In today’s world one of the way, which most people while entering into an agreement make sure is to add the clause of solving the dispute through the way of arbitration which is one of the aspect of alternative dispute resolution. Parties find it convenient, as according to this method of dispute resolution they can exert more influence over how their dispute is addressed than they would be able to, in court action due to its private nature. In contrast to judicial action, parties themselves can choose the best arbitrators for the cases. It follows principles of natural justice.
According to section 92 of the Indian Evidence Act, of 1822, oral evidence is not admissible in a court of law when there is documentary evidence of the fact in issue. This phrase implies that written evidence is more reliable than oral testimony in proving a claim, however since arbitration is exempted from this act, there has been much debate about what constitutes a valid form of agreement.
The party aggrieved by the award, in which they are of the point of view that the award rendered was given on the basis of components to which they did not agree or was against the agreement which they entered into, unless such agreement was not in violation of provision of this act, they can plea to set aside the award.[i]
There are several instances where the Supreme Court has brought to light the importance of the written agreement, it provided that there must be a pre-written agreement between the parties involved as to whether dispute if arises, will be solved by the way of arbitration and in absence of such agreement the court may refer it to arbitration only if parties involved give their written consent to the same either via joint memo or by joint application.[ii]
Delhi high court in a recent judgment opined that the documentary statement has greater evidentiary value than the oral statement, it further added that if any of its terms of the agreement are modified, the parties must first obtain approval from the other party involved in such agreement.[iii]
The main motive of alternative dispute resolution is to provide quick redressal to the parties involved as it saves the time and money of the parties, and this is one of the reasons as to why people nowadays prefer this method of solving their dispute. If tribunals will consider the oral evidence then the reliability of the evidence will be reduced, as there can be multiple witnesses and statements, and proving of same will consume a lot of time, that’s why more value is given to the written documents.
[i] Section 34(2) (v) of Arbitration and Conciliation act, 1996.
[ii] Afcons Infrastructure Ltd. & Anr. Vs Cherian Varkey Construction Co. (P) Ltd. & Ors. CIVIL APPEAL NO.6000 OF 2010.
[iii] M/S Prime Industries Ltd. vs Seil Ltd & Anr. on 21 May, 2010
Name – Vijayshree Naik
University – Amity University
Semester – 4th semester