Section 26 of the Arbitration and Conciliation Act, 1996: Expert Appointed by Arbitral Tribunal

Section 26 of the Arbitration and Conciliation Act, 1996 empowers an arbitral tribunal, unless the parties have agreed otherwise, to appoint one or more experts on specific technical or specialised issues. It also regulates access to information, participation of the expert at an oral hearing, questioning by the parties and examination of material supplied to the expert.

What is Section 26 of the Arbitration and Conciliation Act, 1996?

Section 26 deals with an expert appointed by the arbitral tribunal. The provision enables the tribunal to obtain independent expert assistance where a dispute involves an issue requiring technical, scientific, financial, engineering, accounting, valuation or other specialised knowledge.

The power is expressly subject to any agreement between the parties. Therefore, the parties may agree on a different procedure concerning tribunal-appointed experts.

In simple terms: Section 26 allows the arbitral tribunal to appoint an expert, obtain a report on specified issues and require relevant information or property to be made available for inspection. It also protects procedural fairness by allowing the parties, in appropriate circumstances, to question the expert and present their own expert witnesses.

Text of Section 26 - Expert Appointed by Arbitral Tribunal

26. Expert appointed by arbitral tribunal.

(1) Unless otherwise agreed by the parties, the arbitral tribunal may-

(a) appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal, and

(b) require a party to give the expert any relevant information or to produce, or to provide access to, any relevant documents, goods or other property for his inspection.

(2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert shall, after delivery of his written or oral report, participate in an oral hearing where the parties have the opportunity to put questions to him and to present expert witnesses in order to testify on the points at issue.

(3) Unless otherwise agreed by the parties, the expert shall, on the request of a party, make available to that party for examination all documents, goods or other property in the possession of the expert with which he was provided in order to prepare his report.

Official text: Arbitration and Conciliation Act, 1996 - India Code

Section 26(1): Power to Appoint One or More Experts

Under Section 26(1)(a), the arbitral tribunal may appoint one or more experts to report on specific issues that the tribunal has to determine. The expert does not replace the arbitral tribunal. The tribunal remains responsible for deciding the dispute, while the expert provides specialised assistance on the identified issues.

Section 26(1)(b) further permits the tribunal to require a party to provide relevant information to the expert or to produce, or provide access to, documents, goods or other property needed for inspection.

Section 26(2): Oral Hearing and Questioning of the Expert

After the expert has delivered a written or oral report, the expert may be required to participate in an oral hearing if a party requests it or if the tribunal considers such participation necessary, unless the parties have agreed otherwise.

At that hearing, the parties must have an opportunity to put questions to the tribunal-appointed expert. They may also present their own expert witnesses to testify on the points in issue. This mechanism supports transparency and gives the parties an opportunity to test the expert opinion relied upon in the arbitral proceedings.

Section 26(3): Right to Examine Material Given to the Expert

Section 26(3) provides that, unless otherwise agreed by the parties, a party may request access for examination to the documents, goods or other property that were given to the expert and remain in the expert's possession for preparation of the report.

This provision helps a party understand the factual material on which the expert's opinion was prepared and enables meaningful questioning or rebuttal of that opinion.

Key Features of Section 26

The tribunal may appoint one or more experts on specific issues.
The parties may agree to a different procedure.
The tribunal may require relevant information, documents, goods or property to be made available to the expert.
A party may request the expert's participation in an oral hearing after the report is delivered.
The parties may question the tribunal-appointed expert at the hearing.
The parties may present their own expert witnesses on the points at issue.
A party may request examination of the material supplied to the tribunal-appointed expert for preparing the report.

Relationship with Other Arbitration Provisions

Section 26 operates as part of the evidentiary and hearing framework of arbitral proceedings. Section 24 deals with hearings and written proceedings, while Section 27 provides for court assistance in taking evidence. Section 26 specifically addresses expert assistance obtained by the arbitral tribunal itself.

Practical Effect of a Tribunal-Appointed Expert

The expert's function is advisory and evidentiary. The expert reports on the specific issues referred by the tribunal, but the arbitral tribunal ultimately evaluates that material together with the other evidence and submissions in the proceedings.

Where the expert's opinion may materially affect the determination of the dispute, the opportunity under Section 26(2) to question the expert and present competing expert testimony can be important to procedural fairness.

Statutory text checked against the current India Code publication of the Arbitration and Conciliation Act, 1996.