[This article has been authored by Varda Saxena, a third year law student at JGLS, Sonipat.]
Keywords: Cross Examination, Arbitration, Section 27, Evidence, Natural Justice
The examination of witnesses has been a common practice in arbitration in India. While Section 19 of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”) dissociates itself from statutes like the Civil Procedure Code (“CPC”) and the Indian Evidence Act, it has been pronounced that when the procedure in the Arbitration Act seems lacking, the principles of CPC will continue to apply. The Indian arbitration regime has followed the common law methodology by allowing cross examination of witnesses to reduce the impact of the witness’s testimony on the case at hand.[i] The usage of this practice has resulted in the evolution of the right to cross-examine and has created precedent regarding the same. There are times when the other party does not summon a relevant witness, which the defendant wishes to cross examine. In this case, the party wishing to cross examine, can request the arbitrator or file an application under Section 27 of the Arbitration Act to take the court’s assistance and summon a witness who was not summoned earlier.
This article establishes that despite the absence of an affirmative provision allowing parties to summon witnesses and cross examining them instead of conducting examination-in-chief, the author argues that a party has the right to cross-examine a person not summoned as a witness by the other party for corroborating the veracity of the evidentiary matrix, due to the principles of natural justice. The analysis undertakes to establish that for the fulfilment of the right to cross-examine a witness, even people who had not been summoned as witnesses at the adequate stage can be summoned later for cross-examination.
Right to Cross Examine a Witness
There has been precedent that summoning key witnesses to corroborate evidence and establish relevant facts has been a common practice. In the case of Stemcor (S.E.A.) Pte Limited and Anr. v Mideast Integrated Steels Limited, a relevant witness of the petitioner disagreed to visit India due to fear of prosecution. The Bombay High Court adjudicated on a Section 27 application and stated that the testimony of the said witness was crucial for the arbitral proceedings. The Court appointed an arbitrator as the Court Commissioner and directed him and the team of lawyers to travel to Singapore and record the testimony of the witness. The authenticity of taking evidence through the Court Commissioner was emphasised as such a person was the agent of the court. The precedent established in this case reiterates the importance of key witnesses and is a pro-arbitration step which further upholds the right to cross examination.
There have been multiple cases where the courts have upheld the right to cross-examination. In Bareilly Electricity Supply Co. vs The Workmen & Ors, the Court, on being presented with documentary evidence opined that an essential documentary evidence, such as the company quotations presented in this case, cannot be relied upon unless the same is corroborated by an employer who was a witness to it, through evidence on an affidavit. Otherwise, an opportunity should be given to workmen to contest the validity of the evidence through cross-examination. This highlights how courts are cognizant of the importance of cross-examination and its ability to check the veracity of evidence presented by a party.
Due to this cognizance, courts were also instrumental in upholding the right to cross examination in Rajesh V. Choudhary vs Kshitij R. Torka and Anr, where it was stated that, “if a Tribunal unreasonably fetters a party from cross-examining a witness or fixes an un-reasonable time limit, it would cause irreparable injury and hardship.” The hardships and irreparable injury could be the genesis of the lack of sufficient opportunity allotted to the adverse party in proving their case. In cases where an oral hearing is allowed, such delimiting could have severe repercussions because even the tribunal recognises that the same could not be adjudicated on documentary evidence alone.
Further, in Bi-Water Penstocks Ltd. vs Municipal Corporation Of Greater Bombay, the Respondents were denied the right to cross examine the author of the documentary evidence presented by the Petitioner, as the person was not summoned as a witness. Examining the author of the document is one of the effective cross examination strategies. The cross examination could include asking the person about transfer of the document from himself to another, context of the document and whether there was any response before confronting the witness about the inconsistencies. These factors can be incorporated while framing scripts to effectively point out inconsistencies in the testimonies of witnesses, enabling the effectiveness of the practice.
The Court highlighted the breach of the principles of natural justice in the Bi-Water Penstocks Ltd. case, by elucidating the illegality in admission of such documents. The fair chance of cross-checking the veracity of evidence presented has emerged as a principal of natural justice. Courts have even opined that deciding the dispute solely on the written submissions and not taking oral evidence or giving a formal hearing, defies the model of natural justice. Such a model where oral evidence is mandated to not be taken has been quoted as artificial justice unless parties voluntarily agree to choose. When a case invokes these rules, overriding the contractual agreement, it fosters an illusionary idea of justice.[ii] Hence, to avoid such an illusion, the importance of examining all relevant witnesses has been highlighted by multiple courts. There may be instances when an important witness has not been summoned, but cross-examination of such a witness could be vital for the party. The following section explores the judicial approach towards summoning a new witnesses and procedure involved with the same.
Summoning a Witness for Cross Examination
The right to cross- examination cannot be exercised without the person being summoned for testifying. Therefore, for valid enforcement of the right, the courts have established mechanisms for summoning unwilling witnesses or forcing parties to examine a key witness by summoning them, if the arbitrator deems fit. The need to present oral evidence has been highlighted in many judgments. However, in cases where the witness has not been summoned, to support the claim, just as in the Bi-Water Penstocks Ltd. case, the party is allowed to seek assistance from the court under Section 27 of the Arbitration Act. In Montana Developers Private Limited v. Aditya Developers and Others, the Bombay High Court stated that even documentary evidence can be procured, alongside oral evidence, through the assistance of Civil Courts under the CPC. However, if a person defies the order of summons or is unwilling to examine the evidence presented, they could be liable for disadvantages, penalties and punishments by order of the Court on the representation of the arbitral tribunal as per Section 27(5) of the Arbitration Act.
When a document is presented in a Tribunal, the questions to be addressed are whether the document is genuine, whether the contents of the document are relevant to the case and whether the statements contained therein are true. Even in international arbitration, the relevance of the witnesses’ testimony is checked for the possibility of avoiding dangerous situations. The tribunals use the ‘chess clock method’ to determine the witnesses which are critical for the dispute. The method is an advanced time-management strategy which enables resolution of the dispute in a particular amount of time decided by the parties. The method enables the tribunal to sort through the evidence and even question witnesses while analysing the criticality of the same. Considering the method is applicable through an agreement between the parties, it could become effective in even domestic arbitrations, acting as both a time management technique and a tool to present the critical aspects of the case.
The Supreme Court in Union Of India vs Sardar Bahadur stated that the evidence presented cannot be relied upon unless the contested facts are relayed by people who are competent to speak about them and the witnesses are cross-examined too. When a party refuses to summon a person as a witness, but the arbitrators think that the person’s testimony could be relevant for the case, they have the powers to summon the person as witnesses, even if they weren’t summoned at an earlier stage. This approach can be construed as one which bolsters the right to cross examination. There has also been precedent[iii], wherethe UK Commercial Court stated that when arbitrators exercise this power of summoning witnesses, which weren’t originally summoned, it is well within the principles of natural justice. Hence, if those summons are not effectuated, the arbitrators are entitled to draw adverse inferences from the materials available and the refusal to present such witnesses. However, such a summon should not have merely speculative relevance to the case and should not be for the sake of causing embarrassment. So, the courts have provided a mechanism to summon witnesses and enforce the right to cross-examination for reaching an outcome through a rigorous and valid process, giving each party a fair chance to present its case.
The article locates the examination of witnesses in an arbitral proceeding, who had not been summoned originally. The examination of such witnesses has been mandated in various precedents while upholding the right to cross examination. It is necessary to summon an unwilling but relevant witness to enforce the right to cross examination. However, one could also contend that not summoning such a witness by exercising the arbitrator’s discretion possibly infringes on such a right. The recognition of this right has been highlighted while reiterating the importance of oral testimony for corroboration of documentary evidence. Hence, the judicial discourse provides a remedy if a party has not summoned a witness which could be relevant for a case at hand. Further, the oral testimony could also have the potential to change the outcome of the case.[iv] Therefore, the essence of the right to cross-examine should be realised as the reliance on lack of cross-examination could be an essential defect in hearsay testimonies.
[i] Kaj Hobér, ‘Chapter 3: Cross-Examination in International Arbitration’ in Axel Calissendorff and Patrik Schöldstrom (eds), Stockholm Arbitration Yearbook 2019, 43 (Kluwer Law International 2019). [ii] D.L. Miller and Co. Ltd. v. Daluram Goganmull, AIR 1956 Cal 361. [iii] Brandeis (Brokers) Ltd v. Black and Ors.  Arb.LR 15. [iv] Hobér, ‘Chapter 3: Cross-Examination in International Arbitration’ (n i) 46-47.