Document Production and Adverse Inference in Arbitration in India

R & D Law Chambers LLP Practice is led by Ravish Bhatt  |  Advocate, Bar Council of Gujarat (G/504/2008)  |  Dual-qualified lawyer (India and England and Wales)  |  Solicitor of England and Wales (non-practising), SRA Registration No. 492 477  |  ADIT, Chartered Institute of Taxation, London Published: 28 October 2026  |  Last reviewed: 28 October 2026

 

Scope. This note addresses document production in India-seated arbitration under the Arbitration and Conciliation Act, 1996, read with the Bharatiya Sakshya Adhiniyam, 2023 and, where the parties adopt them, the IBA Rules on the Taking of Evidence in International Arbitration (2020). It states the general law and is not advice on any particular reference. The firm advises on Indian law.

 

An India-seated arbitration has no automatic discovery. A party obtains the other side’s documents only by asking, and the value of the request is not only the document. A precise request that goes unanswered allows the tribunal, in its discretion, to infer that the document would have been adverse to the party that holds it. The adverse inference is earned before the refusal, by a request the tribunal can see is relevant, material, and aimed at documents the other side alone holds.

 

1. Can a party be compelled to produce documents, and where does the tribunal get that power?

Yes. A tribunal may order a party to produce documents in its possession. The power is not in a discovery provision. It is read from sections 19(3) and 19(4) of the Arbitration and Conciliation Act, 1996, which let the tribunal decide its own procedure and rule on relevance and materiality, supported by section 27 for the court’s assistance.

 

The 1996 Act contains no discovery code. Section 19(1) states that the tribunal is not bound by the Code of Civil Procedure, 1908 or by the law of evidence. Section 19(2) lets the parties agree the procedure. Failing agreement, section 19(3) lets the tribunal conduct the proceedings as it considers appropriate, and section 19(4) gives it the power to determine the admissibility, relevance, materiality, and weight of any evidence. A direction to produce a document is an exercise of that procedural power, not the enforcement of a right a party can demand.

The Supreme Court held in SREI Infrastructure Finance Ltd v Tuff Drilling Pvt Ltd, (2018) 11 SCC 470, that freedom from the Code and the law of evidence does not stop a tribunal drawing on the principles underlying them. The tribunal is released from the rules, not from their logic. That release is also the starting point for production. The Bharatiya Sakshya Adhiniyam, 2023, which replaced the Indian Evidence Act, 1872 from 1 July 2024, defines Court in section 2(1)(a) to exclude arbitrators. So the tribunal orders production as tailored procedure and fairness, and the reach and manner of production are for the tribunal to shape, not a fixed entitlement either side carries in from court practice.

2. What must a document-production request contain to succeed?

Three things. That the documents are relevant to the case and material to its outcome. That they are in the other side’s possession, custody, or control and not the requesting party’s. And that they are identified, by document or by a narrow and specific category, not asked for at large. A request that reads as a search of the opponent’s files is refused.

 

There is no Indian statutory checklist, so tribunals work to the standard the IBA Rules on the Taking of Evidence (2020) set out, which most Indian references adopt by agreement or treat as guidance. Article 3.3 requires a request to describe each document, or a narrow and specific category reasonably believed to exist; to state how the documents are relevant to the case and material to its outcome; and to state that they are not in the requesting party’s possession, custody, or control, with the reason they are believed to be with the other side.

The instrument that carries this is the Redfern Schedule, a table in which each side enters its request, the other its objection, and the tribunal its ruling, row by row. The discipline is the point. A request precise enough to be granted is also precise enough that a refusal to comply can later be made to count, and a request that cannot meet relevance and possession is both refused now and useless later. Legitimate grounds to resist are the mirror image: that the documents are irrelevant or immaterial, that they are not in the resisting party’s control, that the request is a fishing exercise, or that the material is privileged or subject to a genuine confidentiality obligation.

A worked example shows how the pieces lock together. In a commodity-supply arbitration, a buyer may seek two sets of documents from the seller: the seller’s agreement with its co-venturers, to test whether the seller was authorised to act for them in the reference, and the invoices the seller raised on other buyers, to show that the same goods were in fact sold elsewhere at a lower price than the contract assumed. Each request names a document the seller alone holds and ties it to a pleaded issue. That is what makes it answerable, and, if it is not answered, what makes the silence tell.

3. If a party defies a production order, can the tribunal draw an adverse inference, and when will it refuse?

Yes, but not automatically. If a party, without satisfactory explanation, does not produce a document it was asked and ordered to produce, the tribunal may infer that the document would have been against it. The inference must be earned: the request must be relevant, the document in that party’s control, and the point already supported by some other evidence.

 

The principle is older than the arbitration statute. It sits in section 119 illustration (g) of the Bharatiya Sakshya Adhiniyam, 2023 (illustration (g) to section 114 of the former Indian Evidence Act, 1872): evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. The statute does not bind the tribunal, but the logic of best evidence does. The Supreme Court stated it in Gopal Krishnaji Ketkar v Mohamed Haji Latif, AIR 1968 SC 1413: a party in possession of the best evidence on a disputed point who withholds it invites an adverse inference, even where the burden of proof lay on the other side.

The limits were drawn in Union of India v Ibrahim Uddin, (2012) 8 SCC 148. The inference is discretionary, never mechanical. The tribunal weighs the pleadings, whether the withheld document is relevant at all and whether its absence would directly establish the other side’s case, and the conduct and diligence of both parties. Decisively, the Court held that the inference generally follows only where the party seeking it asked for production and the holder then failed to comply. That is why the request matters more than it appears to: it is the step that converts the opponent’s silence into something the tribunal can act on. It is also why a party that wants the inference must put the other side on notice and obtain an order first, rather than argue at the end that a document was never produced.

Under the IBA Rules the same result is reached through Article 9.6 of the 2020 Rules, which lets the tribunal infer that a document a party failed, without satisfactory explanation, to produce after a request or order would have been adverse to that party. Article 9.7 extends the inference to other evidence a party fails to make available. Fairness runs through both routes. A tribunal that draws the inference must first give the party a chance to explain the non-production, because an inference sprung without that opportunity, or a blanket refusal to let a party obtain plainly material documents, can later be challenged under section 34(2)(a)(iii) of the 1996 Act, that the party was otherwise unable to present its case, read with the equal-treatment duty in section 18. In the worked example, the seller’s failure to produce its invoices to other buyers, after a specific request and an order, is precisely what lets the buyer ask the tribunal to presume those invoices would have shown the lower price alleged.

4. How does document production in arbitration differ from court discovery and from the IBA Rules model?

Court litigation allows wider, court-driven discovery, and a commercial suit goes further still, with disclosure on affidavit at the pleading stage. Arbitration has neither by default. Nothing is disclosed unless asked for, and the tribunal grants a request only on relevance and possession. The IBA Rules are the narrow, request-based model that Indian arbitration has in practice adopted.

 

In an ordinary civil suit, Order XI of the Code of Civil Procedure, 1908 allows discovery by interrogatories, inspection, and production, driven through the court. For a commercial dispute of specified value, the Commercial Courts Act, 2015 substituted a stricter Order XI: each side must disclose on affidavit all documents in its power or control, whether or not they help its case, with consequences for what is left out. Arbitration starts from the opposite default. There is no disclosure obligation and no general discovery. A party produces the documents it relies on, and anything else must be specifically requested and justified. That default is not neutral: it is a choice the 1996 Act makes for speed, and it is why the narrow IBA model fits arbitration while the wide court model does not, and why a party that expects court-style discovery in an arbitration is left without the documents it assumed it would get. The table sets the four regimes side by side.

Feature	Civil suit: Order XI, CPC	Commercial suit: Order XI, as substituted by the Commercial Courts Act, 2015	India-seated arbitration: section 19	IBA Rules, 2020
Default disclosure	Discovery available on application to the court	Mandatory disclosure on affidavit at the pleading stage, documents for and against	None; each side files only what it relies on	None; production only on a request to produce
Who drives it	The court, on a party’s application	The court, with disclosure built into the pleadings	The tribunal, on a party’s request	The tribunal, on a request to produce
Test for production	Relevance; necessity for fair disposal	Documents in the party’s power or control, disclosed as an obligation	Relevance and materiality; possession; tribunal’s discretion (s.19(3),(4))	Relevance to the case and materiality to the outcome; possession, custody, or control (Art 3.3)
Consequence of default	Striking out; adverse inference	Document generally not relied on later without leave; costs	Adverse inference (s.119 ill.(g) principle); court aid under s.27	Adverse inference (Arts 9.6, 9.7)

 

5. When do you need the court under section 27, and what about documents held by a third party?

A tribunal’s orders bind only the parties before it. It cannot compel a stranger to the arbitration to produce anything. For that, a party applies, with the tribunal’s approval, under section 27 of the 1996 Act for the court’s assistance in taking evidence, including documents held by a non-party.

 

The tribunal’s authority comes from the arbitration agreement, so it reaches only those who signed it. A party can be ordered to produce, and faces an adverse inference if it refuses, but a bank, auditor, group company, or other stranger to the arbitration agreement that holds a relevant document is beyond the tribunal’s reach. Section 27 answers this. The tribunal, or a party with the tribunal’s approval, may apply to the court for assistance in taking evidence, and the court may require a person to produce documents or to attend, exercising the same powers it has in a suit, with consequences for default that a tribunal cannot impose on its own.

The route is worth planning early, because it costs time and a late application can disrupt the timetable the 1996 Act sets for the award. Where the holder is a party but abroad, the request-and-inference route usually remains the faster lever, since the pressure of a looming adverse inference often produces the document that a cross-border enforcement effort would take months to extract. Section 27 is for the document that only a stranger to the arbitration holds, and that the case genuinely cannot be decided without.

How R & D Law Chambers Works on These Matters

R & D Law Chambers LLP advises parties in India-seated and cross-border arbitration at the evidentiary stage: framing and resisting document-production requests, preparing and answering Redfern Schedules, and building or meeting applications for an adverse inference where a request goes unanswered. The practice also advises on applications under section 27 for the court’s assistance where a relevant document is held by a person outside the arbitration.

The firm’s work in domestic and international arbitration is described here: International and Domestic Arbitration.

Related services and reading

International arbitration lawyers in India for cross-border disputes

Commercial disputes and litigation lawyers in Ahmedabad, for the court work that runs alongside a reference, including an application under section 27

Comparing the ICC, SIAC and LCIA rules

Foreign seat, Indian counterparty: drafting the cross-border arbitration clause

Drafting the evidence affidavit and the law of cross-examination in commercial arbitration

This note is general information on the law of document production in India-seated arbitration. It is not legal advice, does not create a lawyer-client relationship, and should not be acted on without advice on the facts of a specific matter.