English and Indian legal perspective on third-party disclosure in arbitration: it is time to assimilate third party into the family of arbitration

Abstract

Arbitration is recognized as a trustworthy and reliable way of rendering justice. But, there may be instances in which the cases are not decided on sufficiently required amount of evidence and this will tarnish the reputation of arbitration. This is the case when the evidence required in arbitration proceedings is in the possession of a non-party because in this case, if the party to the arbitration cannot narrate the documents with high specification, the English courts will not only refuse to lend its support for disclosure from the third party, but will also express its inability to fulfil the requests made by arbitral tribunal as well as other courts for such disclosure. The gravity of the situation becomes patent in light of the fact that in most of the cases, the party to arbitration is unable to define the documents in the possession of the third party with required particularity and can only describe them broadly with reference to some transaction or event. It becomes imperative to establish with clarity that the arbitrator has the power under English law to order the third party and to suggest guidelines for it to use while deciding the application for third-party disclosure orders. The situation is not much better in India. Despite the clarity in India's legal regime on the issue of third-party disclosure, the law needs improvements. Arbitration Act 1996 (UK), ss 2, 43 and 44 Indian Arbitration and Conciliation Act (1996) English Civil Procedure Rules (1998) English Evidence (Proceedings in Other Jurisdictions) Act (1975) Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (1970) Bharat Aluminium Co. v Kaiser Aluminium Technical Service , Inc, Supreme Court of India (2005) Tajik Aluminium Plant v Hydro Aluminium AS and Ors , England and Wales Court of Appeal (2005) BNP Paribas & Ors v Deloitte & Touche LLP , High Court of Justice of England and Wales (2003) Bhatia International v Bulk Trading BA , Supreme Court of India (2002)