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Hearings in Arbitration


Hearings
Hearings

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Hearings in Arbitration Proceedings


In commercial arbitrations, hearings convene all involved parties, though oral hearings are not mandatory, especially in straightforward disputes or under expedited procedures.



However, arbitral tribunals typically prefer hearings for practical reasons. Section 24(1) of the 1996 Arbitration Act grants tribunals the discretion to decide on oral hearings unless agreed otherwise by the parties. These hearings are not public, necessitating agreement for third-party attendance.



Dates and locations for hearings are usually predetermined with party consent, allowing flexibility for meetings, witness testimonies, and document inspections. Section 20(3) permits tribunals to meet at any suitable location, even outside India.



Section 24 of the Act empowers tribunals to decide on the format of proceedings, whether oral or based on documents, and mandates oral hearings upon party request, ideally on a day-to-day basis without undue adjournments. Parties must receive sufficient notice of hearings and meetings for document inspections.

 
 

Despite the Act's silence on procedural specifics, trends in international arbitration offer guidance. Tribunals ensure parties are treated equally and have ample opportunity to present their case.



Typically, hearings begin with brief introductions followed by opening statements, witness examinations, and closing arguments. Tribunals may pose questions to counsels, witnesses, and experts.



Regarding the recent 2019 Amendment, Section 42A emphasises confidentiality in arbitration proceedings, except when disclosure is necessary for award implementation.



The COVID-19 pandemic has accelerated the adoption of technology in arbitration, shifting many proceedings to virtual platforms. The Indian Arbitration Forum's 2020 protocol on "Virtual Hearings for Arbitrations" outlines procedures for organising online hearings, emphasising technological functionality, security, and coordination among participants. These adaptations ensure the continuity and efficiency of arbitration proceedings amidst global challenges.


Proceedings after the Hearings 


After conducting a hearing, the arbitral tribunal proceeds to ensure the validity and enforceability of the arbitral award. While the 1996 Arbitration Act is silent on post-hearing proceedings, arbitrators often request post-hearing briefs, commonly termed "further written submissions" in Indian domestic arbitrations.



These submissions succinctly address legal and factual issues, respond to tribunal queries, synthesise evidence and facts, and present party conclusions.



The tribunal may exercise discretion to order "comprehensive" post-hearing briefs, encompassing all claims, legal arguments, and testimonies, which then serve as the sole basis for the tribunal's decision. Once the tribunal formally closes proceedings, parties cannot file additional submissions.



However, parties may reopen proceedings before the award issuance, rendering the tribunal functus officio, except for limited jurisdiction granted under Section 33 of the Act, permitting award correction or interpretation.

 
 


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