Author Name:   Odyssey

Power of arbitrator to delegate his duties in an arbitration proceeding or appointment of experts...

Power of Arbitrator to Delegate his Duties

The Arbitration and Conciliation Act, 1996 does not make any special reference as to the power of arbitrator to delegate his duties in a proceeding. However, under Sec.6 of the Act reference has been made as to the taking of Administrative Assistance in an arbitration proceeding. Along with this, under Secs.26 and 27, an arbitrator has been empowered to seek assistance from experts and from the court.

Sec6. Of the Act:
Sec.6 of the Act reads as “In order to facilitate the conduct of an arbitration proceeding, the parties, or the arbitral tribunal with the consent of the parties, may arrange for administrative assistance by a suitable institution or person.” This section provides freedom to the parties to choose suitable experts in arbitration as and when required to facilitate smooth conduct of the arbitration. In the context of Sec.6 “administrative assistance” includes services in respect of arbitration such as receiving and sending communications, arranging meeting, translation, interpretation etc.

Sec.26 of the Act:
Sec.26 lays down provision about appointment of expert by the arbitral tribunal for the purpose of obtaining expert evidence on the matters in issue. Sec. 26 is the most important section to be dealt with while discussing the delegation of powers by an arbitrator. The provisions laid down in Sec. 26 of the Arbitration Act are herein under given:

“ Expert appointed by arbitral tribunal.-(1)Unless otherwise agreed by the parties, the arbitral tribunal may-
(a) appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal, and

(b) require a party to give the expert any relevant information or to produce, or to provide access to, any relevant documents, goods or other property for his inspection.

(2)Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert shall, after delivery of his written or oral report, participate in an oral hearing where the parties have the opportunity to put questions to him and to present expert witnesses in order to testify on the points at issue.

(3)Unless otherwise agreed by the parties, the expert shall, on the request of a party, make available to that party for examination all documents, goods or other property in possession of the expert with which he was provided in order to prepare hid report.”

Thus we see that Sec. 26 empowers the arbitral tribunal to appoint one or more experts to take their reports on specific issues relating to the matter before it. However, the reports of the experts are merely advisory in nature, the arbitral tribunal decides the dispute and not the experts. The experts only provide assistance to the arbitral tribunal in matters in which their reports are sought for coming to a decision by the arbitral tribunal.

Sub-section(1) Clause(a) vests the arbitral tribunal with the power to order a party to provide the necessary information as to a matter to the experts. Moreover they can order a party to produce relevant documents, goods or other property for inspection/instruction of the expert. Sub-section(2) that the expert may participate in an oral hearing if the parties so request for interrogating and testifying expert evidences. Thus sub-section(2) of Sec. 26 affirms the Principle of Natural Justice as embodied in Sec.18 of the Act. Sec.23(3) provides that if the parties so requests, the expert shall make any documents available to the parties for their examination on which the expert report is relied.

Relevancy of Opinion of Expert in a dispute:
Secs.45-51 of the Indian Evidence Act deals with the relevancy of third parties in a suit. Sec. 45 says that:

“When the court has to form an opinion upon a point of foreign law or of science or art, or in questions as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts.”

To take the assistance from experts in solving an issue has been an old tradition of the courts. In some matters, there is need of professional or technical skill which the courts do not always possess. So in such cases the opinion of experts becomes crucial. As for example, when the court has to determine the cause of a ship-wreck or an air-crash, there may be many technical causes behind it and, therefore, the court will need the assistance of technicians, they being better acquainted with such cases. (Folokes v. Chadal, (1782) 3 Doug. K.B. 157)

The above section permits only the opinion of an expert to be cited in evidence. The weight that ought to be attached to the opinion of an expert is a different matter from its relevancy. The Act only provides about the relevancy of expert opinion but gives no guidance as to its value. However, it is settled legal position that ordinarily an expert opinion needs no corroboration, it cannot be treated to the same class of evidence as that of an accomplice and insist upon corroboration (Murari Lal v. Stat of M.P., AIR 1980 SC 531). An expert should be an independent person and not an associate of the company in whose favour his opinion was expressed (Ramnathan v. State of Tamilnadu, AIR 1978 SC 1204). Section.46 of the Indian Evidence Act, 1872 provides that facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of expert, when such opinions are relevant. The effect of the provision is that when the opinion of expert is relevant and has been cited, any fact which will either support his opinion or contradict it will also become relevant. It is to be noted that the provisions of the Indian Evidence Act, 1872 do not apply to the arbitral proceedings in strict sense.

But, in the context of arbitration, Sec.26 of the Arbitration and Conciliation Act, 1996 deals with experts appointed by arbitral tribunal. The appointment of expert by arbitral tribunal is common and recognised in civilised countries. It is to be noted that the arbitral tribunal is empowered and not obliged to take experts.

Arbitral Tribunal can Seek Assistance of Legal Experts:
Under Sec.26, the arbitral tribunal can with the prior consent of the parties may seek assistance of legal experts in an arbitration proceeding. This section specifically empowers the arbitral tribunal to appoint one or more experts i.e. legal expert, technical expert and financial expert and to report to the arbitral tribunal on specific issues to be determined by the tribunal.

Sec.27 of the Act:
Under Sec.27 the arbitral tribunal can seek assistance of the court in taking evidence by sue motu or on request of a party. The arbitral tribunal no power to issue summon to persons except the disputing parties in the arbitration.

Thus, in order to facilitate smooth conduct of an arbitration proceeding an arbitrator with the prior consent of the parties can delegate his functions to experts for their assistance in solving the dispute. The expert may be legal or a technical expert depending upon the nature of the issue to be decided. This process of delegation to experts has been well-recognised in civilised nations in suits and in arbitral proceeding.

The  author can be reached at: odyssey@legalserviceindia.com

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