| Authored by R & D Law Chambers LLP
Ravish Bhatt | Advocate, Bar Council of Gujarat (G/504/2008) | Dual-qualified lawyer (India and England & Wales) | ADIT, CIOT, London Published: 12 October 2026 | Last reviewed: 2 November 2026 |
| Scope and instruments. This page is written against sections 2(2), 19, 23, 34(2)(a)(iii) and 34(2A) of the Arbitration and Conciliation Act, 1996, as amended by the Arbitration and Conciliation (Amendment) Act, 2015 and the Arbitration and Conciliation (Amendment) Act, 2019. It states Indian law. Part I of the Act, which contains sections 19 and 23, applies where the place of arbitration is in India, subject to the proviso to section 2(2). |
| Freedom from the Code of Civil Procedure, 1908 is freedom from procedure, not from proof. Section 19 of the Arbitration and Conciliation Act, 1996 releases a tribunal from the Code and from the law of evidence. It does not release the tribunal from the pleadings. The statement of claim still fixes the outer limit of what may be awarded, and an award that crosses that limit is exposed under section 34 on two separate grounds. |
- Is an arbitral tribunal in India bound by the Code of Civil Procedure and the law of evidence?
| No. Section 19(1) of the Arbitration and Conciliation Act, 1996 provides that the arbitral tribunal is not bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872. Section 19(4) gives the tribunal power to determine the admissibility, relevance, materiality and weight of any evidence. |
Section 19 is a four part provision and each part matters. Sub-section (1) removes the Code and the law of evidence. Sub-section (2) leaves the parties free to agree the procedure. Sub-section (3) allows the tribunal, failing agreement, to conduct the proceedings in the manner it considers appropriate. Sub-section (4) confirms that this includes ruling on admissibility, relevance, materiality and weight.
One drafting point is worth noting because it is easy to misread. Section 19(1) as it stands names the Indian Evidence Act, 1872, which was repealed and replaced by the Bharatiya Sakshya Adhiniyam, 2023. Nothing turns on the cross-reference, because section 19(1) operates negatively: it tells the tribunal what does not bind it. Whichever evidence statute is read into the sub-section, the tribunal is not bound by it. The provision would only become difficult if it had conferred a power by reference rather than withdrawn a constraint.
Section 19 sits in Part I, which by section 2(2) applies where the place of arbitration is in India. The proviso inserted by the Arbitration and Conciliation (Amendment) Act, 2015 extends only sections 9, 27 and clause (a) of sub-section (1) and sub-section (3) of section 37 to an international commercial arbitration seated outside India, and then only subject to an agreement to the contrary. Section 19 is not among them. So in a foreign seated arbitration the tribunal’s procedural freedom comes from the chosen rules and the law of the seat, not from section 19, and an argument that the Code does not apply because section 19 says so is misdirected.
- Can a tribunal grant relief that was not claimed in the pleadings?
| No. Section 23(1) of the Act requires the claimant to state the facts supporting its claim, the points at issue and the relief or remedy sought. A tribunal that awards something outside those three things decides a case the other side was never asked to meet. |
Section 23(1) is the provision most often treated as a formality and it is nothing of the kind. It defines what a statement of claim is for. The claimant must state the facts supporting its claim, the points at issue, and the relief or remedy sought. The respondent states its defence in respect of those particulars. Everything the tribunal may later decide is framed by that exchange.
The reasoning behind the rule is set out at length in Bachhaj Nahar v Nilima Mandal, AIR 2009 SC 1103. At paragraph 8 the Court listed the rules that had been breached: evidence cannot be used to support a plea never put forward in the pleadings, and a court cannot decide a case that was not pleaded or grant relief that was not claimed and does not flow from the claim as pleaded. At paragraph 9 the Court explained why, which is the part that travels directly into arbitration: pleadings and issues ensure that each side knows the case it has to meet, prevent a party from shifting ground during the hearing, and allow each side to lead the evidence that actually matters.
At paragraph 10 the Court put the test in the form that is most useful at a hearing. The real question is whether the other side had an opportunity to meet the relief now being granted. At paragraph 12 the Court allowed a narrow exception: an unpleaded case may be considered only where the pleadings substantially cover it, the issues generally address it, and the parties knew of it and led evidence on it. That exception is for a defectively pleaded existing case, not for a new one, and at paragraph 16 the Court rejected outright the proposition that a tribunal of fact may grant whatever relief it considers fit.
None of this depends on the Code of Civil Procedure, 1908. Bachhaj Nahar reasons from the function of pleadings and from the opportunity to answer, which is why the principle survives section 19. A tribunal freed from the Code is not freed from the requirement that a party know the case against it.
- Can a party amend or supplement its claim once the arbitration is under way?
| Yes, unless the parties have agreed otherwise. Section 23(3) of the Act permits either party to amend or supplement its claim or defence during the arbitral proceedings. The tribunal may refuse the amendment if it considers it inappropriate having regard to the delay in making it. |
Section 23(3) is the answer to most complaints that a point was not pleaded. The route is to amend, not to argue the point unpleaded and hope the tribunal takes it. The statutory discretion to refuse is expressed by reference to a single factor, the delay in making the amendment, which tells a party two things. An amendment sought promptly is difficult to resist. An amendment sought after the evidence has closed, or first raised in final argument, invites refusal on the face of the sub-section.
The practical consequence is that a party which discovers a new claim late has a choice it must make deliberately. It can apply to amend, accept the costs and timetable consequences, and have the claim properly on the record. Or it can leave the claim unpleaded, in which case an award in its favour on that claim carries the vulnerability described in the next section. Where the parties have agreed otherwise, for example by adopting institutional rules that fix an earlier cut-off for new claims, that agreement governs, because section 23(3) opens with the words unless otherwise agreed by the parties.
- What happens to an award that goes beyond the pleadings or rests on material a party never saw?
| It is exposed on two separate grounds under section 34. One is that the party was unable to present its case, under section 34(2)(a)(iii). The other is patent illegality under section 34(2A), which covers a tribunal that decides matters outside what was referred to it and an award resting on no evidence. |
Ssangyong Engineering and Construction Co Ltd v National Highways Authority of India, Civil Appeal No. 4779 of 2019, decided by the Supreme Court, is the controlling treatment of both grounds. At paragraph 23 the Court confirmed that the principles of natural justice, read through sections 18 and 34(2)(a)(iii), remain a ground of challenge. At paragraph 36 it held that sections 18, 24(3) and 26 together require that each party have a full opportunity to present its case, and that material relied on by the tribunal be communicated to the parties. At paragraph 37 it held that where the tribunal takes material behind the parties’ backs, on which they had no chance to comment, the section 34(2)(a)(iii) ground is made out.
The patent illegality ground is narrower than it is often argued to be, and the limits are worth stating precisely. At paragraph 26 the Court held that the illegality must go to the root of the matter and that an erroneous application of law is not enough. At paragraph 27 it held that re-appreciation of evidence is not permitted. At paragraph 28 it held that a mere contravention of substantive Indian law is no longer a ground in itself. What does fall within section 34(2A) is set out at paragraphs 29 and 30: an arbitrator who wanders outside the contract and decides matters not allotted to him commits a jurisdictional error, and a perverse decision, including one based on no evidence or one that ignores vital evidence, is patent illegality on the face of the award. At paragraph 30 the Court also held that a finding based on documents taken behind the back of the parties qualifies as a decision based on no evidence.
The two grounds have different reaches and should not be pleaded as one. Section 34(2)(a)(iii) is available against an award in an international commercial arbitration seated in India. Section 34(2A), by its own terms, is not available against such an award. A party challenging an award made in an international commercial arbitration seated in India therefore has to put its case on the natural justice ground, and the way it pleads the defect matters more than it would in a purely domestic challenge.
- Where does a tribunal’s procedural freedom actually end, compared with a civil court’s?
| At the point where procedure stops and fairness begins. A tribunal may discard the Code’s forms, its modes of proof and its sequence of steps. It may not discard the requirement that a party know the case against it, see the material relied on, and have an opportunity to answer both. |
The distinction is drawn most reliably by asking what a given rule is for. A rule that exists to regulate the conduct of litigation, the form of a plaint, the manner of proving a document, the order of witnesses, is a rule section 19 removes. A rule that exists so that the other side can answer, the requirement to plead a case before relying on it, the requirement to put material to the party it will be used against, is not a procedural rule at all. It is the content of the opportunity to present a case, and the Act protects it independently through sections 18 and 34.
| Question | Civil court | Arbitral tribunal seated in India |
| Code of Civil Procedure, 1908 | Binding | Not binding: section 19(1) |
| Law of evidence | Binding | Not binding: section 19(1); admissibility and weight are for the tribunal under section 19(4) |
| Must relief be pleaded? | Yes | Yes: section 23(1), and the reasoning in Bachhaj Nahar |
| Amendment of the claim | Governed by the Code | Permitted by section 23(3) unless otherwise agreed; refusable for delay |
| Material relied on but not shown to a party | Not permitted | Not permitted: Ssangyong, paragraphs 36 and 37 |
| Consequence of deciding beyond the pleaded case | Appeal | Section 34(2)(a)(iii), and section 34(2A) where that ground is available |
| Who sets the procedure | The Code | The parties under section 19(2), failing which the tribunal under section 19(3) |
One further consequence follows for the party resisting a claim. Because section 19 does not lower the standard of proof, a claim advanced without pleading and without evidence does not become easier to establish merely because it is advanced in arbitration. The argument sometimes made, that an arbitration is a summary process in which the usual requirements are relaxed, has no statutory footing. Section 19 withdraws two named statutes. It does not withdraw the burden of proof, and nothing in the Act transfers that burden to the party resisting the claim.
How R & D Law Chambers Works on These Matters
R & D Law Chambers LLP is an Ahmedabad law firm. It advises on arbitration seated in India and abroad, including the conduct of the reference, statements of claim and defence, applications to amend under section 23(3), and challenges to and resistance of challenges under sections 34 and 37 of the Arbitration and Conciliation Act, 1996.
Work on a pleading question usually starts earlier than the hearing. The statement of claim and the statement of defence decide what can be argued at the end, and the cost of discovering that at final argument is that the point is no longer available. Where a claim has to be expanded, the question is whether to amend and when, because the statutory discretion to refuse turns on delay.
Related services:
- Arbitration in Ahmedabad and across India (domestic and international)
- International arbitration: cross-border disputes, enforcement and institutional references
- Enforcement of foreign arbitral awards in India
- Public policy and section 48(2)(b)
- Dispute resolution and court representation
| Disclaimer: this page is general information on Indian law as it stands on the date of last review. It is not legal advice and no lawyer and client relationship arises from reading it. The law stated is subject to change, and the application of any proposition to a particular agreement or dispute depends on its own facts and documents. |