International Commercial Arbitration

International Commercial Arbitration is an alternative method of resolving disputes between private parties arising out of commercial transactions conducted across national boundaries that allows the parties to avoid litigation in national courts.

As per section 2(1)(f) of the arbitration and conciliation act, 1996, international commercial arbitration means an arbitration relating to disputes arising out of legal relationship, whether contractual or not, considered as commercial under the law in force in India and where at least one of the parties is the following:-

• An individual who is a national of, or habitually resident in any country other than India.
• A body corporate which is incorporated in any country other than India.
• A company or an association or a body of individuals whose central management and control is exercised in any country other than India.
• The government of a foreign country.

Alternate Dispute Resolution

It is a fine substitute for the more common judicial process. It includes methods like negotiation, conciliation, mediation and arbitration. All these methods have some common features, which makes ADR a very viable and preferable mode in dealing with disputes. Most commonly, these have a shorter time duration as the court route. The cost is considerably less than the court and legal fees. Privacy, neutrality of the proceedings and of the decision and possibilities of customizing the procedures are some more attractive features.

The rising population of ADR can be explained by increasing case loads of the traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individuals who will decide their disputes.

The salient features of ADR are:-

• Negotiation - Participation is voluntary and there is no third party who facilitates the resolution process or impose a resolution.
• Mediation - There is a third party, a mediator, who facilitates the resolution process, but does not impose the resolution on the parties.
• Arbitration - Participation is typically voluntary, and there is a third party who, as a private judge, imposes a resolution.
• Conciliation - Each party has an attorney who facilitates the resolution process within specifically contracted terms.

Almost all disputes including commercial, civil, labor and family disputes, in respect of which the parties are entitled to conclude a settlement, can be settled by an ADR procedure. The techniques have been proven to work in the business environment.

Res Gestae

Section 6 embodies the rule of admission evidence relating to what is commonly known Res Gestae. Acts or declarations accompanying the transaction or the facts in issue are treated as part of the res gestae and admitted as evidence. The obvious ground for admission of such evidence is the spontaneity and immediary of the act or declaration in question.

E.g - A sues B for libel contained in a latter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself.

It is based on the belief that because certain statements are made naturally, spontaneously, and without deliberation during the course of an event, they carry a high degree of credibility and leave little room for misunderstanding or misinterpretation. The doctrine held that such statements are more trustworthy than other second hand statements and therefore should be admissible as evidence.

In Gentela Vijayvardhan Rao And Anr v. State of Andhra Pradesh, the appreciable interval between the act of carnage and magistrate's recording the statement was found inadmissible under res gestae.

Opinion of Experts

Section 45 of the Indian Evidence Act, 1872 makes the opinion of experts important on points of specialized areas like handwriting analysis, fingerprints, artistic impressions, scientific principles and foreign legal positions. Anyone possessing specialized knowledge in the above mentioned field would be deemed to be an expert.

As a general rule the opinion of a witness on a question whether of fact, or of law, is irrelevant. Witness has to state the fact which he has seen, heard or perceived, and noted the conclusion, form of observations. The functions of drawing inferences from facts is a judicial function and must be performed by the court. 

E.g - The question is, whether the death of A was caused by poison?

->  The opinion of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.

Expert evidence is opinion evidence and it can't take the place of substantative evidence. It is a rule of procedure that it must be corroborated either by clear direct evidence or by the circumstantial evidence.

It is not safe to rly upon this type of evidence without seeking independent and reliable corroboration [S. Gopal Reddy v. State of A.P AIR 1996 SC 2184 (Para 27)]

Principle of Estoppel

It is based on the principle that it would be most in equitable and unjust that if one person, by a representation made,  or by a conduct amounting to a representation, has induced another to act as he would not otherwise have done, the person who made representation should not be allowed to deny or repudiate the effect of his former statement to the loss and injury of the person who acted on it (Sorat Chandra v. Gopal Chunder).

It follows from the generally accepted rule that a person cannot approbate and reprobate  at the same time. This is specially the case when another has relied on the information or statement given by one and done something that he otherwise would not have done. This is to prevent undue hardship for others who depend on the statements previously made by the person.

Primary Evidence

It means the document itself produced for the inspection of the court (section 62). The rule that the best evidence must be given of which the nature of the case permits has often been regarded as expressing the great fundamental principles upon which the law of evidence depends. The general rule requiring primary evidence of producing documents is commonly said to be based on the best evidence principle and to be supported by the so called presumption that if inferior evidence is produced where better might be given, the later would tell against the withholder. 

Secondary Evidence

It is generally in the form of compared copies, certified copies or copies made by such mechanical processes as in themselves ensure accuracy. Section 63 defines the kind of secondary evidence permitted by the Act. According to this section, it means include:-

• Certified copies given under the provisions hereafter contained.
• Copies made from the original by mechanical processes which in themselves ensures the accuracy of the copy and copies companies compared with such copies.
• Copies made from or compared with the original.
• Counterparts of documents as against the parties who did not execute them.
• Oral accounts of the contents of a document given by some person who has himself seen it.

According to section 65 of the Act, where primary evidence can be provided, secondary evidence should not be used. It should only be given where the original document is not available because it has been lost or destroyed, or it is otherwise unavailable because it is under the control of some public authority's control.

Circumstantial Evidence

It is a kind of derived evidence, that can be gained from sources seen as secondary. For example, a copy of a document or a record in a public can be taken as evidence in the absence of the original documents. Another example could be that of the state of things in a particular room, where a crime has taken place. They can be considered when no eye-witness account is available. It is used only in the absence of primary evidence.

In State of Maharastra v. Dr. Praful B. Desai, the Supreme Court held that under Section 3 of the Indian Evidence Act besides Oral and Documentary Evidence, electronic record can also be admitted as the evidence. The court further stated that evidence ruled in criminal matters could be by way of electronic records, which would also include video conferencing.

Oral Evidence

Spoken testimony that witness gives  in a court, usually upon oath. Oral evidence is always direct. "Oral Evidence means statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry. But, if a witness is unable to speak he may give his evidence in any manner in which he can make it intelligible as by writing or by signs". (Section 119)

A relationship between section 50 and section 60 of the Indian Evidence Act has been established which says that for proving an evidence completely, two things shall be fulfilled at first, there shall be a presence of relevant facts and those facts have been presented directly by the person who has either seen them, heard them or etc. [Amar Singh v. Chhaju Singh]

Documentary Evidence

A 'document' means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used for the purpose of regarding that matters. Documents produced for the inspection of the court is called as the Documentary Evidence. Section 60 provides that the contents of a document must be proved either by Primary or Secondary Evidence.