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Written Submissions in Arbitration

Written Submissions
Written Submissions



Once the arbitral tribunal has been established, the subsequent step involves the exchange and submission of written pleadings before the tribunal. The primary aim of these submissions is to furnish the arbitral tribunal with a comprehensive understanding of the dispute's subject matter and to delineate the pivotal facts underlying the claims and any counterclaims.

It is imperative to indicate that these written pleadings wield significant influence over the decision-making process of the arbitral tribunal.

The pertinent provision governing this process is Section 23 of the 1996 Arbitration Act, which states:

Section 23. Statements of claim and defence.

  • Within the stipulated time frame agreed upon by the parties or determined by the arbitral tribunal, the claimant is obligated to articulate the factual basis supporting their claim, delineate the points at issue, and specify the relief or remedy sought. Similarly, the respondent is required to articulate their defence concerning these particulars, unless an alternative agreement regarding the requisite elements of these statements has been reached by the parties.

  • The parties retain the prerogative to append all pertinent documents to their statements or make reference to the documents or other evidence they intend to submit.

2(A). Furthermore, the respondent, in support of their position, may present a counterclaim or assert a set-off, which shall be adjudicated upon by the arbitral tribunal, provided such counterclaim or set-off falls within the purview of the arbitration agreement.

  • Absent any contrary agreement between the parties, either party possesses the liberty to amend or supplement their claim or defence throughout the arbitral proceedings, unless the arbitral tribunal deems it inappropriate to permit such amendment or supplementation due to undue delay.



In conjunction with Section 23 of the 1996 Arbitration Act, subsection (3) of Section 24 assumes significance:

Section 24. Hearings and written proceedings.

(3) Any statements, documents, or other information presented to, or requests made before, the arbitral tribunal by one party shall be promptly conveyed to the other party. Moreover, any expert report or evidentiary document upon which the arbitral tribunal may base its decision-making shall be shared with all concerned parties.

Written submissions typically encompass a statement of facts, legal arguments, and a plea for relief. Additionally, these submissions include references to the evidence assembled by the parties at the time of submission. 

Therefore, they encapsulate the entire legal stance of the parties. It is essential to note that written submissions differ from contentious exchanges of allegations between parties in the form of notices.

They may take the form of a statement of claim, a statement of defence (in response to the statement of claim), and a rejoinder (a response to the statement of defence). If a counterclaim is raised, there exists a corresponding reply to the counterclaim and a rejoinder. 

In rare instances, the arbitral tribunal may allow the submission of a sur-rejoinder (a response to the rejoinder).

The arbitral tribunal possesses inherent authority to direct each party's attention to specific aspects of the claim and any counterclaims, thereby ensuring that the submissions focus on aspects deemed pertinent by the tribunal.

The 1996 Arbitration Act explicitly mandates the sharing of any statement, document, or information utilised by one party with the other. Additionally, if the arbitral tribunal relies on an expert report or evidentiary documents, it is obligated to share the pertinent documents with all parties involved.

Statement of Claim

A statement of claim serves as a comprehensive repository of the claimant's legal and factual assertions. As delineated in Section 23(1) of the 1996 Arbitration Act, it must encompass the factual foundation supporting the claim, the contentious issues, and the sought-after relief or remedy. 

According to Section 25(a) of the Act, the arbitral tribunal holds the authority to terminate proceedings should the claimant fail to furnish the statement of claim in adherence to Section 23(1) without demonstrating sufficient cause for the delay.

It is noteworthy that the legislature, in this context, refrains from mandating automatic termination of proceedings due to party-induced delays, instead vesting such discretion in the arbitral tribunal.

Nevertheless, should the claimant justify the delay, the arbitral tribunal retains the power to accept the statement of claim even beyond the prescribed deadline pursuant to Section 23(1) of the 1996 Arbitration Act. 

In the precedent-setting case of Wanbury Ltd v. Candid Drug Distributors, the Supreme Court established that the claimant may submit the statement of claim along with evidence within the timeframe agreed upon by the parties or as directed by the arbitral tribunal.

This latitude stems from the implicit authority bestowed upon the arbitral tribunal under Section 23(1) to determine the timeline for filing a statement of claim.

Furthermore, Section 25(a) of the 1996 Arbitration Act delineates that the arbitral tribunal may terminate proceedings in instances where parties fail to demonstrate 'sufficient cause' for delays in submitting their pleadings.

Additionally, the tribunal possesses the discretion to grant extensions to claimants for filing their statement of claim. This extends to the tribunal's authority to accept a statement of claim even subsequent to issuing an order for terminating proceedings. 

In the case of Srei Infrastructure Finance Limited v. Tuff Drilling Private Limited, the Supreme Court highlighted the distinction between Section 25(a) and Section 32(3) of the Act.

While the latter pertains to the termination of the mandate of the arbitral tribunal, rendering it functus officio following the issuance of the final award or for reasons outlined in Section 32(2), the former delineates a stalemate provision wherein the arbitral tribunal is barred from continuing proceedings due to a party's inaction, specifically the non-submission of the statement of claim.


Statement of Defence

In the statement of defence, the respondent offers a rebuttal to the statement of claim presented by the claimant, addressing each contention raised therein. The primary objective of the statement of defence is to afford the respondent the opportunity to present their version of the dispute to the arbitral tribunal, thereby upholding the fundamental tenets of due process. 

Notably, Section 18 of the 1996 Arbitration Act indicates the principle of equality among the parties, ensuring each party is accorded full opportunity to articulate its case.

Furthermore, pursuant to Section 23(2-A) of the Act, the respondent possesses the prerogative to assert a counterclaim or plead a set-off in response to the initial claim made by the opposing party.

The arbitral tribunal is tasked with adjudicating upon such counterclaims or set-offs, provided they fall within the ambit of the arbitration agreement. This provision ensures that counterclaims raised by the respondent are addressed within the same arbitral proceedings, thereby mitigating the risk of multiple proceedings and averting the possibility of conflicting awards. 

It is imperative to note that the inclusion of Section 23(2-A) in the 1996 Arbitration Act through the 2015 Amendment shows the legislature's intent to streamline the adjudicatory process. Nonetheless, it is essential to recognize that prior to the insertion of Section 23(2-A), counterclaims could still be adjudicated within the same arbitral proceedings.

Further Written Pleadings

Following the hearing, the arbitral tribunal holds the discretion to afford the parties an opportunity to submit post-hearing briefs aimed at addressing and elucidating any issues that may have arisen during the proceedings.

Section 23(3) of the 1996 Arbitration Act permits both parties to amend or supplement their claims and defences throughout the arbitral process, unless otherwise stipulated by mutual agreement or deemed inappropriate by the arbitral tribunal due to undue delay such amendments might entail. As previously discussed, party autonomy stands as the paramount consideration in arbitration proceedings. 

Hence, if the parties have mutually agreed to refrain from modifying any part of the pleadings or documents already submitted to the arbitral tribunal, any submission of additional material would be prohibited. Consequently, any award rendered by the arbitral tribunal based on such material could be subject to being set aside.

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