In short. Getting ready for an arbitration hearing, as a business owner, is really three jobs. Put every document into one clean bundle. Pick a witness who actually handled the deal. Then make sure that person can sit through cross-examination on those papers without wobbling. Most of this happens four to eight weeks before the evidence hearing, not the night before. The sittings themselves are spread over a few months. This week, reread your own pleadings and list every document the other side is likely to put to you.
Is this your situation?
- The tribunal has just fixed your cross-examination dates, and the email from your lawyer is sitting unread because you don't know where to start.
- You're the director, or the proprietor, and everyone assumes you'll be the one in the witness chair.
- You've never given evidence in your life. The idea of a lawyer firing questions at you for two days is keeping you up.
- Half the deal is in email, a quarter is on WhatsApp, the ledger's in Tally, and the original purchase order is in a box somewhere in the godown.
- The hearing is on video, and last time you joined a Zoom call your internet dropped twice.
- The manager who negotiated the whole contract resigned last year and now works for a competitor.
- Your lawyer says the next sitting is only arguments. You're wondering whether it's worth closing the factory for a day to go.
Arbitration hearing preparation: what does it actually involve?
A lot more than showing up. The tribunal decides the case on the documents and the oral evidence in front of it, and by the time evidence starts, the pleadings are closed. You can't add a new story now. What you can still control is how tidy your documents are, who speaks for the company, and how that person copes with the other side's lawyer.
We'd put it as three pieces of work. One indexed, paginated bundle that everyone works from, the arbitrator included. A witness who knows the transaction first-hand and whose affidavit tells it plainly, fact by fact, document by document. And proper preparation for cross-examination. That's where most arbitrations turn on the facts.
None of this is about rehearsing answers. Scripted witnesses crack easily. The aim is a witness who knows the papers so well that no question about them comes as a surprise, and who understands the process well enough not to be thrown by it.
Which provisions of the Arbitration Act govern a hearing?
Section 18, Arbitration and Conciliation Act, 1996
Both sides must be treated equally, and each must get a full chance to put its case. If a party wasn't able to present its case, it can attack the award on that ground under Section 34(2)(a)(iii). Our post on challenging an award under Section 34 goes into it.
Section 19
The tribunal isn't bound by the Code of Civil Procedure, 1908, or by the old Indian Evidence Act (now replaced by the Bharatiya Sakshya Adhiniyam, 2023). The parties can agree on procedure. If they don't, the tribunal sets it, and that includes deciding whether evidence is admissible, relevant and material, and how much weight it gets. In practice? Most Indian tribunals still run things the civil-court way, with pleadings, affidavits and cross-examination.
Section 22
The parties can choose the language of the proceedings. If they don't, the tribunal will. Documents in some other language may need translations filed with them.
Section 24
It's for the tribunal to decide whether there'll be oral hearings. But if a party asks for one at an appropriate stage, the tribunal has to hold it, unless the parties had agreed to go without. Since 2015, tribunals must, as far as they can, hear evidence and arguments day to day, refuse adjournments where there's no sufficient cause, and they can impose costs, exemplary costs included, on a party that asks for time without a reason. Every party gets advance notice of every hearing.
Section 25
Skip a hearing, or fail to produce documents, without sufficient cause, and the tribunal can carry on and make an award on whatever evidence it has.
Sections 26 and 27
Section 26 allows the tribunal to appoint an expert of its own, and the parties can question that expert at a hearing. Under Section 27, the tribunal, or a party with the tribunal's approval, can ask the court for help in taking evidence. That includes a summons to a witness who won't turn up on his own.
What happens at an arbitration hearing, from first sitting to final arguments?
The first sitting is mostly housekeeping. The arbitrator records who's appearing, makes disclosures about independence, settles fees and the timetable, and often passes a first procedural order on pleadings, documents and the evidence schedule. Go to this one yourself. The dates fixed that day will bind your company for the next year or so. For the whole sequence from notice to award, see our note on how arbitration works in India.
Then the pleadings. Statement of claim, statement of defence (with any counterclaim), reply, rejoinder. Section 23(4) expects these to be done within six months of the arbitrator getting notice of appointment. After that, each side admits or denies the other's documents and the tribunal frames issues.
Evidence comes next. Each witness files an affidavit of evidence, which stands in for examination-in-chief, and then faces cross-examination by the other side's lawyer. His own lawyer may re-examine him briefly. If you only give your personal time to one stage of the case, give it to this one.
Last, the lawyers argue, usually orally and then in written submissions. The witness is finished by then. Still, the owner should sit in at least for the opening of final arguments, because the arbitrator sometimes asks something that needs instructions there and then. And not every arbitration has oral evidence. In a fast track arbitration under Section 29B, the case is normally decided on the papers.
How long each hearing stage takes, and what it costs
| Stage | Typical time, as a range | Costs to budget for (no lawyer fees shown) |
|---|---|---|
| First procedural sitting | Usually a few weeks after the arbitrator is appointed | The arbitrator's sitting fee in an ad hoc case; filing and admin fees if an institution is running it |
| Pleadings, admitting or denying documents, framing issues | Up to six months under Section 23(4), and it does get extended | Photocopies, paginated sets for the tribunal and the other side, translations |
| Affidavits of evidence | Four to eight weeks for each side | Notary charges and certificates for electronic records |
| Cross-examination of witnesses | One to four sittings for each main witness; more in construction or accounts-heavy fights | Sitting fees, venue hire in ad hoc matters, stenographer or transcription charges |
| Expert evidence, if there is any | A few weeks for reports, then a sitting or two for questions | The expert's own fee, fixed with the expert in writing |
| Final arguments and written submissions | One to three months | More sitting fees |
| Award | Within twelve months of pleadings being complete under Section 29A; six more months by consent, after that only the court can extend | Whatever's left of the arbitrator's fee; institutional fees as per the schedule |
Who should be your witness in arbitration?
Whoever handled the deal. That isn't always the person who owns the company. A witness can speak with confidence only about what he saw, did or wrote down himself. If your sales manager negotiated the purchase order, chased the payments and did all the WhatsApp back-and-forth, he's your natural witness. A managing director who signed the contract and left the daily work to others will struggle the moment he's asked about one particular email sent on one particular Tuesday.
Plenty of disputes need two witnesses. One covers the commercial side, meaning the order, the deliveries, the complaints and the letters. The other, usually from accounts, covers the ledger, invoices, part payments and the interest working. Splitting it like this keeps each affidavit short and each cross-examination narrow.
What if the person who handled it has left? You've got options. Ask him to depose anyway, which works if he left on decent terms. Use a current employee who can prove the company's records, accepting he can't speak to conversations he never heard. Or, if the ex-employee refuses and you really can't do without him, ask the tribunal to approve an application to the court under Section 27 for a summons. Decide this early. It's not a call to make the week before the hearing.
Whoever deposes for a company or a firm needs written authority. For a company, that's a board resolution. For a partnership, an authority letter signed by the partners. Opposing counsel often asks for it in the first two minutes, and a witness who can't produce it starts on the back foot.
How is the affidavit of evidence prepared?
Your lawyer drafts it. But it has to be your account, in your words as far as possible. It sets out the facts you know in numbered paragraphs and points to each supporting document by its exhibit mark. It doesn't argue law, and it shouldn't copy the pleadings line for line. An affidavit that reads like a legal brief gets less weight from the tribunal, and the other side will cheerfully ask you who wrote it.
Read every line before signing. Every single one. If a paragraph says you visited the site on 14 March 2024, check your diary and your travel bills. If it says the customer never complained about quality, search your inbox for the word defect. One wrong date is a gift to the cross-examiner. He'll use it to suggest the rest of the affidavit is just as shaky.
Hindi documents, or chats in Hinglish, should be translated where the tribunal or the other side can't follow them, and someone who knows your trade's jargon should check the translation. The exhibit marks in the affidavit must match the bundle exactly. It sounds fussy. It's the difference between a smooth hearing and a morning lost to page hunting.
How to prepare for the evidence hearing, week by week
A plan that works for someone who's running a business and can't give the case the whole day.
Eight weeks out: go back to the pleadings
Read your claim or defence, the other side's pleading and every reply. Note down each fact you have to prove and each allegation made against you. Everything else hangs off this list.
Seven weeks out: put the documents in date order
Lay out every relevant paper in sequence. Contract, purchase orders, invoices, challans, emails, chats, minutes, ledger extracts, notices. Give each a page number in the common bundle. Wherever the chronology has a gap, that's where cross-examination will go.
Six weeks out: settle the affidavit
Sit with your lawyer and go through the draft line by line, fixing dates, names and figures. Don't sign until every sentence is something you can explain without notes.
Four weeks out: study the other side's papers
Read their bundle as closely as your own. Mark every document they might put to you, and pay special attention to your own internal emails that have ended up in their file. When Advocate B.K. Singh prepares a client for cross-examination, he spends more time on the opponent's documents than the client's. Those are the pages the witness has usually never properly read.
Two weeks out: a practice session
Spend an hour with your lawyer on practice questions about the documents. You're getting used to the format, the short questions, the documents pushed across, the pressure to say yes or no. You aren't memorising answers.
One week out: logistics
Confirm the venue or the video link, the time, which version of the bundle is final, the originals you need to carry and your authority letter. For an online hearing, test the camera, mic, lighting and a backup internet connection.
The day before: rest
Read your affidavit once, slowly. Glance at the chronology. Then stop. A tired witness makes more mistakes than an underprepared one.
What happens in cross-examination in arbitration, and how should you answer?
It's quieter than a courtroom, but just as searching. The other side's lawyer asks short questions, puts documents to you and tries to get you to agree with statements that help his client. The arbitrator may chip in with questions too. There's no crowd, nobody shouts. But what you say goes on the record, and that record is what the award gets written from.
Hear the whole question before you open your mouth. Answer what's asked and nothing more. If yes or no will do, say yes or no, and add a short explanation only if the bare answer would mislead. Don't know? Say so. Can't remember? Say that. When a document is put to you, ask to see it and read the relevant bit first, even if it takes a minute. Nobody minds the pause.
Don't argue with the lawyer. And don't try to win the whole case in every answer. A cross-examiner loves a witness who volunteers things, because extra words open up questions he hadn't even planned. Your own lawyer can tidy up in re-examination and will argue the case later.
While your cross-examination is still going on, don't discuss your evidence with your lawyer or colleagues during breaks. That's a settled convention in Indian practice. Tribunals take a dim view of a witness who comes back from lunch with a fresh version of events.
Habits that hurt witnesses in cross-examination
- Guessing dates and amounts. Not sure? Say you'd need to check the document. A confident wrong answer does far more damage than an honest "I don't recall".
- Defending every document. So you wrote a badly worded email. Accept it says what it says, give the context in a line, and move on. Denying the obvious costs you belief on everything else.
- Answering the question you expected. It happens all the time, the witness has an answer ready and gives it, though the question was something else. Pause. Listen.
- Getting angry. Some lawyers needle you on purpose. Irritation looks bad on a transcript, and it invites more of the same.
- Blaming the staff. "Some employee must have sent that without asking me" makes the tribunal wonder how well you run your business, and how much your evidence is worth.
- Trusting memory over the books. If the ledger shows the payment came on 12 July, don't insist it was early June because that's how you remember it.
- Contacting the arbitrator yourself. Never call, email or message the arbitrator about the case. Everything goes through the lawyers and onto the record.
How do you prove emails, WhatsApp chats and Tally ledgers at the hearing?
Section 19 relaxes the strict rules of evidence, yes. The other side can still say a chat or an email is fake, though, and the tribunal will want to be satisfied. Most tribunals expect electronic records to come with a certificate under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023. That's the provision that took over from the old Section 65B certificate from 1 July 2024. File it along with the affidavit, signed by whoever's in charge of the phone, computer or system.
Hold on to the devices. If the messages that matter are on a phone, don't change or reset that phone until the award is final. Export the full WhatsApp chat rather than sending three screenshots, because three screenshots invite the obvious question about what the fourth message said. With Tally or any other accounts software, a ledger printout signed by your accountant along with a certificate usually does the job. Keep the backup file anyway.
The same rules for court suits are set out on our commercial court site, in its guide on proving emails and WhatsApp chats before a commercial court. They carry over to arbitration, with a bit more give.
What to bring and keep ready for the hearing
If you're the witness
- Your signed affidavit of evidence, with every exhibit
- The board resolution or authority letter that lets you depose
- Some photo ID
- Originals of the papers that matter most, like the signed contract, purchase orders, delivery challans and any signed acknowledgment
- The phone or laptop that holds the electronic records, in case the tribunal wants to look
For your lawyer and the tribunal
- The common bundle, indexed and paginated, in however many sets were agreed
- The other side's documents, with your notes kept on a separate copy (never in the witness's set)
- Section 63 certificates under the Bharatiya Sakshya Adhiniyam, 2023 for electronic records
- Translations of anything not in the language of the proceedings
- The procedural orders and the timetable
If the hearing is online
- A quiet room, with nobody else in it unless the tribunal allows
- A laptop with a camera and headphones, and a second device in case it dies
- A wired connection, or at least a backup hotspot
- The hearing link, plus the tribunal secretary's phone number
- A clean copy of the bundle with no markings, on paper or on screen as directed
Should the owner attend hearings where only the lawyers argue?
The important ones, yes. The first sitting, any interim application hearing, the evidence days and the start of final arguments are all days when things get decided, and your lawyer may need instructions on the spot. Settlement feelers sometimes come up outside the hearing room on those days, too. Only someone with authority can answer them.
Routine sittings for directions, or to finish a document exchange, can usually be left to your lawyer with a short update to you afterwards. What doesn't work is vanishing for months and then trying to change the whole strategy a week before arguments.
Worried about the arbitrator's independence? Tell your lawyer straight away, not at the hearing. The window for a challenge is short, and our post on objecting to an arbitrator who isn't independent explains it. Raised late, after a bad day in the witness chair, the objection looks tactical. It usually fails.
What changes when the hearing is online?
Same rules, different risks. Tribunals usually want the witness alone in the room, face and hands visible on camera, and may ask for a slow turn of the camera around the room at the start. Documents are shown by screen share or from an electronic bundle. Any hint of someone prompting from off-camera can wreck your evidence.
Practical failures do more damage than people expect. When the line drops in the middle of an awkward question, it looks like dodging, even when it's just your broadband. Use a wired connection if you can. Keep a mobile hotspot ready, charge everything, and log in fifteen minutes early. The procedure is in our post on how online arbitration works in India. For institutional matters, the commercial court site has a guide on how hearings run at the Delhi International Arbitration Centre.
Do you need an expert witness?
Sometimes you do. Fights over construction delay, the quality of a machine, the value of shares or a lost-profit figure often come down to technical opinion the owner simply can't give. A chartered accountant who can walk the tribunal through a loss-of-profit working, or an engineer who can show the delay came from late drawings, can carry a point your own evidence won't.
But the expert owes his duty to the tribunal, not to whoever pays him. Sound like your company's advocate and he'll be treated like one. Pick someone with real experience in that particular trade. Give him all the documents, the awkward ones included, and let him reach his own view. Section 26 also lets the tribunal appoint its own expert, whom the parties can then question at a hearing.
A made-up example: a Narela pipe maker's owner in the witness chair
This one is invented, to show how it plays out. The owner of a PVC pipe unit in the Narela industrial area claims Rs 64 lakh from a plumbing distributor in Faridabad for pipes supplied over eighteen months. The distributor says the pipes were defective and it owes nothing. The arbitrator, sitting in New Delhi, sets aside two days to cross-examine the owner, who did most of the selling himself.
Day one. The distributor's lawyer shows him a WhatsApp message in Hinglish where he'd written that he would look into the cracking problem in the March batch. His gut says deny it. But he'd spent weeks on the other side's documents, so instead he reads the full exported chat from the bundle. He points out that the next three messages record 400 lengths of pipe being replaced within a week. And he confirms the distributor kept ordering for eleven more months without a word of complaint.
Asked directly, he accepts the March batch had some defects. He says he doesn't remember how many. The lawyer moves on. At final arguments, his own counsel leans on the replacement and the eleven months of orders. The distributor has an admission about one bad batch and nothing more. Had he denied it, he'd have handed over a credibility point that could have coloured the entire case.
What do business owners most often get wrong before an arbitration hearing?
Getting involved too late. That's the big one. The owner leaves everything to the lawyer through pleadings, then sees the affidavit for the first time two days before he's due to depose. Every mismatch between the affidavit, the pleading and the documents then comes out in cross-examination instead of across a table in the office.
The second is picking the witness by seniority. Directors often insist on deposing because it feels like their fight. When a director wants to be the only witness, Advocate B.K. Singh asks him to explain three specific documents from the bundle without help. If he can't, the person who can should be the witness. The director then deposes, if at all, only about decisions he took himself.
Third, treating adjournments as free. They aren't. Since 2015 tribunals can put costs on a party seeking time without sufficient cause, and under Section 31A costs generally follow the event. Ask for time at every sitting and you'll also lose the tribunal's patience, which is harder to get back. The money side is in our post on what arbitration costs in India, and the time side in how long arbitration takes under Section 29A.
What to do this week if your hearing is coming up
Start with the date. Find out exactly when the evidence hearing is and count back using the week-by-week plan above. Read both sides' pleadings tonight. Then ask your lawyer for the latest bundle and check that every document you rely on is in it, with the right page number and, for anything electronic, a certificate.
Settle who your witnesses are and get their authority letters signed. If someone you need has left, call him now. And block the hearing dates in your own diary, with a free day before each one.
If you'd like your affidavit, documents and witness plan looked over before the hearing, or want to know how tribunals are currently running hearings, you can send your papers to Advocate B.K. Singh's team through the contact page.
Frequently asked questions
Can I bring my lawyer into the arbitration hearing?
Yes. In Indian arbitrations the parties are nearly always represented, and the lawyer handles the examination and the arguments. As a witness, you speak only when you're answering questions.
Is an arbitration hearing open to the public?
No. Hearings are private. Section 42A of the Act requires the arbitrator, the institution and the parties to keep the proceedings confidential. The one exception is the award, where disclosing it is needed to implement or enforce it.
Can the arbitrator ask me questions directly?
Yes, and they often do, usually once the lawyers are finished, to clear up facts. Answer the same way you answer the lawyers. Short, accurate, and only what's asked.
What if I fall ill on the date of my cross-examination?
Tell your lawyer at once and send a medical certificate. A short adjournment for genuine illness is usually granted. Keep asking, though, and you may face costs under Section 24.
Can I refer to notes while giving evidence?
Generally not, unless the tribunal allows it. You can ask to look at documents in the bundle before you answer. That's usually all you need.
Will there be a transcript of my evidence?
Usually, yes. Either the tribunal dictates a record of the evidence or a stenographer types a transcript, depending on the arbitrator's practice and what the parties agreed. Get a copy from your lawyer after each sitting and check it for mistakes.
Can the other side call my former employee as a witness?
Yes. Either side can call anyone with relevant knowledge. If that person won't come voluntarily, the tribunal can approve an application to the court under Section 27 for a summons.
Can a case settle in the middle of the hearings?
It can, at any stage. The parties then ask the tribunal to record the settlement as a consent award under Section 30, and it's enforceable like any other award.
Advocate B.K. Singh
Founder of B.K. Singh & Associates. MCA, LL.B., LL.M. More than twenty years in practice before the Supreme Court, the Delhi High Court, district and commercial courts in Delhi NCR, and tribunals.
This guide explains the law in general terms and is not legal advice. For advice on your own papers, contact the team.