1. Arbitration Process Arbitrator G C Kabi

2. Framing of Issues Expert Witnesses Interim Awards Final Awards
Correction in Final Awards

3. What are issues
A list of points that are in dispute & require determination
Disputed law & fact

4. Types of issues Preliminary issues
Substantive issues related to disputes

5. Is the Arbitrator obliged to frame issues?
Should the Arbitrator frame issues?
Party autonomy
Arbitrator’s power
Fairness and Efficiency
Framing of Issues

6. Patel Engineering Co. Ltd. B T Patil & Sons MANU/MH/0351/2013
Sahyadri Earth Movers v L &T Finance Ltd
MANU/MH/1550/2011
Gammon India Ltd v Sankaranarayana
Construction Pvt. Ltd 2011(6)CTC 736
Framing of Issues

7. Gary Born: “Reduces the uncertainties in the trial process”
Gary Born: “In connection with establishing a sensible Arbitral procedure, the Tribunal and parties must define the contested issues of law and fact, and devise an efficient, rational, means of presenting and deciding them”
Gary Born: “Reduces the uncertainties in the trial process”
Framing of Issues

8. Why & when issues should be framed
To narrow down to relevant points
Once statements of case submitted and written submissions underway & arbitrator and the parties have clarity

9. How issues to be framed Draft issues by parties
Relevance of suggested issues
Finalisation of issues by AT in consultation of parties
Sequencing as per requirement
framing issues

10. Expert Witnesses Evidence by means of contemporaneous documents
Evidence by means of testimony of
witnesses of facts
Evidence by means of use of expert
witnesses-opinion
Expert witnesses

11. AT appointing experts Parties to present expert evidence
Harmonization of Civil & Common
Law procedure
Expert Witnesses

12. Article 26 UNCITRAL Model Law 1985/2006
AT appointed experts:
Article 26 UNCITRAL Model Law 1985/2006
S.26 A&C Act 1996
Institutional Rules
UNCITRAL Arbitration Rules 2010
IBA guidelines on taking evidence
Expert Witnesses

13. Expert Witnesses presented by the parties:
UNCITRAL Model Law 1985/2006
A&C Act 1996
IBA Rules
CIArb Protocol
UNCITRAL Arbitration Rules 2010
Expert Witnesses

14. Issues in party appointed experts
Independence/Credibility of experts
Conflicting opinions
Arbitrator- “the only objective player in the process”
Competence of AT to arrive at right conclusion

15. Redfern and Hunter
“One of the least satisfactory features of modern international arbitrations is the prevailing practice of presenting conflicting expert evidence of opinion on matters of great technical complexity. However well the advocates for the parties are able to test evidence of expert opinion presented by the other side through cross-examination, ‘how can the jury judge between two statements each founded on experience confessedly foreign in kind to their own?’”
Expert Witnesses

16. Methodology Cross examination Witnesses conferencing
Questioning by AT appointed expert
Expert witnesses

17. Expert witnesses: Certain points
Credibility of expert/specialized knowledge in the area relevant to dispute
Report giving ammunition to opposite counsel
Cross examiner preventing expert explaining his/her answer
Compound questions in one exchange
Preparation with retaining counsel
Helping AT & counsel understand the case
Are investigations well researched?

18. Contd. Findings of facts & methodology adopted?
Has the expert travelled beyond the scope of reference & expertise
Overuse of standardised language or use of absolute words: originality/exaggeration?
Impeccable expert witnesses- strategy: getting relevant admission v destroying credibility
PREPARATION by cross examiner
Abusive questioning?

19. Interim awards S. 2. (1) (c) A&C Act :
“arbitral award” includes an interim award
S. 31. (6) (c) A&C Act :
AT may at any time during the arbitral proceedings make an
interim arbitral award on any matter w.r.to which it may make
a final arbitral award
Interim award v interim order

20. When interim awards should be made
Issues that need to be decided early
Issues that are mostly admitted
Issues that can be decided separately- bifurcation: liability & quantum
Benefit of costs and time?
Architecting arbitration proceedings
Competence of AT & Counsels?
Interim Awards

21. Precautions
Preliminary plus/liability plus decisions! not contemplated by parties
Identifying the necessary factual matrix at early stage-the boundaries
Amendments by parties
Proceedings becoming longish
Clarity between award & order: legal consequences in the jurisdiction
Interim Awards

22. Final Awards Disposes all substantive issues
Final & binding subject to available challenges
Status of New York Convention awards for recognition & enforcement if challenged at seat/after annulment at the seat!
Final Award

23. Form & Content In writing Reasons Date & Place of arbitration
Majority signed- reason for omission of signature
Reasons
Date & Place of arbitration
Duly stamped
Signed copy shall be delivered to each party
Final Award

24. Correction in Final Award
Within 30 days of receipt of award:
a party with notice to other party
- computation error
- typographical error
any other error of similar nature
With agreement of parties :
interpretation
Correction in final award

25. AT within 30 days on its own -except interpretation
Party may request within 30 days:
Additional award (omitted)
S.31 shall apply
Correction in final award

26. Conclusion
Balancing party autonomy & efficiency of arbitration procedure – fairness the guiding principle
Harmonisation of procedures in international commercial arbitration by use of standard guidelines (soft laws)- retaining flexibility based on circumstances in each case

27. THANK YOU