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Report No. 176

2.16.1 Amendments to section 24:

Hearings and written proceedings: It has again been suggested by several retired Judges acting as arbitrators that in almost every arbitration in our country, at least, one party is interested in delaying the conduct of arbitral proceedings and for that purpose, number of adjournments are sought at the stage of adducing evidence. It has been pointed out that parties and their counsel in India, still think that an arbitral tribunal is like a court and raise all sorts of objections during the proceedings when oral evidence is being adduced.

There is, it is suggested, no reason as to why the examination-in-chief of a witness should not be allowed to be completed by way of "evidence through affidavit" so that the oral evidence may be restricted to cross-examination and re-examination. Further, on some occasions, the counsel insist that the evidence be recorded in a 'question and answer' form leading to a lot of waste of time. The arbitrator is, in such a situation, helpless.

It has been, therefore, suggested that more control is to be given to the arbitrators over the proceedings and provision be made enabling examination-in-chief by evidence through affidavit. Moreover, the time schedule fixed by the arbitrators, is never observed by the parties strictly. The Commission, after careful consideration, has felt that, because of ground realities in India and the mindset of parties and counsel in thinking that the arbitral tribunal is like any other court, an amendment of sec. 24 is necessary omitting the words relating to agreement of parties in fixing the time schedule.

The Commission has agreed to amend section 24 so as to incorporate these valuable suggestions. Sub-section (1) is amended and sub-section (1A) is added. It is also provided that parties will be bound by the time schedule fixed by the arbitral tribunal, unless it is extended. The procedure in this behalf is to be prescribed by the High Court as stated in sub-section (1) of section 24. In fact Redfern and Martin has pointed out (para 1.12.5):

"The large American Law firms continue to consider international arbitration as but one kind of litigation among others. As a partner in a leading New York Law firm observed:

"Arbitration is considered by us to be an adjunct to 'litigation' - litigation in courts. It is simply a different forum"

The Arbitration and Conciliation (Amendment) Bill, 2001 Back

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