Law Commission Report No. 246, p. 3.

[7]UNCITRAL Notes on Organising Arbitral Proceedings, preface, p. iii.

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