What is Section 27 of Arbitration and Conciliation Act

Court assistance in taking evidence during Arbitration

CHAPTER V

Conduct Of Arbitral Proceedings

Section 27. 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;

(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.

Scope of Section 27 of Arbitration and Conciliation Act, 1996

Section 27 of the Arbitration and Conciliation Act, 1996, as amended upto date, lays down a mechanism whereby the arbitral tribunal or a party to the dispute, upon seeking the approval of the arbitral tribunal, can seek assistance of the Civil Court in taking evidence.

This is one of the several legal provisions of the Arbitration and Conciliation Act, 1996 which permits the judicial interference in an arbitration proceedings.

Any kind of Judicial intervention is always looked down upon a matter of hardship as these interventions are generally perceived to be reason of causing delay in completion of proceedings before Arbitral Tribunal. 

However the same can not be said about Section 27 in so far as it is aimed to fast track and assist the Tribunal in completion the recording of Evidence.

The salient features of Section 27 are:

1. Under Section 27 the Civil Court is not carrying out an ‘adjudicatory’ duty and as such court cannot revisit the arbitral tribunal finding or view on admissibility, relevancy, materiality, and weight of any evidence.
2. However, the civil court do have the power to decline such request of the arbitral tribunal under following circumstances:
   • if such prayer is beyond the power of the court, for example summoning of a witnesses from foreign country;
   • if such prayer is not as per the law applicable to court for taking evidence;
   • where either of the disputing party can be prejudiced by it during a criminal proceeding;
   • where the Court is of the view that documents sought are privileged/confidential;
   • where the Court finds that the arbitral tribunal has passed the order without application of mind;
   • where the Court finds that the arbitral tribunal has passed an order based on a misconception of the law.

When the Court finds no such infirmity the court can agree to the request of the arbitral tribunal.