Pankaj Sevta, Research Associate
It is pertinent to note that the Arbitration and Conciliation Act 1996 grants the power to an arbitral tribunal, failing agreement by the parties to the contrary, to appoint one or more experts in the capacity of a third party to report to it on specific issues to be determined by the Arbitral tribunal. It also requires a party to give the expert any relevant information or to produce, or to provide access to, any relevant document, goods or other property for his inspection ((Arbitration and Conciliation Act 1996, § 26(1).)). However, it cannot be ignored that since the provision is not mandatory and the parties may exclude such power. If in case this happens then the arbitral tribunal will have to decide the dispute without obtaining the necessary expertise which it itself lacks. However, in the absence of an agreement by the parties to the contrary, if a party so requests or if the tribunal considers it necessary, the expert, after the delivery of his written or oral report, shall participate in the oral hearing and parties will have the opportunity to question him. Moreover, for testifying the report of the expert on the points at issue ((Arbitration and Conciliation Act 1996, § 26(2).)), the parties will have the right to produce their own witnesses. Furthermore, in the absence to the agreement contrary, on request of a party, the expert is required to make available to that party all documents, goods or other property in his possession, which were given to him in order to prepare his report ((Arbitration and Conciliation Act 1996, § 26(3).)).
Function of the Expert as third party
It may be noted that arbitral tribunal appoints an expert in the capacity of a third party merely for technical assistance or expert advice, in order to understand complex and technical matters for arriving at a proper decision ((Sumeet Kachwaha, The Arbitration Law Of India: A Critical Analysis, Available at http://www.kaplegal.com/upload/pdf/arbitration-law-india-critical-analysis.pdf (Last accessed on 14/08/2013).)). It is however to be further noted that an expert is not a part of the tribunal, which must exercise its own judgment about the advice given to it by the expert ((Odyssey, Power of Arbitrator to Delegate his Duties, Available at http://www.legalservicesindia.com/article/profile.php?author_id=300 (Last Accessed on 17/08/2013).)). The function of an expert therefore is confined to give impartial advice to the arbitral tribunal on matters within his expertise ((Dharmendra Rautray, Arbitration In India: An Overview, Available at http://ipba.org/media/fck/files/Arbitration%20in%20India.pdf (Last accessed on 14/08/2013).)). Decision making is the exclusive function of the tribunal itself, which cannot be delegated to anybody else i.e. delegates non potest delegare. A tribunal may obtain legal advice on the drawing up of its award to ensure that it is in a proper form and it may consult an expert on some issue required to be dealt with in the award, but the tribunal may not delegate the making of its award to another. The tribunal must exercise its own judgment in deciding the issues ((Russell on Arbitration, 247 (23rd Ed., 2003).)). An award where the arbitral tribunal delegates his function of decision making to a third party then it will be invalid ((OP Malhotra, The Law and Practice of Arbitration and Conciliation 865 (2nd Ed., 2006).)).
Report of the expert
The appointment of an expert as a third party is for providing technical assistance and advice to the arbitral tribunal on specific issues to be determined by it ((Ibid.)). For this purpose, each one of the parties is required to give the expert any relevant information or to produce, or to provide access to, any relevant document, goods or other property for his inspection. After having examined the specific issues referred to him, the expert, the expert is required to submit his report to the tribunal. The report is normally furnished in writing, generally at the same time as any written statement of a witness of facts. In any case, it must be submitted prior to the commencement of hearing before the arbitral tribunal, so that the testimony of the report may be tested before the arbitral tribunal ((See also G.K Kwatra, Arbitration And Conciliation Law Of India (7th Ed. 2008).)). If each party presents conflicting evidence of technical opinion, the expert witness must be prepared to appear in person before the arbitral tribunal for examination. Otherwise, the arbitral tribunal would have no means of evaluating the weight that should be given to the opinions presented by one side or the other. Apart from the tribunal appointed expert as third party, the parties may wish to adduce their own expert opinion evidence to support their respective cases in the arbitration, with the approval of the tribunal, which normally is not refused ((OP Malhotra, The Law and Practice of Arbitration and Conciliation 865 (2nd Ed., 2006).)).
Presentation of Expert evidence
The tribunal may specify the form in which the expert’s evidence as a third party is to be given, the maximum number of experts to be relied on by the parties and the nature of the evidence to be given. It may provide that each party may adduce evidence from one expert in relation to the particular technical issues raised by the case and from one expert in relation to the particular technical issues raised by the case and from one expert in relation to the computation of the alleged loss. By specifying these matters in a direction, it will avoid multiplicity of experts from a party on the same issue. It will also help to prevent a situation where each party adduces expert evidence on different aspects of the case and there are then delays, whilst they seek to address the case put forward by the other ((Supra note 7., p. 208)).
Admissibility of expert evidence
The power of the arbitral tribunal to conduct the proceedings in the manner it considers appropriate includes the power to determine the admissibility, relevance, materiality and weight of any evidence ((Arbitration and Conciliation Act 1996, § 19(4).)). This applies to the admissibility of the expert evidence in its third party capacity as well. Furthermore, the arbitral tribunal should ensure that each party knows the substance of the expert evidence to be presented at the hearing with sufficient advance notice so that neither the party will be taken by surprise. Consequently, if at the hearing, an expert witness testifies to matters of opinion beyond what is contained in the report submitted by him to the arbitral tribunal and to the other party, such evidence should strictly speaking held to be inadmissible ((Supra note 8. P. 867)). However it can be seen that the arbitral tribunal generally permits such evidence to be adducted on terms that the other party will be given sufficient time for preparing and presenting his own further expert evidence in reply ((See also S.K. Chawla, Law of Arbritration and Concillation, Eastern Law House)).
Expert to provide documents etc. in capacity of a third party
In the absence of an agreement by the parties to the contrary, on the request of a party, the expert is required to make available to that party for examination, all documents, goods or other property in his possession which were provided to him for the purposes of preparing his report ((Arbitration and Conciliation Act 1996, § 26(3).)). The purpose of this requirement is to enable the party requesting for the information and documents etc, to examine the report made by the arbitrator on the basis of such information or materials ((Supra note 8. P. 868)). The reason is that it may be essential for the parties to test the correctness of the report in the arbitral proceedings by the cross-examination when the expert appears as a witness in the arbitral proceedings ((Ibid.)).
It is noteworthy to see that in some situations; even an expert tribunal may require advice of a specialist from another field, like on specific question of law. Section 26(1) mainly talks about the concerned appointment of one or more experts in the capacity of a third party to report to the tribunal on specific issues to be determined by it. It is needless to say that the expert must be independent of the parties, as well as the arbitral tribunal. Moreover, the parties may challenge the expert on the ground of lack of independence. Apart from this an expert as third party is entitled to ask for access to and disclosure of any relevant documents, goods, sample, property etc. however, to objection by any party. The expert must submit his report to arbitral tribunal in writing, setting forth his conclusions making copies to the parties. Therefore, it can be concluded that an expert appointed by the arbitral tribunal in the capacity of a third party plays a vital role in the functioning of an arbitral tribunal as well as in the ultimate dispute resolution process.